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Interim Judgment in Klassen/Kvello lawsuit page 3

(Finding on the nonsuit application)

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Malicious Prosecution

[45] On the basis of the law respecting malicious prosecution and the evidentiary tests I have outlined that must be applied to non-suit applications, I am satisfied that the applicant defendants, Miazga, Hansen, Dueck and Bunko-Ruys, have failed to establish that the evidence is insufficient to enable a reasonable person to conclude that the elements respecting the malicious cause of action have been met. I am satisfied, however, that the reverse is true respecting the applicant defendant, the Estate of Richard Quinney.

46] It is neither necessary nor desirable at this stage of the case that I outline in detail the evidence I have relied upon for my decision to dismiss, for the most part, the nonsuit applications respecting the four defendants, Miazga, Hansen, Dueck and Bunko-Ruys. As indicated previously, my task at this stage is not to determine whether the elements of malicious prosecution have been established by the evidence nor is it my role to determine the credibility of the evidence. Rather it is to determine if there is a prima facie case. In other words, it is to determine if there is sufficient evidence on which a reasonable person could conclude that the case has been made out on a balance of probabilities. Accordingly, it is important to bear in mind that the evidence I relate is "evidence" adduced in the case and is not "fact" that I have found from the evidence.

[47] I will accordingly confine my comments on the evidence to a few examples of the nature of the evidence I have considered in concluding that there is a prima facie case. To relate at this stage every material piece of evidence I have relied upon in coming to my conclusion, would be duplicitous, would significantly lengthen this judgment and would trench on the task that lies before me at the conclusion of the trial.

[48] Insofar as Miazga, Hansen and Dueck are concerned, there is little dispute, if any, that there is sufficient evidence respecting the first and second elements of malicious prosecution that pertains to each of them. Bunko-Ruys and the Quinney Estate contend that there is not sufficient evidence respecting the first element that pertains to either of them. All five defendants contend that there is not sufficient evidence respecting the third and fourth elements that pertains to any of them. I will deal first with the evidence pertaining to Bunko-Ruys respecting the first element.

[49] Bunko-Ruys was engaged as the therapist of the [R.] children by what was then known as Social Services. Shortly after her involvement with [M.R. 1], he began making disclosures of sexual abuse. Soon after [M.R. 2] and [K.R.] were reunited with [M.R. 1] in the Thompson foster home, they also began making disclosures similar to those of [M.R 1]. For a period of a year leading up to the plaintiffs being charged, Bunko-Ruys was directly and regularly involved in the police investigation conducted almost singlehandedly by the defendant Dueck. She continued to obtain "disclosures" from the [R.] children, not only as their therapist, but as part of the "team" that included Dueck and apparently the [R.] children themselves.

[50] Bunko-Ruys met with Dueck on numerous occasions at her o ffice and at the police station. She attended and participated in the numerous videotaped interviews of the [R.] children, an exercise undertaken solely for police purposes in preparation, months in advance, for the planned prosecution and arrests of the plaintiffs. She attended the court proceedings and the trial involving persons other than the plaintiffs who were also accused by the [R.] children and gave evidence on behalf of the Crown and the children as a witness with expertise in child abuse. I am o f the view that a reasonable person could conclude that she was one of the individuals who "instituted the proceedings" within the meaning of the case law I have outlined.

[51] I move on to consider the third and fourth elements of malicious prosecution respecting the four defendants, Miazga, Hansen, Dueck and Bunko-Ruys. There is sufficient evidence on which a reasonable person could conclude that they initiated and continued the prosecution of the plaintiffs without reasonable and probable cause within the meaning of the case law I have outlined. The evidence is that the prosecution of the plaintiffs was a peculiar and unprecedented type of case. It included bizarre allegations of murdering babies, eating feces, drinking blood, group sex and a host of other unusual allegations. There were numerous inconsistencies in the allegations made by the children.

