COURT OF APPEAL FOR ONTARIO

CITATION: Clark v.
    Ontario (Attorney General), 2019 ONCA 311

DATE: 20190418

DOCKET: C64373, C65142 & C65143

Lauwers, Huscroft and Trotter JJ.A.

BETWEEN

C64373

Jamie Clark, Donald Belanger and Steven Watts

Plaintiffs (Appellants)

and

The Attorney General of Ontario

Defendant (Respondent)

C65142

AND BETWEEN

Jamie Clark, Donald Belanger and Steven Watts

Plaintiffs (Respondents)

and

Attorney General of Ontario

Defendant (Appellant)

C65143

AND BETWEEN

Jamie Clark, Donald Belanger and Steven Watts

Plaintiffs (Respondents)

and

Attorney General of Ontario

Defendant (Appellant)

Lorne Honickman, for appellants Jamie Clark, Donald
    Belanger and Steven Watts in C64373 and respondents in C65142 and C65143.

Sunil Mathai and Heather Burnett, for the respondent Attorney
    General of Ontario in C64373 and appellant in C65142 and C65143.

Heard: October 3031, 2018

On appeal from the
    order of Justice David G. Stinson of the Superior Court of Justice, dated
    January 4, 2017, with reasons reported at 2017 ONSC 43.

And on appeal from the
    order of Justice David G. Stinson of the Superior Court of Justice, dated June
    13, 2017, with reasons reported at 2017 ONSC 3683.

By the Court:

A.

Overview

[1]

The Attorney General of Ontario and police
    officers Jamie Clark, Donald Belanger and Steven Watts have launched three
    separate appeals from two orders addressing a bifurcated motion.

[2]

These appeals arise out of the officers arrest
    of two men, Randy Maharaj and Neil Singh, in connection with an armed robbery
    that occurred in February 2009. Both men alleged that the officers assaulted
    them during the course of their arrests, and these allegations had significant
    consequences: charges against Mr. Maharaj were stayed, and although Mr. Singh
    was prosecuted and convicted, the trial judges finding that he was assaulted
    during his arrest led to his conviction being set aside and a stay being
    entered by this court.

[3]

The police officers sued the Attorney General,
    alleging that the Crown attorneys prosecuting Mr. Maharaj and Mr. Singh were
    negligent and misfeasant because they failed to adequately investigate the
    assault allegations and failed to call evidence  in particular, testimony from
    the officers  to refute the allegations.

[4]

On October 20, 2015, the officers served notice
    on the Attorney General, under ss. 7(1) and 10 of the
Proceedings
    Against the Crown Act
, R.S.O. 1990, c. P. 27, of their
    intention to commence an action. They commenced their action on June 22, 2016,
    asserting claims against the Attorney General in negligence and misfeasance in
    public office.

[5]

In the statement of claim the police officers allege that they have
    suffered irreparable harm including significant depression, emotional trauma
    and loss of enjoyment of life, and irreparable damage to their reputations
    and credibility among members of the judiciary, the Attorney Generals Office,
    the criminal defence bar and the public at large. In particular, the findings
    of fact made by judges of the Superior Court and the Court of Appeal that the
    officers assaulted and tortured accused in their custody is brought forward
    many times when they are required to testify in court. The consequence for the
    officers is that they have been subject to ridicule and contempt and will face
    this prejudice for the rest of their career.

[6]

The Attorney General moved under
r.
    21.01(1)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
to strike the action on the grounds that it is barred by the expiry
    of the limitation period in the
Limitations Act
,
2002, S.O. 2002, c. 24, Sched. B
,

and
    under r. 21.01(1)(b) because it disclosed no reasonable cause of action. The Attorney
    General also moved under rr. 21.01(3)(d) and 25.11 to strike the claims as
    scandalous and/or vexatious, on the basis that the officers statement of claim
    did not contain full particulars and pleaded bald allegations of malice.

