Case Name:

Tucker v. Canada (Attorney General)

Between

Elizabeth Ann Tucker and Paul Anthony Smihal,

plaintiffs (appellants), and

The Attorney General of Canada, et al.,

defendants (respondents)

[2004] O.J. No. 2381

Court File No. 26/04

Ontario Superior Court of Justice

Divisional Court - Toronto, Ontario

MacFarland J.

Judgment: April 8, 2004.

(11 paras.)

Counsel:

Raymond G. Colautti, for the plaintiffs (moving party).

C. Parke, for the defendants (responding party).

1 MacFARLAND J. (endorsement):-- This case raises interesting questions of law. I do not agree that Justice Nosanchuk's decision can be considered a "conflict decision" within the meaning of Rule 62.02(4)(a).

2 That being so I must be persuaded that there is good reason to doubt the correctness of the Order in question which Order dismissed the plaintiffs' motion for summary judgment. To meet this test the applicant need only establish that the correctness of the decision in question is open to serious debate and that the matters in issue are of some public importance and transcend the interests of immediate parties.

3 The facts which gave rise to the motion are set out in the reasons of the motions judge.

4 At the outset, I should say that I agree with Mr. Colautti's observation that the application for leave is from the Order not the reasons. Here the Order dismissed the motion for summary judgment and is in my view interlocutory. The applicant requires leave under R. 62.02 to appeal to the Divisional Court.

5 The motions judge held that a section 8 Charter violation alone does not entitle the plaintiffs to damages. He said there must in addition be evidence of malice or ill will. In this respect the motions judge relied on the decision of this Court in Persaud v. Donaldson, 32 O.R. (3d) 349. The trial judge - whose decision was before the Divisional Court clearly stated that in his view the plaintiffs were not required to establish malice or ill will. His specific finding in this respect was not dealt with by the Div. Court in its reasons which turned on a different point. However the finding of the Court on appeal was that there had been no bad faith established and the action was dismissed.

6 As to the issue of privity of Mr. DesRosier while he is sued personally here and was only a witness at the criminal proceeding he is represented by counsel for the Attorney General of Canada who represents all defendants. However, in my view his representation by counsel for the Attorney General alone should not be a determinative factor. The motions judge's findings in respect of DesRosier's involvement are grounded in the evidentiary record. He was not a party but merely a witness to the criminal process over which he had no control or any real ability to participate in from a personal perspective. Here he's sued personally - the landscape has changed dramatically for him.

7 In so far as the res judicata issue estoppel arguments are concerned the Judge applied the law - he balanced the public interest in relation to the finality of proceedings against the interests of the individual and the fairness of the process and concluded that applying res judicata or issue estoppel in this case to prevent DesRosier from making full answer and defence to the plaintiff's allegations would create an injustice.

8 Sec. 7 of the Charter was not before the Criminal Court and no finding was made in respect of it. The [...] [Editor's note: one or more words missing at this point in the document] will have to establish their entitlement as would any other plaintiff. Res judicata simply does not apply in my view.

9 In paragraph 40 of his reasons the motions judge sets out where res judicata will apply on the facts of this case.

10 In all the circumstances I am not persuaded there is any good reason to doubt the correctness of the decision and leave to appeal is denied.

11 As to the costs - in view of the finding made by Granger J - he applied the Rules appropriately in all the circumstances. It cannot be said that he exercised his discretion on any wrong principle. While I agree the quantum was high - this was a complex motion where the materials were voluminous and considerable time was required for its preparation. In the circumstances leave to appeal on the question of costs is denied. Costs to the Respondent fixed in the sum of $6100.00 inclusive of G.S.T. and disbursements.

MacFARLAND J.

qp/t/qw/qlpwb/qljml/qlltl