[52] The mental and emotional state of each of the [R.] children, particularly [M.R. 1], was abnormal to the extent that [M.R. 1], and to a lesser degree, [M.R. 2], required almost constant supervision, not only at school but elsewhere including their home. The children made allegations against numerous perpetrators and although most of these allegations were not pursued by Dueck, he caused charges to be laid against some 16 individuals, two of whom were themselves children of one of the couples who were also charged. The proceedings against these two children proceeded under the then Young Offenders Act, R.S.C. 1985, c. Y-1. Many of the plaintiffs who were charged volunteered to be interviewed without the benefit of counsel. All who were interviewed denied they had sexually abused the children and many offered to take a polygraph test in an attempt to establish their innocence.

[53] For many of the reasons enunciated by Klebuc J. in Klein v. Seiferling, supra, that I have previously outlined, I conclude that a reasonable person might consider this evidence to constitute a warning flag that called for further investigation and an attempt to obtain evidence to support or discredit the bizarre allegations of the [R.] children. The evidence indicates that the police investigation consisted almost entirely of interviews of the children to obtain and document their disclosures and interviews of the plaintiffs in an attempt to obtain their confessions. Lacking a proper or at least a more thorough investigation of the horrendous and serious allegations made in this case against so many different individuals, I am satisfied that a reasonable person could conclude, in these circumstances, that the plaintiffs were probably not guilty of the host of serious offences alleged against them.

[54] The plaintiffs have rightly conceded that the evidence respecting the third element must be considered without reference to the evidence of the recantations of the [R.] children. They were made after the charges were stayed.

[55] Insofar as the fourth element of malicious prosecution is concerned, it is important to reiterate that there is seldom, in any case, direct evidence of malice or intent. Such evidence is usually circumstantial. Malice, intent or motive is usually inferred as a fact from other direct evidence which is accepted as fact. Usually that direct evidence pertains to the conduct of the individual in issue respecting the circumstances known to that individual at the relevant times. I am satisfied that there is sufficient evidence on which a reasonable person could draw the required inferences to conclude that this element has been met respecting each of the four defendants within the meaning of the case law I have outlined. I will mention only a few pieces of uncontradicted evidence that could be relied upon by a reasonable person in drawing such inferences respecting each individual defendant.

[56] The evidence is that both Bunko-Ruys and Dueck were privy to the "disclosures" made by the [R.] children to the Thompsons and to themselves and they knew of the significant weaknesses and discrepancies in those allegations. Dueck and Bunko- Ruys jointly conducted videotaped interviews of the [R.] children and a reasonable person could conclude that they were unduly suggestive, offered incentives to the children and implicated them as part of the prosecution "team". A reasonable person could also conclude from the evidence that the allegations of the [R.] children were so contaminated by the disclosure and interview process, that they were inherently unreliable and that this was known by Dueck and Bunko-Ruys.

[57] The evidence could also be interpreted to support a finding that both Dueck and Bunko-Ruys had "tunnel vision" or "tainted tunnel vision", as termed by Proulx, that caused them to accept all the inculpatory evidence and reject all the exculpatory evidence. For example, the evidence is that they knew, during the extended time period within which the "disclosures" were being made, that [M.R 1] was sexually assaulting his sisters on a regular basis in the Thompson home. On one occasion he sexually assaulted his sisters in Bunko-Ruys' office when she and Dueck were discussing the case outside the office door. Yet they appear to have failed to consider whether the physical evidence of sexual assault on the [R.] girls was caused by [M.R. 1]'s known sexual assaults upon them. Instead they appear to have assumed that it was caused by the alleged sexual assaults of the alleged perpetrators.

[58] By viewing the videotaped interviews of the children, a reasonable person could conclude that Dueck and Bunko-Ruys accepted without question, challenge or assessment, everything that the child complainants said about the alleged perpetrators while rejecting all exculpatory evidence, even that provided by the children themselves. The evidence is that Dueck was advised by Terry Hinz that he did not have a case without further investigation. Yet Dueck proceeded with the charges and arrests without doing so. The evidence includes an allegation by [K.R.] that, a few months after the trial, she told Bunko- Ruys and Marilyn Thompson that she had lied at the trial. Her uncontradicted evidence is that she was told by Bunko-Ruys and Marilyn Thompson that there was nothing that could be done about it and to forget it. Based on the considerations set out in the case law I have outlined, I am satisfied that a reasonable person could draw an inference from all this evidence, including the conclusion that there was an absence of reasonable and probable cause, that Bunko-Ruys and Dueck had malice.

