Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: Land v. Dryden (Police Services Board), 2023 ONCA 207

DATE: 20230324

DOCKET: C69812

Fairburn A.C.J.O., Simmons and Zarnett JJ.A.

BETWEEN

Jonathan Land and Stephanie Flora Henry

Appellants

and

Dryden Police Services Board and its employees: Sgt Scott M. Silver; Cst. Jared H. Olsen, Cst. Paul A. Howarth, Cst. Kevin Hildebrand and Anishinaabe Abinoojii Family Services and its employees: Danielle Gardner and Karen Taylor

Respondents

Jonathan Land, acting in person

Stephanie Henry, acting in person

Stuart Blake and Kelsey Yakimoski, for the respondents Dryden Police Services Board and its employees: Sgt Scott M. Silver, Cst. Jared H. Olsen, Cst. Paul A. Howarth, Cst. Kevin Hildebrand

Abram Silver and Darryl Buxton, for the respondents Anishinaabe Abinooji Family Services and its employees: Danielle Gardner and Karen Taylor

Heard: January 26, 2023

On appeal from the judgment of Justice John S. Fregeau of the Superior Court of Justice, dated May 31, 2021, with reasons reported at 2021 ONSC 3798.

Simmons J.A.:

Introduction

[1]          The appellants, Jonathan Land and Stephanie Henry, appeal from a summary judgment dismissing their action against the respondents.

[2]          The action arose from events that occurred on November 24, 2015. The Dryden police service received information that Ms. Henry appeared to be under the influence of alcohol when she picked up the appellants’ seven-year-old daughter from school. Officers Silver, Olsen and Bisignano immediately went to the appellants’ home to check on the child.

[3]          At least one of the officers saw Ms. Henry arrive home in a taxi with the child. According to affidavits filed by the officers, both appellants appeared to have been consuming alcohol. When advised of the officers’ request to see and speak with the child, both responded with obscenities. Although at one point the child was brought to the door, the appellants did not permit the officers to enter the home; nor were the officers able to interact with the child. From what the officers could see, the child appeared “teary eyed and upset”.

[4]          The officers left the home and contacted the local children’s aid society, Anishinaabe Abinoojii Family Services (the “Society”). A short time later, a Society worker, Ms. Gardner, requested police assistance to conduct a welfare check on the child. Officers Silver, Olsen and Howarth met Ms. Gardner at the appellant’s home to assist her.

[5]          In an affidavit filed on the motion, Ms. Gardner deposed that when she arrived at the home, she asked Mr. Land to let her in to do a welfare check. Initially, he refused and began acting aggressively towards her. During their conversation, it appeared to Ms. Gardner that Mr. Land was under the influence of alcohol.

[6]          However, according to Ms. Gardner, after she explained why she was present and why she needed to conduct a welfare check, Mr. Land agreed to let her come into the home. Ms. Gardner deposed that she requested that the police officers enter the home with her because she “had concerns for [her] safety and the safety of the child”.

[7]          According to the officers, when they attempted to accompany Ms. Gardner, Mr. Land tried to close the door. Officer Silver put his foot in the door and forced it open. The police officers and Ms. Gardner then entered the home.

[8]          Following the entry, both appellants were arrested and charged with several offences, including wilful obstruction of a police officer engaged in the execution of their duty and resisting a police officer engaged in the execution of their duty. These charges were later withdrawn.

[9]          After the appellants were arrested, Ms. Gardner apprehended the child primarily because there was no adult caregiver present in the home. The child was returned to the appellants’ care about three months after the apprehension.

[10]       In their action, the appellants claim that the entry into their home by Ms. Gardner and the police officers was unlawful. They claim damages against the Society and its employees, Ms. Gardner and her supervisor, Ms. Taylor, (collectively, the “Society defendants”), for negligent investigation, negligence, negligent infliction of mental distress, invasion of privacy, trespass, misfeasance in public office and breaches of ss. 7, 8 and 9 of the Charter. Ms. Henry also claims damages for breach of s. 12 of the Charter.

