



COURT OF APPEAL FOR ONTARIO

CITATION: D'Addario v. Smith, 2018 ONCA 163

DATE: 20180220

DOCKET: C61356

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Frank DAddario

Plaintiff (Appellant)

and

Betty Smith and Chris
    Napior

Defendants (Respondents)

AND BETWEEN

Betty Smith and Chris
    Napior

Respondents (Plaintiffs by Counterclaim)

and

Frank DAddario and
    Ferne DAddario

Appellants (Defendants by Counterclaim)

Joseph W. L. Griffiths, for the appellants

Jeff G. Saikaley and Ronald F. Caza for the respondents

Heard: November 6, 2017

On appeal from the order of Justice Robert N. Beaudoin of
    the Superior Court of Justice, dated October 27, 2015, with reasons reported at
    2015 ONSC 6652, and judgment dated April 18, 2017.

Huscroft J.A.:

OVERVIEW

[1]

Frank DAddario brought an action against the
    respondents, Betty Smith and her nephew Chris Napior, for malicious prosecution,
    arising out of criminal sexual assault charges that were brought against him,
    but eventually stayed. Betty Smith counterclaimed for sexual assault, and Chris
    Napior counterclaimed for defamation arising out of comments that were made by
    Frank DAddario and his wife Ferne to Napiors priest.

[2]

The trial judge dismissed Frank DAddarios malicious
    prosecution claim following a non-suit motion brought by the respondents.

[3]

The jury found that Betty Smith had not been
    sexually assaulted by Frank DAddario, and her counterclaim for sexual assault
    was dismissed.

[4]

The trial judge withdrew Frank and Ferne
    DAddarios defence of qualified privilege from the jury. The jury then found them
    jointly liable for defamatory statements made to Chris Napiors priest and
    awarded Napior damages of $25,000.

[5]

Frank DAddario appeals from the trial judges
    decision dismissing his action for malicious prosecution. Frank and Ferne
    DAddario appeal from the trial judges decision to withdraw their qualified
    privilege defence from the jury. Ferne DAddario appeals from the decision
    permitting the jury to consider the allegation of joint liability for the allegedly
    defamatory statements made by Frank.

[6]

In my view, the judge properly granted the
    motion for a non-suit, properly withdrew the defence of qualified privilege
    from the jury, and properly instructed the jury on the question of joint
    liability for defamation.

[7]

I would dismiss the appeal for the reasons that
    follow.

BACKGROUND

[8]

Frank and Ferne DAddario founded Environmental
    Management Solutions (EMS) in 1995. In 2005, Frank DAddario lost control of
    the company and his employment with EMS was terminated. His business
    relationship with Betty Smith and Chris Napior began shortly afterwards, when
    he enlisted their support in an attempt to regain control of the company.

[9]

Although Frank DAddario reached a settlement
    with EMS subsequently, his relationship with Smith and Napior became
    acrimonious. The details need not be recounted here.

[10]

In 2006, Betty Smith complained to the
    Huntsville O.P.P. that she had been sexually assaulted by Frank DAddario. Her
    complaint was investigated by Constable Brooke McRoberts, who interviewed Smith
    and Napior. DAddario was charged with sexually assaulting Betty Smith at
    Casino Rama in September 2005 and at an Ottawa restaurant in July 2005.

[11]

Following the laying of the charges, Frank and
    Ferne DAddario met with Napiors priest, Father Kerslake, at their request.
    Father Kerslake reported statements made at the meeting to Napior and Smith. Those
    statements alleged that Napior: (i) is the town drunk; (ii) is an alcoholic;
    (iii) is abusing his position with the Church; (iv) is dishonest and cannot be
    trusted; and (iv) falsely alleged to police that Frank DAddario sexually
    assaulted Betty Smith.

[12]

The sexual assault charges against Frank
    DAddario were stayed before they went to trial. DAddario brought a claim
    against Smith and Napior for a number of causes of action including malicious
    prosecution. All of his claims, except for malicious prosecution, were
    abandoned before trial. Betty Smith counterclaimed for sexual assault in
    relation to the two alleged incidents that formed the subject matter of the
    criminal charges. Chris Napior counterclaimed against both Frank and Ferne
    DAddario for defamation arising out of statements made to Father Kerslake.

THE DECISION under appeal

(1)

The trial judges decision on the motion for
    non-suit

[13]

The trial judge set out the test for a non-suit as
    follows: The defendant must satisfy the trial judge that the evidence is such
    that no jury, acting judicially, could find in favour of the plaintiff.