[59] I now move on to consider the evidence respecting Miazga and Hansen. I do not wish to repeat the examples of the evidence I have set out respecting Bunko-Ruys and Dueck that pertains to these third and fourth elements. But much of it is applicable as well to the two prosecutors. The uncontradicted evidence is that both Miazga and Hansen were privy to the bizarre "disclosures" of the [R.] children, their videotaped interviews and the significant discrepancies in their evidence. The evidence could be interpreted to support a conclusion that the prosecutors, as previously suggested by Terry Hinz, should not have drafted the charges without requiring further investigation on the part of the police.

[60] The evidence could also be interpreted to support a conclusion that the prosecutors also had "tunnel vision" or "tainted tunnel vision" and continued with the prosecution when it became obvious from these discrepancies, their own interviews of the children, and in some cases the court testimony of the children, that the allegations were fabrications made by very disturbed and abnormal children.

[61] The evidence could also be interpreted to support a conclusion that the prosecutors mislead their superiors about the fundamental weaknesses of the case and about the real reason for the suggested stays. There is evidence that could support a finding that the prosecutors deliberately withheld information from counsel for the plaintiffs that would have assisted them in defending the charges. There is evidence that the prosecutors did not believe many of the allegations of the children but "believed that the children believed them". Based on the considerations set out in the case law I have related, including the public duty associated with the office of a prosecutor, I am satisfied that a reasonable person could draw an inference from all this evidence, including the conclusion respecting the absence of reasonable and probable cause that I outlined previously, that Miazga and Hansen had malice.

[62] The situation is quite different respecting the estate of the defendant, Quinney, who died before this action came on to trial. He was not the director of public prosecutions when the charges were laid and it appears from the evidence that he was only peripherally involved in the prosecution of the plaintiffs until the prosecutors were considering stays. He was contacted by the prosecutors by phone, letter and in person on a few occasions during the proceedings. But I have not been able to find anything in the volumes of materials that I have gone through, which indicate he knew or understood the real nature and status of the case, the full extent of the bizarre nature of the allegations or the full extent of the we aknesses in the allegations and evidence of the [R.] children.

[63] It appears that he was lead to believe by the prosecutors, particularly Miazga, that the stays were recommended because the children had been too traumatized by the proceedings and by the lengthy cross-examination to continue as reliable witnesses. The focus was more on the comments of the trial judge, than on the discrepancies and weaknesses in, and the inherent unreliability of, the children's allegations and their evidence. The considerations he entertained and the letters and media statements he authored could support this interpretation of the evidence.

[64] On the basis of the whole of the evidence, including the unique and high profile nature of the case, a reasonable person might conclude that, as Director of Public Prosecutions for Saskatchewan, Quinney was negligent in failing to better inform himself about the case and in failing to more closely monitor the prosecution of it to reduce the risk of what occurred. But as indicated by the case law I have outlined, negligence or even gross negligence alone cannot constitute malice. I am satisfied that there is not sufficient evidence on which a reasonable person could conclude that either of the third or fourth elements have been made out respecting Quinney.

Collateral Causes of Action

[65] I now move on to consider the "collateral" causes of action alleged by the plaintiffs consisting of s. 24 remedy claims for alleged breaches of their rights under the Canadian Charter of Rights and Freedoms, for abuse of "power" (public office), for negligence, including negligent investigation, and for conspiracy to injure. It appears from the certified copy of pleadings given to me, that no claim was brought or has been continued by the plaintiffs for false imprisonment. But as Dueck has included it in his nonsuit motion, I will deal with it in the event it was inadvertently removed by the various amendments to the statement of claim that have taken place from time to time.