[11]       In addition, the appellants claim damages against the Dryden Police Services Board and its employees, Officers Silver, Olsen, Howarth and Hildebrand (save for Officer Hildebrand, collectively, the “Dryden Police”), for negligence, negligent investigation, assault, battery, malicious prosecution, negligent infliction of mental distress, invasion of privacy, trespass, false arrest, false imprisonment, misfeasance in public office and breaches of ss. 7, 8 and 9 of the Charter. Ms. Henry also claims damages for breach of s. 12 of the Charter.

[12]       Five police officers, two Society workers and the appellants filed affidavits on the summary judgment motion. The police officers who had contact with the appellants following the police entry into the home deposed that Mr. Land adopted a combative stance when they entered the home and that Ms. Henry attempted to prevent Ms. Gardner from communicating with the child. Mr. Land denied any discussion or negotiation with Ms. Gardner at the door and both he and Ms. Henry asserted that he put his hands up in surrender when the police entered their home.

[13]       In his reasons, the motion judge noted that the main factual issues were “the manner of … entry into the [appellants’] residence and the interaction of [Dryden police service] officers and the [appellants] thereafter.”

[14]       To the extent that the affidavit evidence on the motion was conflicting, the motion judge found the evidence of the police officers consistent, and the evidence of the appellants self-serving, uncorroborated, somewhat inconsistent and lacking on a material issue (i.e., whether they had consumed alcohol on the day in question). The motion judge also drew an adverse inference against the appellants because they failed to file an affidavit from a person they claimed witnessed the entry into their home and would support their version of the events.

[15]       The motion judge concluded there was no genuine issue requiring a trial and dismissed the action against all respondents for several reasons. It is unnecessary that I review all of his findings to dispose of this appeal.

[16]       Concerning Officer Hildebrand, as there was no evidence to contradict his claim that he had no contact with the appellants on the day in question, the motion judge dismissed the action against him. The appellants raised no issue on appeal concerning this finding.

[17]       Concerning the Society defendants, among other things, the motion judge concluded that the action is statute-barred because it was commenced beyond the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. For reasons I will explain, I conclude this finding is fatal to the appellants’ claims against the Society defendants and that it is unnecessary that I consider the motion judge’s several other bases for dismissing the appellants’ claims against them.

[18]       Concerning the Dryden Police, the motion judge relied on a finding that Ms. Gardner was entitled, under s. 40 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (the “CFSA”)[1], to enter the home without a warrant to search for and remove the child and to request the police officers to assist her in doing so to dismiss many of the appellants’ claims against them. He relied on other specific findings to dismiss the remaining claims that I will deal with separately.

[19]       The appellants raise several issues on appeal. To dispose of this matter,  I will address the following issues:

     i.        did the motion judge err in finding that the appellants’ claims against the Society defendants are statute-barred?

    ii.        did the motion judge err in finding that Ms. Gardner was lawfully entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant, by force if necessary, and to request the police officers to assist her in so doing?

   iii.        did the motion judge err in failing to recuse himself from hearing the summary judgment motion because he acted for Mr. Land before being appointed as a judge?

   iv.        did the motion judge err in dismissing any of the remaining claims against the Dryden Police, not affected by the finding of a lawful entry?

Analysis

(1) Did the motion judge err in finding that the appellants’ claims against the Society defendants are statute-barred?

[20]       As noted, the appellants’ action arose from events that occurred on November 24, 2015.

[21]       The appellants issued a notice of action naming the Society defendants on April 27, 2018, two years, five months, and three days after the events occurred.

[22]       In his reasons, the motion judge noted that s. 4 of the Limitations Act, 2002, establishes a basic two-year limitation period for commencing an action following the date of discovery of a claim while s. 5 sets out a framework for determining when a claim is discovered.

[23]       Under s. 5(1), a claim is discovered on the earlier of:

(a) the day on which the person with the claim first knew:

(i) that the injury, loss or damage had occurred;

(ii) that it was caused or contributed to by an act or omission;

(iii) that the act or omission was that of the person against whom the claim is made; and

(iv) that a proceeding would be an appropriate means to seek a remedy; or

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[24]       Section 5(2) of the Limitations Act, 2002, establishes a presumption that a person with a claim knew of the matters referred to in clause 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[25]       In his reasons, the motion judge acknowledged that the appellants asserted in their factum that s. 5(1)(b) of the Limitations Act, 2002, “applies to their case as [they] are First Nation from Treaty #3 and are low income with limited education.”  However, he concluded that this statement lacked an evidentiary foundation and was therefore insufficient to rebut the presumption that the basic two-year limitation began to run on November 24, 2015, the date the events occurred, and had therefore expired.

