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Gordon Folland

The right to sue lawyer

The Ontario government appealed this to the Supreme Court. On October 2, even as Robert Borden and Richard Klassen were using it as an authority in their malicious prosecution case, the Supreme Court dismissed Ontario's application.

This now stands as the law of the land. Folland's right to sue his lawyer affirmed



Andrew Stein and John Carter, (for the appellants ) Plaintiffs(Appellants)- and -


Elaine Atkinson, for the respondents (Defendants)

Heard: January 14, 2003

On appeal from the order of Justice J. David McCombs of the Superior Court of Justice dated June 3, 2002. WEILER J.A.:

The Issue

[1] Pursuant to a Rule 21.01 (1)(b) motion brought by the Crown, McCombs J. struck out those portions of the appellants' amended statement of claim alleging abuse of process, conspiracy to injure, and intentional infliction of harm on the basis that they disclosed no reasonable cause of action. The issue on this appeal is whether the motions judge erred in striking those causes of action.

The History of the Action

[2] The criminal proceedings giving rise to this action against the Crown are reported in R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.). In brief, Folland was staying overnight at the home of a woman and her house-mate Shawn Harris. The woman awakened in the night to find that she was being sexually assaulted and she identified Folland to police as the person who assaulted her. The police charged Folland with sexual assault.

[3] Harris, who had had consensual sex with the woman on some prior occasions, told one of the investigating officers that he was the person who had had sex with the woman. A few days later, he declined to give the police a signed statement.

[4] A pair of men's underwear was found in the woman's bed. DNA testing prior to trial excluded Folland as the donor of the semen found on the underwear. No DNA samples were taken from Harris prior to trial. Although defence counsel repeatedly pressed Crown counsel, in writing, to have the police conduct a fuller investigation of Harris' role in the affair and suggested to Crown counsel that he should call Harris as a witness at the trial so that the full story would be before the jury, Crown counsel refused to do either.

[5] Based on what Folland told him, Folland's trial counsel originally intended to call Harris as a defence witness but attempts to serve him with a subpoena were not successful. Folland's trial counsel was given an opportunity to apply for a material witness warrant but declined because he had begun to doubt that Harris would confess and was concerned that he would, instead, bolster the Crown's case by denying that he had done anything to the woman. Folland was convicted of sexual assault and sentenced to five years' imprisonment. After he had served two and a half years of his sentence, Folland's friends were able to obtain bodily samples from Harris and further DNA testing indicated that the semen on the underwear found in the woman's bed belonged to Harris. Folland's trial counsel stated that had he had the new DNA evidence, he would have elected to pursue the application for a material witness warrant.

[6] As a result of the fresh evidence, the Court of Appeal allowed Folland's appeal and ordered a new trial. The Court noted that had the sentence portion of the appeal proceeded, the Crown had already agreed that the sentence should be reduced to time served and suggested the Crown consider whether it was in the public interest to proceed with the new trial. Ultimately, the Crown elected not to proceed with a new trial and requested that the charge be stayed.

[7] The appellants then sued the Crown and the various police authorities alleging a number of causes of action. The appellants alleged that Folland had been maliciously prosecuted and that his ss. 7 and 11(d) rights under the Charter had been breached. The Crown did not move to strike these claims as disclosing no cause of action and the motions judge ordered that they would stand. The appellants also alleged malicious and negligent investigation, wrongful conviction and wrongful incarceration. These causes of action were abandoned at the hearing of the motion and were struck. There is no appeal in respect of them.

[8] In relation to the causes of action that are the subject of this appeal, namely, abuse of process, conspiracy to injure and intentional infliction of harm, the Crown's position was that the only common law tort available against a Crown attorney for prosecutorial misconduct was malicious prosecution.

[9] The motions judge agreed and held that the claims were barred by virtue of the Supreme Court of Canada's decisions in Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 (S.C.C.) and Proulx v. Quebec ( Attorney General) (2001), 206 D.L.R. (4th) 1 (S.C.C.). He stated:

On my reading of the authorities in particular the decisions of the SCC in Proulx and Nelles, it is in my view plain and obvious that there are no other causes of action available to the plaintiffs against the Crown defendants. In the result, the other causes of action are ordered struck from the statement of claim.

General Principles Applicable to all Rule 21.01(b) Motions

[10] As indicated by the motions judge, before a cause of action in a statement of claim can be struck out it must be plain and obvious that no cause of action is disclosed: Hunt v. Carey Canada inc., [1990] 2 S.C.R. 959. Applying Hunt, supra, this court has held that the burden on a defendant to strike a claim as disclosing no reasonable cause of action is very high, and the court's power to do so should be exercised only in the clearest cases: Temilini v. Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 (C.A.). For this reason the facts alleged in the statement of claim are accepted as proven unless

they are patently ridiculous or incapable of proof and the statement of claim is read generously with allowance for inadequacies due to drafting deficiencies: Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.). The novelty of a cause of action is of no concern: Johnson v. Adamson (1981), 34 O.R. (2d) 236 (C.A.) [Leave to appeal to the Supreme Court of Canada refused (1982), 35 O.R. (2d) 64n].

[11] Importantly, matters of law that have not been fully settled in the jurisprudence should not be disposed of pursuant to Rule 21.01(1)(b): Nash, supra, The analysis in this case is focussed on the last requirement.