[66] In order to properly determine the non-suit applications respecting these collateral causes of action, I was required to review the case law that identifies the constituent elements of each cause of action and their relationship to one another. The following is a summary of my findings in this respect. 1. Whether the Collateral Causes of Action are Subsumed within the Main Cause of Action

[67] The defendants have cited several authorities for the proposition that some of the causes of action collateral to a malicious prosecution action, such as abuse of public office, breach of Charter rights and conspiracy to injure, are for policy reasons, subsumed into the malicious prosecution cause of action and do not exist as stand alone causes of action. The authorities also indicate that although false imprisonment is a stand alone cause of action, the damages awarded for malicious prosecution will preclude any duplication in damages awarded for false imprisonment.

[68] In Dix v. Canada (Attorney General), supra, Ritter J. dismissed the "collateral" causes of action brought by the plaintiff consisting of s. 24 remedy claims for alleged breaches of his rights under the Canadian Charter of Rights and Freedoms, for abuse of public office, for negligence, including negligent investigation, for abuse of process, for conspiracy and for false imprisonment. He found that certain of the defendants had breached several Charter rights of the plaintiff. At para. 553, he held that even though a situation may exist where there is a breach of a Charter right which occurs in circumstances of mala fides and which does not equate to malicious prosecution, he did not need to determine that issue because the plaintiff was not left without a remedy for breaches of his Charter rights. His remedy for those breaches was subsumed within and awarded by means of his cause of action for malicious prosecution.

[69] I will comment first on the abuse of public office cause of action. At para. 554, Ritter J. observed that if the claim for abuse of public office is made out, so is the claim for malicious prosecution. He was also of the view that the converse was true so that the claim was subsumed within malicious prosecution claim once it had been established. This is so because it involves the same conduct alleged in each separate cause of action.

[70] The abuse of process cause of action is also subsumed. At para. 580, Ritter J. concludes that the abuse of process cause of action is a repetition of, or is subsumed within, the malicious prosecution action and award. Having more than one cause of action with duplicate constituents does not increase the plaintiff's award because he can be awarded damages only once for the same conduct. He reaches the same conclusion at para. 581 respecting the conspiracy claim.

[71] I move on to consider the conspiracy to injure cause of action. Under the heading "Civil Conspiracy" at para. 11 of her judgment in Stillwater Forest Inc. v. Clearwater Forest Products Ltd. Partnership, supra, Pritchard J. sets out the elements of the tort of conspiracy: [11] At page 265-266 in The Law of Torts in Canada, Vol 2 (Toronto: Carswell, 1990) Fridman summarizes the three distinct situations that can give rise to the tort of conspiracy: In modern Canada, therefore, conspiracy as a tort comprehends three distinct situations. In the first place there will be an actionable conspiracy if two or more persons agree and combine to act unlawfully with the predominating purpose of injuring the plaintiff. Second, there will be an actionable conspiracy if the defendants combine to act lawfully with the predominating purpose of injuring the plaintiff. Third, an actionable conspiracy will exist if defendants combine to act unlawfully, their conduct is directed towards the plaintiff (or the plaintiff and others), and the likelihood of injury to the plaintiff is known to the defendants or should have been known to them in the circumstances . . .

[72] The false imprisonment cause of action is a stand alone cause of action. At para. 578 in Dix v. Canada (Attorney General), supra, Ritter J. allows the claim of false imprisonment. But at para. 644, he declines to make a separate and distinct additional award of general damages in that he considered the "term" of the false imprisonment in determining the quantum of the damage award for malicious prosecution. Because the elements of false imprisonment differ from those of malicious prosecution, he made a provisional award for false imprisonment. At para. 647, he states that it is enforceable only if upon appeal, his finding of malicious prosecution is overturned but his finding of false imprisonment is upheld.