[14]

The trial judge noted that the bar for
    establishing malicious prosecution is set very high, in order not to discourage
    citizens from giving statements to police. Citing
Kefeli v.
    Centennial College of Applied Arts and Technology
(2002),
    23 C.P.C. (5th) 35 (Ont. C.A., in Chambers), the trial judge observed that the police
    officer who lays a charge will generally be the person who initiated the
    prosecution. However, in exceptional circumstances a private citizen or
    complainant can be found to have initiated a prosecution, provided that there is
    evidence that, if true, could lead the jury to reasonably conclude that the
    police were unable to exercise independent discretion as a result of the
    defendants actions.

[15]

The trial judge concluded there was no evidence from
    which it could be inferred that Constable McRoberts was unable to exercise
    discretion or judgment, and that the only evidence was to the contrary. He explained,
    at paras. 49-51:

Even if it were accepted that the
    defendant[s] statements to Constable McRoberts were false, that fact alone is
    not enough for a jury to conclude that they initiated the prosecution. Much
    more was required to meet the high bar of malicious prosecution. There has to
    be evidence that the defendants withheld exculpatory evidence; that they
    pressured the police in laying the charges or somehow compromised the
    independence of the prosecution. Other witnesses were identified by them and
    Constable McRoberts was aware of them but determined that these were not
    necessary for her investigation and she exercised her discretion independently.
    In light of the foregoing, there is no evidence that, if true, would lead the
    jury to conclude that Ms. Smith initiated the proceedings against Mr.
    DAddario. As such, the claim of malicious prosecution as against Ms. Smith
    must fail and therefore, ought not to be put to the jury.

There is no evidence that Mr.
    Napior contacted the police much less that he initiated the proceedings. Mr.
    Napior did not alert the police and was responding to inquiries from the
    police. Constable McRoberts testified that Mr. Napior was acting solely in his
    capacity as a witness and that any communications that she had with Mr. Napior
    were as a result of Ms. Smith having identified him as a witness to both
    incidents of sexual assaults.

Again, there is no evidence that
    could lead the jury to conclude that Mr. Napior initiated the proceedings
    against Mr. DAddario. As such, the claim of malicious prosecution as against
    Mr. Napior must fail and therefore, ought not to be put to the jury.

[16]

The trial judge concluded that the allegedly
    defamatory statements made to Father Kerslake were not made on a recognized
    occasion of qualified privilege and that the DAddarios did not satisfy the
    onus of creating a new occasion of qualified privilege. Although Father
    Kerslake may have had an interest or duty to receive information regarding a
    member of his parish, the DAddarios did not have a corresponding duty or
    interest to make the statements to him. A reasonable person would not feel
    compelled to seek out a parish priest from a church to which he or she does not
    belong to make the type of statements that were made. The communications were
    not of a spiritual nature and the DAddarios admitted that they were not meeting
    Father Kerslake for a religious or spiritual purpose. Accordingly, the trial
    judge withdrew the DAddarios qualified privilege defence from the jury.

(2)

The jury charge

[17]

After dismissing the motion for non-suit, the trial
    judge went on to charge the jury on joint liability for defamation. Following discussions
    with counsel, the jury was asked whether Ferne DAddario was jointly liable
    with Frank DAddario for damages.

(3)

The jury verdict

[18]

The jury found that:

·

Frank DAddario did not sexually assault Betty Smith.

·

Frank DAddario said to Father Kerslake: Chris
    Napior is an alcoholic, which was defamatory. Ferne did not herself make that
    statement, but was jointly liable with Frank DAddario for general damages of
    $10,000.

·

Frank DAddario said to Father Kerslake: Chris
    Napior is abusing his position with the Church, which was defamatory. No
    damages were assessed for this statement.

·

Frank DAddario said to Father Kerslake: Chris
    Napior is dishonest and cannot be trusted, which was defamatory. Ferne did not
    herself make that statement, but was jointly liable with Frank for general damages
    of $10,000.

·

Both Frank and Ferne DAddario said to Father
    Kerslake: Chris Napior falsely alleged to the police that Frank DAddario
    committed sexual assault against an elderly lady, which was defamatory. They
    awarded $5,000 in general damages against both Frank and Ferne.

ISSUES

[19]

The issues on appeal are:

1.

Did the trial judge err in granting the respondents
    motion for non-suit?

2.

Did the trial judge err in concluding that Frank
    and Ferne DAddarios communications with Father Kerslake were not protected by
    the defence of qualified privilege?

3.

Did the trial judge err in permitting the
    allegation of joint liability for the defamation to go to the jury?

DISCUSSION

(1)

Did the trial judge err in granting the motion
    for non-suit?

