



WARNING

This is
    a case under the
Child, Youth and Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the consequences of failure to comply,
    read as follows:

87
(8)
Prohibition
    re identifying child

 No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

(9)
Prohibition re
    identifying person charged
 The
    court may make an order prohibiting the publication of information that has the
    effect of identifying a person charged with an offence under this Part.

142
(3)
Offences re publication

 A person who contravenes subsection 87(8) or 134(11) (publication of
    identifying information) or an order prohibiting publication made under clause
    87(7)(
c
) or subsection 87(9), and a director, officer or employee of a
    corporation who authorizes, permits or concurs in such a contravention by the
    corporation, is guilty of an offence and on conviction is liable to a fine of
    not more than $10,000 or to imprisonment for a term of not more than three
    years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION:
P.Y. v.
    Ontario (Attorney General), 2021 ONCA 761

DATE: 20211028

DOCKET: C67741

Benotto, Huscroft and Thorburn JJ.A.

BETWEEN

P.Y. and A.Y.

Plaintiffs (Appellants)

and

The Attorney General of Ontario, Toronto Police
    Services Board, The Police Chief William Blair, Police Constable Lee Ann West,
    Police Constable Sidhu Sarbjeet, and Laurie Gonet

Defendants (Respondents)

P.Y. and A.Y., acting in person

Domenic Polla, for the respondents The Attorney General
    of Ontario and Laurie Gonet

Graham Thomson, for the respondents Toronto Police
    Services Board, The Police Chief William Blair, Police Constable Lee Ann West, and
    Police Constable Sarbjeet Dhugha

Heard: September 8, 2021 by video conference

On appeal from the judgment of Justice Lorne Sossin of
    the Superior Court of Justice, dated October 22, 2019.

Benotto J.A.:

Overview

[1]

In 2011, P.Y. (the father) and A.Y. (the mother)
    were criminally charged with thirteen counts relating to the alleged abuse of
    their four children: Y.N.Y., M.L.Y., S.C.H.Y., and M.K.Y. After a preliminary
    inquiry, it was determined that the parents would stand trial on seven of the
    thirteen charges. All four children were removed from their parents care by
    the Catholic Childrens Aid Society (CCAS) and became Crown wards. A
    different Crown Attorney was assigned the case and charges were withdrawn,
in
    part, because Y.N.Y. and M.L.Y. were reluctant to testify and see their parents
    in court
.

[2]

P.Y. and A.Y. sued the Attorney General of
    Ontario, Laurie Gonet who was the Assistant Crown Attorney originally assigned
    to prosecute the case, the CCAS, the Crown, the Toronto Police Services Board
    (TPSB), former Police Chief William Blair, Lee Ann West (Officer West), and
    Sarbjeet Dhuga (Officer Dhuga).

[3]

The defendants brought a successful motion for
    summary judgment under r. 20 of the
Rules of Civil
    Procedure
, R.R.O.
    1990, Reg. 194
and the action was dismissed.

[4]

P.Y. and A.Y. now appeal.

[5]

I would dismiss the appeal.

Facts

Charges against the appellants

[6]

In March of 2011, an employee of the CCAS reported a possible case of
    child abuse involving the appellants son and oldest child, Y.N.Y., to Officer
    Dhuga. In April of 2011, Officer Dhuga and Officer West attended the appellants
    home and spoke with the appellants and their children. At that time, Officer
    Dhuga believed that the injuries had occurred at school and that there were
    insufficient grounds to support any further criminal investigation.

[7]

On November 16, 2011, a different worker with the CCAS advised Officer
    West that M.L.Y. had followed a classmate home after school because she was
    afraid to go home. The worker told Officer West that M.L.Y. told her that the
    mother had whipped her, pushed her off a chair, stepped on her stomach, and
    choked her because she had spoken with a Society worker at school. M.L.Y. said
    the same thing had happened to Y.N.Y. because he spoke to a social worker. She
    said that she did not want to get hit anymore.

[8]

On November 16, 2011, M.L.Y. was formally interviewed. In the video
    recording the child stated:

·

The parents put hot peppers in her eyes, ears, nose, and armpits
    as punishment.

·

The parents punished her with a cold bath for two hours.

·

The father whipped her with a shoehorn leaving a scar on her leg.

·

She had been hit with a belt approximately 45 times, most
    recently on November 14, 2011, two days before the interview.

·

The mother had slapped her, pushed her to the ground, and stepped
    on her stomach and throat.

·

That morning, the mother had punched her in the stomach, pushed her
    off a chair, pushed her so that she hit her head, pushed her up against a wall,
    threw her onto the floor, and stepped on her stomach.

[9]

Both parents were arrested and charged.

[10]

On
    November 17, 2011, M.L.Y. was examined at the Hospital for Sick Children. Officer
    West received the results. The examination revealed two long parallel marks on
    M.L.Y.s leg that the examining doctor noted likely occurred because of the
    impact of an object. The examination also revealed other non-specific markings
    on M.L.Y.s body that could be consistent with other injuries, though the dates
    of these injuries and whether they were intentionally inflicted could not be
    confirmed. M.L.Y. was also seen by a psychologist. The Toronto Police Service
    (TPS) obtained copies of these medical records.