[73] As stated in Dueck's legal brief, false imprisonment and malicious prosecution are mutually exclusive causes of action. False imprisonment relates to a nonjudicial detention whereas malicious prosecution relates to a judicial detention, such as an arrest obtained by means of a judicial warrant. See Foth v. O'Hara et al. (1958), 24 W.W.R. 533 (Alta. S.C.) and Klein v. Seiferling, supra, at pp. 18-19.

[74] I move on to consider the constitutional tort cause of action. In R.L.H. v. Ontario (Attorney General), [2002] O.J. No. 3262 (Ont. Sup. Ct.) at para. 178, Harris J., relying on Walker v. Ontario, [1997] O.J. No. 3343 (Gen. Div.), stated: A constitutional tort cannot be advanced independently of the allegations of malicious prosecution and negligence and if there is no genuine issue for trial with respect to the claims for malicious prosecution and negligence, there can be no genuine issue for trial with respect to the constitutional torts based on the same allegations and facts.

[75] But it is not settled whether causes of action which are subsumed within the malicious prosecution cause of action should be struck or dismissed before the determination of the case. A recent case in the Ontario Court of Appeal, Folland v. Ontario (2003), 225 D.L.R. (4th) 50, leave to appeal to Supreme Court of Canada dismissed without reasons [2003] S.C.C.A. No. 249 (QL), overturned the decision of the motions judge to strike out portions of the appellant's statement of claim alleging abuse of process, conspiracy to injure and intentional infliction of harm. The motions judge had done so on the basis that the statement of claim disclosed no reasonable cause of action. The position of the respondent Crown was that t he only common law tort available against a Crown attorney for prosecutorial misconduct was malicious prosecution. The appeal court observed, relying on Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, that actions should be struck out only if it is "plain and obvious" that no cause of action is disclosed.

[76] The court went on at para. 18 to observe that Proulx interpreted the four-part Nelles test as applying to any claim for damages based on prosecutorial conduct. The term was a broad one that could encompass more than malicious prosecution. At para. 20, the court referred to Milgaard v. Kujawa (1994), 118 D.L.R. (4th) 653 (Sask. C.A.) at 662- 64, which suggested that the categories of tort available against prosecutors were not closed and that the torts of abuse of statutory power and conspiracy to abuse statutory power might exist if actuated by malice or other improper motive.

[77] The court in Folland v. Ontario, supra, at para. 21, also relied on comments to like effect in R. v. Cook (1997), 146 D.L.R. (4th) 437 (S.C.C.) at 445-46. The court concluded at para. 22: It would appear, therefore, that the jurisprudence is not fully settled as to whether the four elements for the tort of malicious prosecution must always be proven in every civil action against a prosecutor. It is also not clear that, if the four elements are established, a plaintiff is restricted to framing the action as one of malicious prosecution rather than as one of conspiracy, abuse of process or intentional infliction of harm. It may be that in some cases, such as conspiracy, the rules relating to admissibility of evidence would be of assistance to a plaintiff in establishing his or her case. 2. Whether Negligent Investigation is a Valid Cause of Action in Saskatchewan

[78] The defendants submit that negligent investigation is not a cause of action known to the law, at least in Saskatchewan.

[79] Ritter J. at para. 555 in Dix v. Canada (Attorney General), supra, observed that the tort of negligent investigation in the context of a criminal investigation is not one which is known to the law. He relied on Collie Woollen Mills Ltd. v. Canada (1996), 107 F.T.R. 93 (T.D.) at para. 34. At paras. 561-62, he distinguishes Beckstead v. Ottawa (City) Chief of Police (1995), 37 O.R. (3d) 64 (Gen. Div.) affirmed by the Ontario Court of Appeal (1997), 37 O.R. (3d) 62, that recognized negligent investigation as a cause of action. He did so on the basis, in part, that the police officer in that case failed to carry out any form of investigation.