[20]

The appellants submit that the trial judge made
    numerous errors in granting the respondents non-suit motion. In particular,
    they argue that the trial judge did not appropriately apply the test for a
    non-suit motion and, instead, effectively made factual findings against Frank
    DAddario. In essence, they submit that Betty Smith and Chris Napior conspired
    to have Frank DAddario falsely charged. In light of the jurys conclusion that
    Smith was not sexually assaulted by DAddario, the only reasonable inference is
    that Smith and Napior lied to the police. But for these lies, the appellants contend,
    Frank DAddario would not have been charged. This is evidence from which a
    trier of fact could have found liability. Whether Smith and Napior lied,
    thereby initiating the prosecution, was a question that was for the jury, not
    the trial judge on the non-suit motions. Further, on a fair reading of the
    plaintiffs evidence, the other witnesses to the alleged sexual assault were
    compromised by Smith, such that even if Constable McRoberts had interviewed them,
    she could not have done anything but continue with the investigation.

[21]

This submission must be rejected.

[22]

There is no dispute as to the proper legal test
    on a motion for a non-suit. As this court explained in
FL
    Receivables Trust 2002-A v. Cobrand Foods Ltd.
, 2007 ONCA
    425, 85 O.R. (3d) 561, at paras. 35-36:

On a non-suit motion, the trial judge undertakes a limited
    inquiry. Two relevant principles that guide this inquiry are these. First, if a
    plaintiff puts forward some evidence on all elements of its claim, the judge
    must dismiss the motion. Second, in assessing whether a plaintiff has made out
    a
prima facie

case, the judge must assume the evidence to be
    true and must assign the most favourable meaning to evidence capable of
    giving rise to competing inferences.



In other words, on a non-suit motion the trial judge should not
    determine whether the competing inferences available to the defendant on the
    evidence rebut the plaintiffs
prima facie

case. The trial
    judge should make that determination at the end of the trial, not on the
    non-suit motion.

[23]

The question for the trial judge was whether the
    jury could find that Smith and Napior were liable for malicious prosecution. As
    the Supreme Court set out in
Nelles v. Ontario
,
    [1989] 2 S.C.R. 170, at pp. 192-193, there are four elements of the tort of
    malicious prosecution, each of which must be established on a balance of
    probabilities:

·

The proceedings must have been initiated by the
    defendant;

·

The proceedings must have terminated in favour
    of the plaintiff;

·

There is an absence of reasonable and probable
    cause; and

·

There is malice, or a primary purpose other than
    the carrying of the law into effect.

[24]

Malicious prosecution is difficult to establish.
    It is even more difficult to establish if a plaintiff seeks to establish that a
    private party is liable, as opposed to the police. Absent exceptional
    circumstances, the court will view the police officer who laid the charge as
    being the person who initiated the prosecution:
Kefeli
,
at para. 24.

[25]

The first element of the test from
Nelles
requires that the proceedings must have been initiated by the
    defendants  in this case, Smith and Napior. This court has discussed the
    circumstances in which a private party can be found to have initiated a
    prosecution in a series of cases. See
Kefeli
, at paras. 24-25;
McNeil v. Brewers
    Retail Inc.
, 2008 ONCA 405, 66 C.C.E.L. (3d) 238, at
    paras. 44-56; and, most recently,
Pate Estate v. Galway-Cavendish
    and Harvey (Township)
, 2013 ONCA 669, 117 O.R. (3d) 481,
    at paras. 21-89. In
Pate Estate
, the court
    made clear that the test is a high bar, but it is not necessary to demonstrate
    that it was
virtually
    impossible for the police to exercise any independent discretion or judgment.

[26]

In this case, there was no evidence that Smith
    or Napior interfered with or undermined the independence of the investigation. The
    trial judge considered and rejected the argument that the mere provision of a
    false statement was sufficient to meet the test of initiating a prosecution. A
    false statement may cause the police to investigate, but there was no evidence
    from which it could reasonably be inferred that Constable McRoberts did not exercise
    her discretion independently.

[27]

This conclusion is clearly supported on the
    record that was before the trial judge. Constable McRoberts testified that she
    formed the view that there were reasonable grounds to charge Frank DAddario after
    conducting her own investigation, which included interviewing Smith and Napior.
    Constable McRoberts acknowledged that she was aware of two additional
    eyewitnesses who were present at the assault alleged to have taken place in
    July 2005 and asked Ottawa police to follow-up, but they did not do so and she
    did not consider the matter important to her investigation.

[28]

Constable McRoberts acknowledged her receipt of
    correspondence from Smith but said that it had no effect on her investigation.
    The decision to charge was hers alone, and she decided to exercise her
    discretion to lay the charge after consulting with a supervising officer. She
    noted that she effectively has no choice but to lay charges where an allegation
    of sexual assault occurs in the context of parties that are dating or
    cohabiting, but she was satisfied that Smith and Frank DAddario were not
    involved in a romantic relationship.