[11]

On
    November 18, 2011, Officer Dhuga formally interviewed the three other children,
    who corroborated M.L.Y.s statement. Y.N.Y. stated that the parents had
    repeatedly assaulted the children including using their hands, a belt, and a
    shoe. The TPS obtained a medical record from the Trillium Health Centre, which
    confirmed that between September and November of 2011, Y.N.Y. had been treated
    for a laceration to his right ear caused by being pushed into a wall.

[12]

P.Y.
    was charged with additional offences as a result of Y.N.Y.s disclosures.

[13]

In
    December 2011, M.L.Y. made an additional allegation that her father had placed
    hot pepper sauce in her vagina. A medical examination could neither confirm nor
    deny that this had occurred.

[14]

By
    January 6, 2012, there were thirteen charges against the appellants. Crown
    Attorney Laurie Gonet was assigned to the case. She reviewed the Crown brief
    and all the materials provided by the police, including the investigators
    notes, the video recordings, transcripts of the interviews of the witnesses,
    and the medical evidence. She was satisfied that there was a reasonable
    prospect of conviction on the charges against the appellants and that it was in
    the public interest to proceed with the prosecution.

The preliminary inquiry

[15]

The
    preliminary inquiry took place over six days. M.L.Y. and Y.N.Y. gave evidence
    consistent with their statements.

[16]

On
    the final day of the preliminary inquiry on April 2, 2013, Ms. Gonet invited
    the court to discharge the appellants on five of the thirteen counts, on the
    basis either that there was no evidence in respect of those counts or that
    there were issues with respect to the dates alleged in the Information. The court
    also discharged certain counts. Ms. Gonet further requested that the court
    amend three of the counts to lesser offences than those originally charged and
    submitted that the evidence supported three new counts being added.

[17]

The
    court committed the appellants to trial on seven counts: two joint counts;
    three as against the father; and two as against the mother.

[18]

The
    appellants trial was scheduled for June 9, 2014. As a result of a scheduling
    conflict, carriage of the file was transferred to another Crown, who withdrew
    the charges on the first day of trial, apparently, in part, because Y.N.Y. and
    M.L.Y. were reluctant to testify and see their parents in court.

Child protection proceedings

[19]

Meanwhile,
    on October 7, 2013, Curtis J. found the appellants four children in need of protection and
    made them Crown wards, without access to their parents: see
Catholic
    Childrens Aid Society of Toronto v. A.M.Y.
, 2013 ONCJ 585. The
    appellants appeal to the Superior Court of Justice was dismissed: see
CCAS
    Toronto v. AMY and PY
, 2014 ONSC 6526. Their further appeal to this court
    was dismissed: see
Catholic Childrens Aid Society of Toronto v. A.Y.
,
    2015 ONCA 493. The Supreme Court of Canada dismissed the appellants
    application for leave to appeal on December 24, 2015: see
A.Y. v. Catholic
    Childrens Aid Society of Toronto
, [2015] S.C.C.A. No. 415.

Action against the respondents

[20]

On
    June 8, 2016, P.Y. and A.Y. issued a Statement of Claim against the
    respondents, claiming damages of $2,000,000 for improper arrest, improper
    charges, false imprisonment, malicious prosecution, negligent investigation,
    obstruction of justice, defamation, breach of statutory duty, and misfeasance
    in public office. They also sought $1,000,000 in exemplary damages, an amount
    for special damages to be determined, and a further $1,000,000 for general,
    aggravated and responsibility damages.

Motion for summary judgment

[21]

The
    respondents moved for summary judgment pursuant to r.
20 of
    the
Rules of Civil Procedure
. The
    motion judge granted summary judgment. In doing so he concluded the following:

1.

The claims against the police defendants for false
    arrest, false imprisonment, negligence, negligent investigation, and breaches
    of the
Charter
could not succeed because no
    liability flows to the TPSB or to Police Chief Blair based on the actions of
    individual officers and because there was no evidence of improper or negligent
    supervision.

2.

The
claims against the police defendants were barred by
    the
Limitations Act, 2002
,
    S.O. 2002, c.24 (the 
Limitations Act
)
as they were outside the two-year
    limitation period.

3.

Even
if the claims were not time barred, there were
    reasonable and probable grounds for investigating, arresting, and charging the parents.

4.

With respect to the
claims against the Attorney General
    for malicious prosecution and malfeasance in public office, Crown Attorneys
    have immunity from being personally named in an action for damages alleging
    prosecutorial misconduct; in these cases, the Attorney General is the proper
    defendant. The motion judge dismissed the claim against Ms. Gonet personally. With
    respect to the Attorney General, malicious prosecution only arises where a
    Crown prosecutor acts outside the role of a prosecutor and objectively
    prosecutes without reasonable and probable grounds and for improper purposes.
    The motion judge found the parents submissions appeared more aimed at attacking
    the removal of their children than the Crowns liability for malicious
    prosecution. He also found Crown counsel relied on the evidence in good faith,
    and that there was enough evidence with which to prosecute, as confirmed by the
    preliminary inquiry resulting in the committal to stand trial.