[7]

The motion judge dismissed the motion to strike
    based on the limitations issue, struck the negligence claim as disclosing no
    reasonable cause of action, and allowed the misfeasance claim to proceed. He
    made no order regarding rr. 21.01(3)(d) or 25.11.

[8]

The officers appeal the negligence ruling, and
    the Attorney General appeals the limitations and the misfeasance rulings.

[9]

These appeals raise three issues:

(1) Is the
    action time barred?

(2) Does
    the action lie against the Crown for negligence?

(3) Does
    the action lie against the Crown for misfeasance in public office?

[10]

We address each issue after setting out the
    factual background.

[11]

For the reasons that follow, we conclude that
    the motion judge did not err in dismissing the motion to strike the action as
    time barred, in striking the negligence claim, and in allowing the officers misfeasance
    claim to proceed. The appeals are dismissed.

B.

Factual Background

[12]

We take these facts from the statement of claim.
    They are assumed to be true for the purposes of the
r. 21 motion,
unless they are patently ridiculous or incapable of proof: see
Hunt v. Carey Canada Inc.
, [1990] 2
    S.C.R. 959, at p. 980;
Falloncrest Financial Corp. v. Ontario

(1995),

27 O.R. (3d) 1 (C.A.), at p. 6
.

[13]

Sergeant Jamie Clark, Detective Sergeant Donald
    Belanger, and Detective Sergeant Steven Watts are police officers with the
    Toronto Police Service. On June 11, 2009, they were working with Hold Up Squad
    when they arrested Mr. Maharaj and Mr. Singh in connection with an armed
    robbery that had occurred at Crane Supply Canada, where Mr. Singh worked, in
    February 2009.

[14]

On June 11, 2009, the officers interviewed Mr.
    Maharaj and Mr. Singh, both of whom provided videotaped statements. Mr. Singh
    provided a false exculpatory statement to Det. Sgt. Watts and Sgt. Clark. Mr.
    Maharaj confessed his and Mr.  Singhs involvement in the crime to Det.
    Sgt. Watts and Det. Sgt. Belanger.

[15]

On June 12, 2009, during the course of the bail
    hearing, counsel for Mr. Maharaj advised the court that Mr. Maharaj had
    suffered injuries during the arrest including visible bumps and scratches under
    his ear. No suggestion was made at that time that he had been assaulted by the
    officers, nor was there any complaint that he had sustained a serious rib
    injury during the arrest or otherwise.

[16]

On July 16, 2010, the preliminary hearing
    commenced. The videotaped statements were admitted into evidence and their
    voluntariness was not challenged. The officers were called as witnesses and denied
    suggestions from Mr. Maharajs counsel that Mr. Maharaj had been assaulted
    during his arrest  specifically that he had been kicked on the side of the
    head and beaten by Sgt. Clark and Det. Sgt. Belanger. Mr. Maharaj and Mr. Singh
    were committed to stand trial.

The charges against Mr. Maharaj are
    stayed

[17]

After the committal, Crown Attorney Sheila
    Cressman was assigned carriage of the prosecution. On the eve of the trial, Mr.
    Maharaj brought an application to stay the proceedings against him and to exclude
    his confession on the ground that the police had beaten him and caused him to
    suffer a serious rib injury. His counsel provided Ms. Cressman with X-rays of
    his ribs to support his claim as well as a transcript from the bail hearing.

[18]

Ms. Cressman consulted with Dr. Farley Moss, a
    doctor at the hospital where the X-rays were taken. Dr. Moss confirmed that Mr.
    Maharaj had an acute rib fracture and advised that a person who had sustained
    such an injury would find it excruciatingly painful to make any movements with
    his arms or upper body. Dr. Moss was not asked to review the videotaped
    statement of Mr. Maharaj following his arrest, in which he is seen moving and
    lifting his arms.