[80] But there are several cases in Ontario that have recognized this cause of action in connection with failed prosecutions, holding that police officers do not enjoy the same degree of immunity afforded to prosecutors. See Thompson v. Ontario, [1994] O.J. No. 851 (Gen. Div.), aff'd (1998), 113 O.A.C. 82; Bainard v. Toronto Police Services Board, [2002] O.T.C. 504 (Sup. Ct.) at para. 95; de Jong v. Midland (Town) Police Services Board, [2002] O.T.C. 298 (Sup. Ct.) at para. 39; Beckstead v. Ottawa (City) Chief of Police, supra. But see R.L.H. v. Ontario (Attorney General), supra, at para. 193 to the contrary.

[81] Courts outside Ontario have been less ready to recognize negligent investigation as a cause of action or have interpreted it narrowly. See Kleysen v. Canada (Attorney General), 2001 MBQB 205, [2001] 11 W.W.R. 667 (Q.B.) and Dix v. Canada (Attorney General), supra.

[82] But it must be borne in mind that the trend in the case law is to expose public officials to increased liability. In "The Widening Net of Liability for Police and Public Officials in the Investigation of Crimes", Annual Review of Civil Litigation (Toronto: Carswell, 2001), Mr. Justice Todd L. Archibald of the Superior Court of Justice (Ontario), concludes at pp. 38-39 as follows: There is little doubt that police officers and other public officials are being exposed to increased liability. Courts are permitting accused persons to sue the police, not only for malicious prosecution, but for negligent investigation and for Charter breaches. Police officers also face potential liability for the manner in which they address concerns of potential victims of crime. On the one hand, this policy serves to ensure that the police, like all state officials, are held accountable for their actions. The danger is that the fear of civil retribution will deter police officers from fully exercising their discretion in the investigation of crime. The traditional approach is to impose liability only where there is evidence of malice, an approach which attempts to strike a reasonable balance between redressing abuses on the justice system and effective law enforcement. The emerging case law, however, marks a departure from this approach in the direction of an increased scope of liability. . . . 3. Whether the Failure of the Plaintiffs to Call Expert Evidence of Negligence is Fatal to the Claims in Negligence.

[83] The defendants also maintain that the failure to call expert evidence respecting the negligence claims against the therapist and the police officer is fatal to those claims. Although the negligence alleged does not involve the kind of professional negligence that is usually in issue, such as the standard of practice and the compliance with that standard by a physician or a lawyer, it does involve the standards of practice and the compliance with those standards by a therapist and by a police investigator. Zarzeczny J. in Palmer-Johnson v. Tochor, supra, recently canvassed the cases that deal with this issue, in particular ter Neuzen v. Korn (1995), 127 D.L.R. (4th) 577 (S.C.C.) and Henderson et al. v. Hagblom et al., 2003 SKCA 40, (2003), 232 Sask. R. 81 (C.A.).

[84] ter Neuzen v. Korn, supra, involved a professional negligence claim against a specialist physician respecting an HIV infection contracted through an artificial insemination procedure performed by him. The court observes at p. 588: . . . In each aspect of the claim the jury was bound to consider whether the evidence established that a standard of practice existed. If the answer was in the affirmative, the next question was whether the defendant conformed to that practice. An affirmative answer to this question would result in a finding of no negligence in favour of the respondent unless the jury was entitled to consider and hold that the standard practice was itself below the required legal standard and that conduct below that standard constituted negligence. Similarly, if the jury found that no standard practice was established by the evidence, the appellant would have failed to prove her case unless the jury was entitled to fix the standard without the necessity of expert evidence. . . . [Emphasis added]

[85] The court at p. 591, quotes Professor John G. Fleming at p. 110 of The Law of Torts, 7th ed. (Sydney: Law Book Co., 1987): . . . [C]ourts have resorted to the safeguard of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony. . . . The court states at p. 592: . . . Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent. On the other hand, matters falling within the ordinary common sense of juries can be judged to be negligent. . . . [Emphasis added]