[26]       On appeal, the appellants argue that the motion judge erred in failing to find there was at least a genuine issue requiring a trial concerning the application of s. 5(1)(b) of the Limitations Act, 2002 to their case. They submit that it is well‑established that litigants wait until the resolution of criminal proceedings before commencing an action. Further, they contend that the motion judge erred in holding there was no evidentiary foundation for their claims that they were low‑income First Nations from the Treaty #3 area. They say those facts were obvious from various statements (such as their address) and exhibits contained in the record and/or that the motion judge erred in failing to take judicial notice of those facts.

[27]       I would not accept these submissions. The appellants’ claims against the Society defendants were not dependent on the outcome of the criminal proceedings and the outcome of those proceedings did not affect the limitation period for commencing the action against the Society defendants.

[28]       Further, even assuming the motion judge should have accepted as proven the factual matters relied on by the appellants, those matters are not sufficient to displace the presumption contained in s. 5(2) of Limitations Act, 2002. A person’s status as low income and/or First Nations and/or having limited education is not sufficient, standing alone, to rebut the s. 5(2) presumption. Rather, case-specific information is required to demonstrate why a person with a claim did not learn of the matters enumerated in s. 5(1)(a) on the day the act or omission giving rise to the claim occurred. The appellants provided no evidence in their affidavits filed on the motion concerning when and how they learned of their claim and why they waited until April 2018 to commence an action against the Society defendants.

[29]       In the circumstances, I see no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statue barred. This conclusion is fatal to all of the appellants’ claims against the Society defendants.

(2)         Did the motion judge err in finding Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing?

[30]       The motion judge found that Ms. Gardner’s entry into the appellants’ home was lawful for two reasons. First, he accepted that Mr. Land invited Ms. Gardner into the home. Second, he found that Ms. Gardner was entitled to enter the home under s. 40 of the CFSA without a warrant and that she was also entitled under that section to request that the police assist her in so doing.

[31]       On appeal, the appellants dispute both findings.

[32]       It is unnecessary that I address the first finding. I have found no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statute barred. However, the lawfulness of the police entry into the home and of their subsequent actions in arresting the appellants for obstructing the police turn on whether Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the home without a warrant and to invite the police to assist her. The fact that she may have been invited to enter the appellants’ home did not entitle her to invite the police to enter the home without the owners’ permission, or to do so without a warrant and by force, unless she was acting under authority granted by s. 40 of the CFSA.

[33]       Before turning to the motion judge’s findings, it will be helpful to understand the relevant provisions of s. 40 of the CFSA.

[34]       To make his findings, the motion judge relied on s. 40 of the CFSA, which included provisions (ss. 40(7), (8), and (11)) that authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so.

[35]       However, ss. 40(1) and 40(2) of the CFSA provided necessary context for the provisions on which the motion judge relied, so I will review those subsections as well.

[36]       Section 40(1) permitted a children’s aid society to apply to the court for an order that a child is in need of protection.

[37]       Section 40(2) permitted a justice of the peace to issue a warrant authorizing a child protection worker to bring a child to a place of safety if satisfied “on the basis of the child protection worker’s sworn information” that there were reasonable and probable grounds to believe that:

•        the child is less than 16 years old and is in need of protection; and

•        a less restrictive course of action is not available or will not protect the child adequately.

[38]       As noted above, ss. 40(7), (8), and (11) of the CFSA, authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so. The two conditions underpinning the authority provided by these sections included that the child protection worker believe on reasonable and probable grounds (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under s. 40(2): R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 39.

[39]       The specific provisions on which the motion judge relied, ss. 40(7), (8), and (11), read as follows (with emphasis added):

40(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection;

(a.1) the child is less than 16 years old; and

(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),

may without a warrant bring the child to a place of safety.

(8) A child protection worker acting under this section may call for the assistance of a peace officer.