[19]

Ms. Cressman received Mr. Maharajs medical
    records from Maplehurst Detention Centre, where he was incarcerated pending
    trial. The only injuries noted in the medical records were complaints about
    bruises to his upper arm; there was no indication that Mr. Maharaj ever
    complained about a rib injury, including in the first few days after the
    arrest. Ms. Cressman made no inquiries of Maplehurst staff or any of the
    medical staff who dealt with Mr. Maharaj.

[20]

Ms. Cressman consulted with a senior Crown
    Attorney, Frank Armstrong, about Mr. Maharajs statement. Without any further
    investigation, Mr. Armstrong agreed with Ms. Cressman that Mr. Maharajs
    statement would not be admissible as it could not be proven to be voluntary in
    light of the injuries he purportedly sustained during arrest. As a result, on
    November 22, 2011, the charges against Mr. Maharaj were stayed by Mr. Armstrong
    before McMahon J. of the Superior Court.

Mr. Singhs conviction and appeal

[21]

The trial against Mr. Singh proceeded on
    November 28, 2011. Counsel for Mr. Singh brought an application to stay the
    proceedings. Mr. Singh testified that Sgt. Clark assaulted him while Det. Sgt.
    Watts stood by. Mr. Maharaj testified that he was assaulted by Det. Sgt.
    Belanger and Sgt. Clark. Ms. Cressman did not call any evidence to challenge
    the assault allegations.

[22]

The officers expected to testify and would have
    testified in a manner consistent with the evidence they gave at the preliminary
    hearing. Although Ms.  Cressman had assured the officers that they would
    be called as witnesses, at the end of the first day of the hearing she advised Det.
    Sgt. Watts that their evidence would not be required. Det. Sgt. Watts expressed
    concern about the impact this decision would have on the officers, but Ms.
    Cressman did not change her position.

[23]

A jury convicted Mr. Singh of armed robbery and
    forcible confinement. Justice Thorburn ultimately dismissed his stay
    application, but nonetheless reduced his sentence in light of the
    uncontradicted evidence of assault:
R. v. Singh
, 2012 ONSC 4429, revd 2013 ONCA 750, 118 O.R. (3d) 253. She
    described the officers conduct as reprehensible and characterized the case
    as one of police brutality. Her decision and findings were widely reported in
    the mainstream media and on the Internet, and discussed in internal
    communications among Crown attorneys, criminal defence lawyers and the
    judiciary.

[24]

Mr. Singh appealed both his conviction and
    sentence. Before the appeal hearing, the Crown Law Office - Criminal advised
    the Toronto Chief of Police of its concern about the officers conduct. The
    Special Investigations Unit was notified and invoked its mandate. On July 4,
    2012, however, the Special Investigations Unit withdrew its mandate after Mr.
    Maharaj declined to participate in the investigation.

[25]

After the Special Investigations Unit withdrew
    its mandate, the Toronto Police Service Professional Standards Unit reviewed
    the misconduct allegations and conducted an extensive investigation. On October
    31, 2012, the TPS Unit completed its investigation, concluding that the
    allegations of use of excessive force could not be substantiated.

[26]

On October 18, 2013, this court heard Mr.
    Singhs appeal. Before the hearing, the Crown Attorney handling the appeal, Amy
    Alyea, met with Det. Sgt. Watts, who advised her of what the officers had
    learned about Ms. Cressmans conduct. Ms. Alyea took no further steps to
    investigate, did nothing to repair the damage to the officers reputation, and
    did not file a fresh evidence application on appeal. During the appeal hearing,
    Doherty J.A. asked Ms. Alyea about what had occurred, but she did not inform
    him or this court about Ms. Cressmans conduct and the supposed exculpatory
    findings regarding the officers conduct.