[86] Zarzeczny J. at para. 24 of his decision, observes that the court in ter Neuzen v. Korn provides ample illustration of the kinds of circumstances in which a jury would be competent to render a verdict in respect of a professional negligence claim by the use of ordinary common sense as opposed to expert evidence. These circumstances encompass cases where it is simply a matter of determining whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken, such as a surgeon leaving a sponge in his patient after an operation. 4. Conclusions on the Non-suit Respecting the Collateral Causes of Action and the Failure of the Plaintiffs to Call Expert Evidence

[87] I allow the non-suit motion of Dueck to dismiss any claim the plaintiffs may have made for false imprisonment. The cause of action of false imprisonment is clearly defined and settled in the law. The evidence is that all the arrests of the plaintiffs were made on the basis of judicial warrants and that the detention of the plaintiffs in custody was also made on the basis of a judicial directive. There is no evidence that the plaintiffs were otherwise unlawfully detained even though their Charter rights to counsel appear to have been breached by Dueck during their interviews several days before their arrests. There is no sufficient evidence on which a reasonable person could conclude that any of the plaintiffs were falsely imprisoned within the meaning of the case law.

[88] I dismiss the remaining non-suit motions respecting the various "collateral" causes of action alleged by the plaintiffs against the defendants for several reasons. The first is that in view of my ruling on the non-suit motions respecting malicious prosecution, the primary cause of action, most of the defendants remain in the lawsuit. There is no prejudice to these defendants if the determination of the collateral causes of action is deferred until the final determination of the malicious prosecution cause of action. On the other hand, the costs and delays suffered by all the parties will be substantial if a new trial is ordered as a result of a successful appeal taken by the plaintiffs respecting the dismissal on these non-suit applications of any of the collateral causes of actions claims. These potential delays and substantial costs outweigh any potential benefits of a ruling in mid trial. The determination of each collateral cause of action involves substantially the same evidence and similar and overlapping legal considerations.

[89] The second reason is that the determination of most, if not all, of these collateral causes of action will be rendered moot by the outcome of the malicious prosecution cause of action. If the action is successful, the remaining causes of action will be subsumed within it. If the malicious prosecution cause of action is not successful, many, if not all, of the collateral causes of action will not succeed. The elements overlap significantly and a negative finding of fact on one cause of action will constitute a negative finding of fact on the others.

[90] The third reason is that the law respecting the collateral causes of action is not clear and is still developing. In particular, there are conflicting decisions as to whether negligent investigation is a valid cause of action. For the reasons given previously in connection with the legal principles applicable to non-suit applications, these substantive legal issues are better determined within the context of the final judgment with the benefit of full argument (and the testimony, if any, of the defendants) rather than within the context of a ruling given in connection with non-suit motions. I am mindful that to do otherwise runs the risk outlined in the comments of Bray J. in Hummerstone et al. v. Leary et al., [1921] 2 K.B. 664 at 666: . . . Instead of trying the case as one entire case, which it was, and hearing all the evidence before arriving at a conclusion, he divided it into what we may call compartments and tried each separately, the result of which was that it was never really tried at all. . . .

[91] I dismiss the non-suit application respecting the failure of the plaintiffs to call expert evidence because it is not clear that the determination of the negligence in this case requires expert evidence. A review of the cases dealing with negligent investigation indicates that many were determined without expert evidence. As well, the negligence alleged against Dueck and Bunko-Ruys is not focussed primarily on "professional" negligence as such, but on "ordinary" negligence. Many of the issues raised by the negligence claim involve the determination by the court of what a "reasonable person" would conclude or do in the circumstances. Such a determination is likely to fall within the "common sense" exception to the necessity to call expert evidence in professional negligence cases as outlined in ter Neuzen v. Korn, supra. Conclusions

[92] The non-suit motion respecting the estate of Richard Quinney is allowed and the action against his estate is dismissed. The non-suit motion respecting the false imprisonment cause of action is allowed and this cause of action is dismissed against all the defendants. The non-suit motions respecting the remaining causes of action against the remaining four defendants are denied. As there has been mixed success in these non-suit applications, the matter of costs is left for determination at the conclusion of the trial.

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