…

(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

[40]       In finding that Ms. Gardner was entitled to enter the appellants’ home under s. 40 of the CFSA, the motion judge made a finding that Ms. Gardner had a subjective belief that the appellants’ child “may have been” in need of protection on the day in question. He said the following (with emphasis added):

Section 40(11) of the CFSA states that a child protection worker who believes on reasonable and probable grounds that a child may be in need of protection may without a warrant enter premises to search for and remove a child.

The requirement of reasonable and probable grounds has both a subjective and objective component. …

Ms. Gardner has deposed that she was advised that Ms. Henry picked her child up from school while possibly intoxicated. She felt obliged to check on the welfare of the child at the [appellants’] residence. Once at the residence, she initially encountered Mr. Land, whom she observed to be acting aggressively toward her and who she thought was under the influence of alcohol. Ms. Gardner deposed that Mr. Land attempted to close the door on her after she explained why she was present at his home.

I find that Ms. Gardner, having received a referral that Ms. Henry may have been intoxicated, and having observed Mr. Land to also be possibly intoxicated and aggressive, had a subjective belief that the [appellants’ ] child may have been in need of protection on the day in question. I also find that Ms. Gardner’s belief was objectively reasonable in the circumstances.

As a result, Ms. Gardner’s entry into the [appellants’] home on November 24, 2015 was lawful pursuant to s. 40(11) of the CFSA.

[41]       In my view, there are several problems with this analysis.

[42]       First, while Ms. Gardner gave evidence in her affidavit filed on the motion of the background circumstances the motion judge described and said she had concerns for her safety and the safety of the child, she gave no specific evidence addressing whether she believed, when she entered the residence, that the child met the statutory criterion of being a child in need of protection. Her only evidence that spoke directly to that statutory criterion was that, after the appellants were placed under arrest, she concluded the child was in need of protection primarily because there was no adult caregiver present in the home. Accordingly, to the extent the trial judge made a finding concerning this statutory criterion, he made it without a proper evidentiary foundation.

[43]       Second, although s. 40(7) sets out a requirement that to act without a warrant a child protection worker must believe on reasonable and probable grounds that a child is in need of protection, the motion judge described the requirement, and his finding concerning Ms. Gardner’s state of mind, as believing that the child may be in need of protection.

[44]       Third, the motion judge made no finding concerning the requirement in s. 40(7)(b) that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).

[45]       Fourth, Ms. Gardner gave no evidence in her affidavit concerning her subjective belief about whether there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).

[46]       I recognize that in making his findings, the motion judge focused on s. 40(11) of the CFSA which specifically authorizes a child protection worker to enter onto premises without a warrant, by force, if necessary, to search for and remove a child. However, s. 40(11) is premised on s. 40(7), which sets out the two pre‑conditions to its exercise recognized by this court in Davidson, namely, that a child protection worker believe on reasonable and probable grounds: (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under ss. 40(2).

[47]       The Dryden Police rely on R. v. C.(M.), 2007 ONCJ 164, 220 C.C.C. (3d) 398, at para. 42, in support of their position that child protection workers may exercise their powers to enter premises without a warrant to conduct welfare checks, i.e., based on reasonable and probable grounds that a child may be in need of protection.

[48]       However, there are conflicting authorities in the courts below concerning whether the position the Dryden Police advance is correct. See, for example, R. v. Ashkewe, 2007 ONCJ 152, 220 C.C.C. (3d) 423, at paras. 27, 30 and 41.

[49]       Because of the other issues I have identified, it is unnecessary that I finally decide the question whether reasonable and probable grounds to believe a child may be in need of protection is sufficient to meet the requirements of s. 40(7)(a) of the CFSA in order to dispose of this appeal. Accordingly, I consider that that question is best left to another case in which the issue can be fully argued.

[50]       In this case, in addition to the first problem set out above, I conclude that the motion judge’s finding that Ms. Gardner’s entry, and therefore the police entry, was lawful under s. 40 of the CFSA cannot stand because the motion judge made no finding, and there was no evidence before him on which to base a finding, that the requirements of s. 40(7)(b) of the CFSA were satisfied. That is, Ms. Gardner gave no evidence that she subjectively believed there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).