[27]

On December 12, 2013, the Court of Appeal set
    aside Mr. Singhs convictions and entered a stay:
R.
    v. Singh
,
2013 ONCA 750, 118 O.R. (3d) 253. Blair J.A. described the officers
    conduct as egregious, writing at para. 43 that:

What occurred
    here was the administration of a calculated, prolonged and skillfully
    choreographed investigative technique developed by these officers to secure
    evidence. This technique involved the deliberate and repeated use of
    intimidation, threats and violence, coupled with what can only be described as
    a systematic breach of the constitutional rights of detained persons

[28]

Following the appeal, the Toronto Special
    Investigations Unit re-opened its investigation, interviewed Mr. Maharaj, and
    reviewed all records. It ultimately determined that the rib injury post-dated
    the arrest and concluded that the allegations were not substantiated by the
    evidence.

[29]

On May 26, 2014, the Toronto Chief of Police
    asked the Ontario Provincial Police to conduct an independent review of the TPS
    Professional Standards Units work. The Ontario Provincial Police investigator
    concluded in a final report dated April 9, 2015 that the Units investigation
    was thorough and there was no reason to refute its conclusion that the
    allegations could not be substantiated.

C.

Is the action time barred?

[30]

By agreement of the parties, the
Limitations Act
issue was argued as a
    preliminary question.

[31]

The motion judge found that it was a reasonable
    inference that the trial court and appeal judgments came to the officers attention
    at or around the time the decisions were rendered. The officers knew that they
    had not been called to testify at trial and that the allegations of misconduct
    had not been contested at trial or on appeal. Despite this knowledge, the
    action was not commenced until June 22, 2016, well after the date of this
    courts decision setting aside the convictions and staying the charges against Mr.
    Singh.

[32]

The motion judge found that the claims asserted
    by the officers were by no means uncomplicated, as they involved the
    potential expansion of Crown liability to a new class of claimants, and noted
    the potentially disputed factual issue concerning the officers knowledge of
    their possible claim. In particular, the officers pleaded that they only became
    fully aware of the tortious nature of the Attorney Generals conduct and
    discovered their causes of action in negligence and misfeasance several months
    following this courts decision in
Singh
.

[33]

The motion judge acknowledged that, in general,
    the failure to appreciate the legal significance of discoverable facts does not
    suspend the running of a limitation period. However, he noted that there is an
    arguable exception for novel claims, citing
Boyce
    v. Toronto Police Services Board
, 2011 ONSC 53, at
    para. 23, affd 2012 ONCA 230, leave to appeal refused, [2012] S.C.C.A. No.
    265, where Low J. stated:

Section
    5(1)(a)(iv) [of the
Limitations Act
] does not
    import an idiosyncratic limitation period calibrated by the claimant's
    familiarity with or ignorance of the law. The test is an objective one.
While
    it is possible to envisage that a new kind of

right might arise that has
    not been hitherto protected, thus making it arguable that

a civil
    proceeding might not be seen objectively as an appropriate means to seek to
    remedy
, a battery causing personal injury is a classic example of the kind
    of wrong that is appropriate for redress by court action. A citizen is presumed
    to know the law of the land. [Emphasis added.]

[34]

In this case, the motion judge concluded that
    the exception was engaged. As this court indicated in
Beardsley v. Ontario

(2001), 57 O.R. (3d) 1 (C.A.), at paras. 21-22, plaintiffs should
    not routinely be deprived of the opportunity to place a complete factual
    context before a court where a limitations defence is asserted. He concluded:

[T]he question
    whether the plaintiffs should have known that a civil remedy was appropriate
    before they obtained legal advice, is a determination that should not be made
    at a preliminary stage such as this. At this stage, and based on the record as
    it currently exists, it is not plain and obvious that the limitation issue will
    be decided against the plaintiffs.