[29]

In summary, taking the evidence at its highest
    for Frank DAddario, the only reasonable conclusion was that Constable
    McRoberts exercised her own independent discretion to lay the charge. It
    followed that Smith and Napior could not be found to have initiated the
    prosecution. The trial judge did not err in granting the non-suit motion.

(2)

Did the trial judge err in concluding that the communications
    were not protected by qualified privilege?

[30]

The appellants proffered no authority
    establishing that communications to priests are a recognized occasion protected
    by the defence of qualified privilege. The onus was on the appellants to
    establish a new occasion of qualified privilege  that they had an interest or
    duty to make the statements and that Father Kerslake had a corresponding
    interest or duty to receive them. They failed to do so.

[31]

The appellants submit that the trial judge
    overlooked their personal interest in having Chris Napiors priest know about
    and speak to him about his behaviour. They say that Father Kerlake was Napiors
    spiritual leader and that he, like the appellants, had an interest in
    addressing Napiors sudden shift in behaviour and alarming increase in his
    drinking and was in a position to do so.

[32]

There is no merit to this submission.

[33]

The DAddarios did not attend Napiors church
    and they admitted that they were not meeting with Father Kerslake for a
    religious or spiritual purpose. Even if Father Kerslake had an interest or duty
    to receive information concerning a member of his parish, it could not be said
    that the DAddarios  strangers to the parish  had a corresponding duty to
    make the statements to him. Indeed, so surprised was the priest to receive the DAddarios
    allegations that he consulted his vicar general, who is involved in legal
    matters and important problems.

[34]

The trial judges conclusion that the statements
    were not made on an occasion of qualified privilege is fully supported by the
    record and is reasonable. There is no basis for this court to interfere with it
    on appeal.

(3)

Did the trial judge err in permitting the
    allegation of joint liability for the defamation to go to the jury?

[35]

Ferne DAddario submits that the trial judge
    acted unfairly in permitting the respondents to add an allegation of joint
    liability for defamation after they had closed their case. Further, she
    contends that the trial judge erred in putting the issue of joint liability to
    the jury because there was no evidence that she had acted in concert with Frank
    DAddario to defame Napior.

[36]

I would reject these submissions.

[37]

It is clear from the pleadings that the
    respondents claimed damages against Frank and Ferne DAddario jointly and
    severally. This was not an allegation made late at the 11
th
hour,
    as Ferne asserts. Moreover, when the trial judge was reviewing the jury
    questions with the parties, counsel for the DAddarios  who conducted a joint
    defence  requested that the questions distinguish between the speakers. In
    particular, he requested that the jury be asked what Frank DAddario said and
    what Ferne DAddario said, rather than what the DAddarios said. This request
    was accommodated, and no objection was taken to the charge. There is no merit
    to the submission that the joint liability issue was unfairly raised.

[38]

The trial judge instructed the jury that it was
    open to them to find Frank and Ferne DAddario jointly liable for the
    statements if they planned to meet Father Kerslake to say the words complained
    of, even if only one of them said the words. It was enough that there was a
    common plan.

[39]

He did not err in doing so.
In
Botiuk
    v
.
Toronto Free Press
    Publications Ltd.
, [1995] 3 S.C.R. 3, at pp. 27-28, the
    Supreme Court of Canada adopted the law as set out by John Fleming:

The critical element of [concerted action
    liability] is that those participating in the commission of the tort must have
    acted in furtherance of a common design. Broadly speaking, this means a
    conspiracy with all participants acting in furtherance of the wrong, though it
    is probably not necessary that they should realise they are committing a tort.

[40]

It is noteworthy that the jury found Ferne
    DAddario did not make three of the four statements complained of. The jury
    found that she made the statement that Napior had falsely alleged to the police
    that Frank DAddario had sexually assaulted an elderly lady.

[41]

As this court noted in
Rutman v.
    Rabinowitz
,
2018 ONCA 80, at
    para. 34, concerted action liability arises when a tort is committed in
    furtherance of a common design or plan, by one party on behalf of or in concert
    with another party. It is a fact specific concept. It was open to the jury to
    conclude that Ferne DAddario was no mere passive observer at the meeting with Father
    Kerslake. Ferne, along with Frank, had requested the meeting. Her evidence was
    that she thought the priest should know what Napior had done. She acknowledged
    that we talked about Napior.

[42]

In all of these circumstances, it was open to
    the jury to conclude that the DAddarios were acting in furtherance of a common
    plan to cause harm to Napior, and to find Ferne DAddario jointly liable for
    the statements made by Frank DAddario.

Conclusion

[43]

I would dismiss the appeal.

[44]

The respondents are entitled to costs, fixed at
    $15,000, inclusive of disbursements and HST.

Released:

KF                                         Grant
    Huscroft J.A.

FEB 20 2018                          I agree K. Feldman
    J.A.

I agree
    J.C. MacPherson J.A.