5.

T
he other claims the parents brought forward 
    including defamation, obstruction of justice, and breach of statutory duty 
    were bald assertions unsupported by the record or law.

[22]

Consequently, the motion judge concluded that
there
    were no genuine issues for trial.

Issues

[23]

P.Y. and A.Y. appeal on the following grounds:

1.

The motion judge erred in finding summary
    judgment appropriate under the circumstances.

2.

The motion judge erred in finding the action
    barred by the
Limitations Act
.

3.

The motion judge erred in finding there was not
    malicious prosecution and obstruction of justice, and by finding reasonable and
    probable grounds for arrest, imprisonment, investigation, and prosecution.

4.

The motion judge erred in finding immunity for
    the Crown prosecutor on constitutional grounds.

Analysis

Appropriateness of summary judgment

[24]

The appellants argue that summary judgment here
    amounts to lack of due process and equal protection. They say that they were
    not given the opportunity to fully present their case. They requested ten days
    for a trial. The motion was scheduled for two days. After two days, the motion
    judge concluded that he could fairly determine that a trial was not required.

[25]

The motion judge correctly applied the test in
Hryniak v. Mauldin
,

2014
    SCC 7,

[2014] 1 S.C.R. 87,
at
    para 49. Summary judgment may be granted when the process (1) allows the judge
    to make the necessary findings of fact, (2) allows the judge to apply the law
    to the facts, and (3) is a proportionate, more expeditious and less expensive
    means to achieve a just result. The motion judge determined that, after two
    days of the motion, and based on the written record, he was able to make
    findings of fact and apply the law.
The purpose of a
    summary judgment motion is to determine claims expediently and justly
; a
    full trial was not necessary to reach this result.

[26]

The motion judge is afforded deference in exercising
    his discretion to determine that he could fairly decide by summary judgment. I
    see no unfairness in this process.

The limitation periods

[27]

The motion judge determined that the last day on
    which a discoverable claim arose against the police defendants for false arrest
    and imprisonment was at the time of their arrest and imprisonment in November
    2011. For negligence and negligent investigation, the latest date for
    discoverability was when the last charge was added in April 2013. The same
    limitation applies to the
Charter
issues. The claims were not started until June 2016, which was too
    late under the
Limitations Act
two-year
    limitation period. The motion judge made no error in this regard.

Malicious prosecution

[28]

As determined by the motion judge,
even
if
    the claims were not time barred, there were reasonable and probable grounds for
    investigating, arresting, and charging the appellants, both objectively and
    subjectively as required by the malicious prosecution inquiry.

[29]

There is a high standard to find malicious
    prosecution: see
Hinse v. Canada (Attorney General)
, 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 40. There must be no
    reasonable and probable cause for the prosecution and the prosecution must be
    motivated by malice: see
Miazga v. Kvello Estate
,

2009 SCC 51,

[2009]

3 S.C.R. 339,
at para 3.
Miazga
, at para. 58

sets out the principle that the reasonable
    and probable cause inquiry comprises both a subjective and an objective
    component such that the prosecutors must have an actual belief that is
    reasonable in the circumstances. The motion judge found that there was
    reasonable and probable cause to initiate the prosecution, and deference should
    be afforded to his determination. Further, Officers Dhuga and West stated in
    their affidavit that they believed that there were reasonable and probable
    grounds for arrest. This satisfies the subjective element. The evidence,
    including information provided by the children, confirms that there were
    objectively reasonable grounds to arrest P.Y. and A.Y. and lay charges against
    them.

[30]

At any rate, the prosecution had adequate
    evidence to prosecute, including testimony from the children and physical
    evidence. There is no basis to interfere with the motion judges determination
    that the claims against the Attorney General do not require a trial. There was
    no evidence of the prosecutors malicious intent on the part of the prosecutor or
    undue pressure by the CCAS.

Immunity for Crown prosecutor

[31]

Section 8 of the
Ministry
    of the Attorney General Act
provides that Crown
    prosecutors are personally immune from acts performed in their duty as a Crown
    attorney. Such immunity is not a constitutional violation, as the Attorney
    General stands in as the defendant who may be held accountable if there is an
    action that properly can be brought against the Crown attorney. The motion
    judge correctly determined that there was no genuine issue requiring trial
    against Crown prosecutor Ms. Gonet.

Disposition

[32]

For these reasons, I would dismiss the appeal.

[33]

If the respondents seek costs, I would request written submissions
    from the parties of no more than 3 pages to be delivered within 14 days of the
    release of this decision.

Released: October 28, 2021 MLB

M.L. Benotto J.A.

I agree. Grant Huscroft
    J.A.

I agree. Thorburn
    J.A.