[12] A Crown attorney has broad immunity against suits arising from the conduct of prosecutions. Until the Nelles decision in 1989, a Crown attorney in Ontario was considered to have absolute immunity respecting claims arising from his or her conduct of a prosecution.

[13] In Nelles, the Supreme Court of Canada held that in the interests of public policy absolute immunity is not justified and the court carved out an exception to the Crown's immunity in the case of malicious prosecution. The Court emphasized that the exception to a Crown attorney's immunity was narrow, in order to accommodate the competing interests of encouraging public trust and confidence in the impartiality of prosecutors, and of avoiding a chilling effect on prosecutors' independence and exercise of discretion. At p. 639, the Court identified the four elements which must be present in order to establish the tort:

  • 1. The proceedings must have been initiated by the defendant;
  • 2. The proceedings must have been terminated in favour of the plaintiff;
  • 3. There is an absence of reasonable and probable cause; and
  • 4. There is malice, or a primary purpose other than that of carrying the law into effect.

[14] In Oniel v. Toronto (Metropolitan) Police Force, [2001] O.J. No. 90 (C.A.), leave to appeal to the Supreme Court dismissed at [2001] S.C.C.A. No. 121, this Court held that continuing a prosecution in the absence of reasonable and probable grounds is capable of giving rise to an inference of malice. Borins J.A. wrote (at paras. 49-51): Although the prosecutor may have reasonable and probable grounds to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, the prosecutor lacks reasonable and probable grounds to continue the prosecution, and malice may be inferred.

Continuing the prosecution in the absence of an honest belief in the appellant's guilt would be incompatible with securing the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to the truth [emphasis added].>

[15] See also Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 (S.C.J.), at para. 27 where Dambrot J. held that although a police officer in Ontario typically makes a decision to initiate a prosecution by swearing an information, a prosecutor who carries on a prosecution maliciously may be sued for malicious prosecution regardless of any involvement in the initiation of proceedings.>

[16] The Supreme Court revisited Nelles in the Proulx decision and, although the Court disagreed on the result in that particular case, it unanimously confirmed that Nelles remains the law: Proulx supra, per majority at paras. 4, 9; per dissenting judgment at para. 123

[17] The majority of the Court in Proulx, at paras. 4, 8 and 9 began with the following general comments about claims against Crown attorneys:

[4] Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a Prosecutor's judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles v. Ontario affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances. Against these vital considerations is the principle that the Ministry of the Attorney General and its Prosecutors are not above the law and must be held accountable. Individuals caught up in the justice system must be protected from abuses of power. In part, this accountability is achieved through the availability of a civil action for malicious prosecution.

[8] ... A failed prosecution does not without more - much more - give rise to a viable claim for prosecutorial wrongdoing.

[9] As we have noted above, Nelles, set out four requirements that must be established on a balance of probabilities by the claimant in an action in damages based on prosecutorial misconduct in order to avoid the Crown's relative immunity against such suits [emphasis added].

[18] As is seen in the excerpt quoted above, the Court in Proulx, when confirming Nelles, did not identify or limit the four requirements of Nelles as being requirements of malicious prosecution claims only. It identified those requirements as the necessary elements of an action in damages based on prosecutorial misconduct. The term prosecutorial misconduct is a broad term that could encompass more than malicious prosecution. The only tort before the Court in Proulx, however, was the tort of malicious prosecution.

[19] The Crown's position before us is that the Proulx decision confirmed that where prosecutorial misconduct is alleged the four requirements set out in Nelles must always be proven. The Crown submits that the jurisprudence is settled and there is no benefit to the appellants characterizing their claims under a variety of labels because, if one of these four elements is not proven, all of the common law torts will fail.

[20] The appellants rely upon Milgaard v. Kujawa (1994), 118 D.L.R. (4th) 653 (Sask. C.A.) at 662-664 in which the Saskatchewan Court of Appeal 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.

[21] In addition in R. v. Cook (1997), 146 D.L.R. (4th) 437 (S.C.C.) at 445-446, L'Heureux Dubé J., on behalf of the Court, affirmed, albeit in a criminal context, that the improper exercise of prosecutorial discretion can result in a finding of abuse of process. She added, This misconduct can take many forms, and will often engage the rights set out in the Charter of Rights and Freedoms, although the exact manner in which this occurs will depend on the particular circumstances in the case: R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235. A plaintiff in an abuse of process action does not need to show that the proceedings terminated in his or her favour: Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc. (1995), 23 O.R. (3d) 370 at 379 (Div. Ct.).>

[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.

[23] I also note that the purpose of a Rule 21 motion is to bring finality to litigation that does not disclose a cause of action at an early stage of the proceedings. Here, the actions of malicious prosecution and for breach of Charter rights have not been struck and will be going on to trial in any event.


[24] It is inappropriate to strike the claims for abuse of process, conspiracy to injure and intentional infliction of harm at this stage of the proceedings because the jurisprudence is not settled that the four requirements of his action for malicious prosecution must always be proven when a common law tort is alleged against the Crown. Accordingly, I would allow the appeal, set aside the decision of the motions judge and dismiss the motion to strike the claims indicated.

[25] I would reserve the costs of the appeal and of the motion to the judge hearing the trial.

RELEASED: March 27, 2003
D. O'C. K.M. Weiler J.A.
I agree Dennis O'Connor A.C.J.O.
I agree M.A. Catzman J.A.