Case: Parsaei v. Toronto (Police Services Board), 2017 ONCA 512 (CanLII)
Keywords: Wrongful Arrest; Reasonable and Probable Grounds; Hryniak v. Mauldin, 2014 SCC 7 (CanLII),  S.C.J. No. 7 (S.C.C.)
This matter arises from the Appellant’s complaints about the way in which her son was treated by school staff and disagreements regarding who won (or should have won) a spelling bee at the school. The Appellant appeals from a summary judgment decision dismissing her action against the Respondents, Toronto Police Services Board and Detective Constable Andrew MacPhail, for wrongful arrest and negligent investigation of criminal charges. The appellant and two other women were charged criminally in connection with:
- a series of threatening letters posted around and mailed to residents near Perth Avenue Public School in Toronto;
- a series of related hostile and harassing phone calls to staff, the principal of the school, and members of the Toronto District School Board; and
- an harassing letter sent to a member of the Board.
Summary judgment was granted against the Appellant on the basis there was no genuine issue for trial; the police had reasonable and probable grounds to believe the Appellant had committed the offences with which she was charged.
On appeal, the Appellant argues the Motion Judge erred in finding there was no genuine issue for trial because “the case was at an early stage and contested facts [had] not …. been subjected to cross examination”; and in finding that the police had reasonable and probable grounds to lay the charges in the first place.
The Court of Appeal dismisses both grounds of appeal; finds no reason to reverse the motion judge’s decision.
With respect to the Appellant’s first ground, the Court of Appeal found the argument summary judgment should not have been granted on the basis proceedings were still at an early stage in their development “overlooks the direction provided by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII),  S.C.J. No. 7 (S.C.C.), at paras. 49 and 66, that summary judgment is to be granted where the record enables to motion judge to reach a fair and just determination on the merits and to do so in a timely, more affordable and proportionate manner.” (See para. 10).
For the Court of Appeal there was ample evidence to support the motion judge’s finding that the police had reasonable and probable grounds to arrest the appellant and to lay the charges, including:
- an “exhaustive” affidavit from Detective Constable MacPhail setting out the particulars of the investigation, documentation obtained, and a lengthy summary of the facts supporting the existence of reasonable and probable grounds;
- transcripts of the preliminary hearing and the criminal trial;
- evidence Detective Constable MacPhail consulted two Crown Attorneys prior to laying the charges and had been advised there was ample evidence to support his doing so; and
- the reasons of Justice Cavion from the Appellant’s criminal trial. (See para. 12).
The Court was careful to distinguish between what is involved in demonstrating whether reasonable and probable grounds support an arrest/charges against the Appellant and what the Crown has to prove: guilt (i.e. the factual and mental elements of an offence) beyond a reasonable doubt. (See para. 16).
Citing Richardson v. Vancouver (City), 2006 BCCA 36 (CanLII), a case in which police were sued for wrongful arrest by a plaintiff relying on their acquittal on the charge of obstructing justice, the Court of Appeal found it is improper to conflate issues pertaining to criminal responsibility and those pertaining to the civil liability of police. (See para. 16). The mere fact of the Appellant’s acquittal was not enough, in the circumstances of this case, to warrant a finding against the Respondents.
Counsel for the Appellant: James Morton (Morton Barristers, North York)
Counsel for the Respondents: Rebecca Bush and Kathryn Shani (Borden Ladner Gervais LLP, Toronto)