[51]       I emphasize that the absence of this evidence and a finding by the motion judge are not technical deficiencies. Sections 40(7), (8) and (11) confer extraordinary powers on child protection workers to enter premises, including a dwelling house, without a warrant, by force if necessary, and with the assistance of police. While the goal of protecting children is undoubtedly of great importance, the extraordinary nature of the powers conferred under these sections requires that the conditions for exercising them be both strictly respected and strictly enforced. While I recognize that child protection workers and the police frequently encounter fluid, and difficult, situations in carrying out their mandate to protect children, even so, they must always turn their minds to the statutory conditions for exercising their extraordinary powers before doing so.

[52]       I accordingly conclude that the trial judge’s finding that Ms. Gardner’s entry was lawful under s. 40 of the CFSA must be set aside and his further finding that the police entry was lawful because Ms. Gardner was lawfully entitled to request them to assist her must also be set aside.

[53]       During oral argument, the Dryden Police argued that if Ms. Gardner’s evidence did not provide lawful grounds for the warrantless entry by police using force, the evidence of the police officers surely did. However, the Dryden Police failed to identify the evidence that would support that submission.

[54]       In the result, I would set aside the summary judgment dismissing the appellants’ claims against the Dryden Police with respect to which the motion judge relied on his finding that the police entry into the appellants’ home based on reasonable and probable grounds was lawful. Those claims are the claims for: negligence, false arrest, false imprisonment, assault and battery, trespass and invasion of privacy and the appellants’ claims under ss. 7 and 9 of the Charter, which must proceed to trial.

(3)         Did the motion judge err in failing to recuse himself from hearing the summary judgment motion because he acted for Mr. Land before being appointed as a judge?

[55]       In the appellants’ factum, Mr. Land raised for the first time the issue of the propriety of the motion judge hearing the summary judgment motion. Mr. Land claimed that the motion judge acted for him before being appointed as a judge.

[56]       I would not give effect to this ground of appeal. Mr. Land acknowledged at the oral hearing that he did not raise the issue with the motion judge, and he filed no evidence in this court to support his claim. In the absence of evidence, there is no basis for this court to entertain this ground of appeal.

[57]       In any event, the fact that a litigant had a prior professional relationship with a judge is not per se disqualifying. In fact, there are many circumstances in which a judge’s prior professional relationship with, or even employment by, a litigant will not disqualify the judge from hearing cases involving the litigant. It depends on all the circumstances including the nature of the litigant, the nature of the prior representation, the amount of time that has passed and other relevant circumstances.

[58]       Here, according to Mr. Land’s oral submissions (which are not evidence), the motion judge acted for him about 15 to 18 years previously on a single matter that did not proceed to trial. Moreover, we are not aware of the precise circumstances that lead Mr. Land to believe that the motion judge should have recused himself from hearing the summary judgment motion.

[59]       However, even assuming Mr. Land’s undocumented recollection of events is accurate, I see no realistic possibility that any past connection between Mr. Land and the motion judge would have had any impact on the outcome of the motion. Given the passage of time, Mr. Land’s description of the circumstances and the fact that the motion judge did not raise it himself, I see no reasonable prospect that the motion judge even recalled any past connection with Mr. Land let alone any circumstances that should have caused him to consider recusing himself.

[60]       That said, I would observe that a  litigant who is concerned about a judge’s prior representation should not hesitate to raise it with the presiding judge and should have no concerns that raising such an issue will be viewed as inappropriate or create bias against them. Lawyers and judges deal with a myriad of cases. A judge cannot be expected to recall every person they have represented while a lawyer especially when such representation was many years in the past. Nonetheless, it is in the interests of justice that any concerns about  past representation of a litigant be brought to a presiding judge’s attention. Court staff should not discourage litigants from doing so.

(4)         Did the motion judge err in dismissing any of the remaining claims against the Dryden Police, not affected by his finding of a lawful entry?

[61]       The motion judge dismissed several of the appellants’ claims against the Dryden Police for reasons unaffected by his finding of a lawful entry into the appellants’ home. These claims are the claims for negligent infliction of mental distress, breach of the appellants’ s. 8 Charter rights and breach of Ms. Henry’s s. 12 Charter rights.

[62]       The motion judge found no genuine issue requiring a trial concerning the claims for negligent infliction of mental distress and breach of the appellants’ s. 8 Charter rights because the claims were not particularized in the statement of claim and/or not supported by evidence on the motion.

[63]       The appellants raise a general objection that they are self-represented and therefore should be given an opportunity to remedy any deficiencies in their material.

[64]       I would not give effect to this argument. While self-represented litigants are properly afforded some latitude in their pleadings and even in the manner in which they lead evidence, they, like all litigants, must put their best foot forward on a summary judgment motion. In this case, the appellants issued a multi-faceted statement of claim. Having done so, it was their responsibility to ensure they particularized, and adduced evidence to support, all aspects of their claim.

[65]       Ms. Henry’s claim for breach of her s. 12 Charter rights is premised on an allegation that the police injured her foot when they entered her home on November 24, 2015, and a further allegation that she aggravated her foot injury because she was required to stand while performing community service under a diversion program to have the charges laid against her withdrawn. The motion judge found no genuine issue requiring a trial concerning this issue, because, among other reasons, he found no evidence to suggest the Dryden Police are legally responsible for the consequences arising from the diversion program.

[66]       The appellants argue that the motion judge failed to examine a photograph relevant to this issue and also say that the trial judge misapprehended their Charter arguments.

[67]       I would not give effect to these arguments. A claim under s. 12 of the Charter raises the issue of cruel and unusual punishment. Leaving aside the threshold required to meet s. 12 of the Charter, I agree with the motion judge’s conclusion that the Dryden Police are not responsible for any consequences that may have arisen from the diversion program.

[68]       The motion judge also found no genuine issue requiring a trial with respect to the appellants’ claims for negligent investigation and malicious prosecution. He relied on his finding that the actions of the Dryden Police were lawful, which I have concluded is a finding he was not entitled to make. However, in his reasons, the motion judge also noted that to succeed in these claims, the appellants had to prove that the proceedings instituted against them were terminated in their favour.

[69]       In their statement of claim, the appellants assert that the charges against Ms. Henry were withdrawn because Ms. Henry had no record “and in exchange for Ms. Henry completing 40 hours of community service”. They also assert that the charges against Mr. Land were withdrawn on September 13, 2016.

[70]       Given that the charges against Ms. Henry were withdrawn as part of an arrangement with the Crown requiring Ms. Henry to perform community service, it cannot be said that the proceedings against her were terminated in her favour: Romanic v. Johnson, 2012 ONSC 3449 aff’d 2013 ONCA 23, at para. 6. Accordingly, her claims for negligent investigation and malicious prosecution were properly dismissed.

[71]       Concerning Mr. Land, the appellants pleaded that the charges against him were withdrawn on September 13, 2016. The appeal record includes a transcript of  September 13, 2016 proceedings involving Mr. Land. The transcript indicates that certain charges against Mr. Henry were withdrawn following guilty pleas to breach of recognizance offences that occurred on April 8, 2016 and May 4, 2016, and were therefore unrelated to this matter. However, the transcript does not disclose what charges were withdrawn or the basis for their withdrawal. In the circumstances, it is not clear whether the charges were withdrawn as part of a plea arrangement or for some other reasons, such as lack of merit. In the circumstances, Mr. Land’s claims for negligent investigation and malicious prosecution should not have been dismissed and must proceed to trial.

Disposition

[72]       Based on the foregoing reasons, I would set aside the summary judgment dismissing, as against the Dryden Police, the appellants’ claims for negligence, false arrest, false imprisonment, assault and battery, trespass and invasion of privacy; Mr. Land’s claims for negligent investigation and malicious prosecution; and the appellants’ claims under ss. 7 and 9 of the Charter; and I would direct that those claims proceed to trial. I would dismiss the balance of the appeal.

[73]       I would direct that all parties file costs submissions not to exceed three pages together with a costs outline within seven days of the release of these reasons and that any party against whom costs are sought by another party may file a response not to exceed three pages within seven days of receipt of the claiming party’s submissions.

Released: March 24, 2023 “J.M.F.”

“Janet Simmons J.A.”

“I agree. Fairburn ACJO”

“I agree. B. Zarnett J.A.”