[35]

As a result, the motion judge dismissed the Attorney
    Generals motion to strike the action as statute barred. He noted, however,
    that he was not

determining the limitation period issue with finality:

[M]y decision is
    based on the directive of the Court of Appeal that pleadings should be closed
    before the court is asked to decide such an issue, except in situations where
    it is plain and obvious from a review of the statement of claim that no
    additional facts could be asserted that would alter the conclusion that a
    limitation period had expired. Save in those exceptional situations, such a
    motion should only be brought after pleadings have been exchanged, whether by
    way of a Rule 21 motion (if appropriate) or a motion for summary judgment.

[36]

The Attorney General argues that the motion judge
    erred by applying the wrong test on the motion, by finding that there is an
    exception to the general rule of discoverability for novel claims, and by
    failing to consider or conduct any analysis regarding the officers admission
    that they did not seek legal advice until several months after this courts
    decision in
Singh
.

[37]

Although we do not disagree with the motion
    judges conclusion, the matter can be resolved more simply: these were not the
    sort of rare circumstances in which it would be appropriate to find that the
    action was time barred in the context of a
r. 21.01(1)(a)
motion.

The motion was not properly brought
    under r. 21.01(1)(a)

[38]

The starting point is that an argument that a
    claim is barred by operation of the
Limitations Act
is a defence to a claim, and as such it must be pleaded in a
    statement of defence. Rule 25.07(4) makes this clear: In a defence, a party
    shall plead any matter on which the party intends to rely to defeat the claim
    of the opposite party.

[39]

The Attorney General seeks to dismiss the
    officers claim on the basis that it is time barred. It may well be, but the Attorney
    General must specifically so plead and has not done so.

[40]

The second problem is that the Attorney General
    seeks to use a
r. 21.01(1)(a)
motion to assert the
Limitations Act
defence that it has not
    pleaded. That rule involves the determination of a question of law raised in a
    pleading, and it is clear that the application of the
Limitations Act
is not a matter of law.
    This point has been made by this court on several occasions. For example, in
Beardsley
this court stated as follows,
    at paras. 21-22:

The motion to strike based on the expiry of a limitation period
    could only be made pursuant to rule 21.01(1)(a), which provides that a party
    may move for the determination of a question of law
raised by a pleading
.
    The expiry of a limitation period does not render a cause of action a nullity;
    rather, it is a defence and must be pleaded.

Plaintiffs would be deprived of
    the opportunity to place a complete factual context before the court if
    limitation defences were determined, on a routine basis, without being pleaded.
    Adherence to rules that ensure procedural fairness is an integral component of
    an appearance of justice. The appearance of justice takes on an even greater
    significance where claims are made against those who administer the law.

[41]

Despite
    these remarks, this court stated in
Beardsley

that it would be
    unduly technical to require a statement of defence to be delivered if it is
    plain and obvious from a review of the statement of claim that no additional
    facts could be asserted that would alter the conclusion that a limitation
    period had expired: at para. 21. To the extent that this comment created an
    exception, it was extremely limited in scope, as the example given makes clear:
    the expiry of the two-year limitation period under the
Highway Traffic Act
,

R.S.O. 1990, c. H. 8, in
    connection with a claim for property damage only, in circumstances in which the
    panel noted that the discoverability rule clearly did not apply.

[42]

Although
    this court has not categorically precluded the use of r. 21.01(1)(a) on
    limitations matters in subsequent cases, in several cases it has sought to
    discourage its use. In
Metropolitan Toronto Condominium Corporation No.
    1352 v. Newport Beach Development Inc.
, 2012 ONCA 850, 113 O.R. (3d) 673,
    at para. 116, Laskin J.A. said that a defendant could move to strike a claim
    based on a limitation defence[o]nly in the rarest of cases if the defendant
    has yet to deliver a statement of defence. A fuller explanation was provided in
Salewski v. Lalonde
, 2017 ONCA 515, 137 O.R. (3d) 762, at para. 42, in
    which the panel stated that this courts comment in
Beardsley
 had
    likely been overtaken by the enactment of the
Limitations Act
, 2002.
    The court in
Salewski

further limited the effect of the
Beardsley
comment by stating that it was never intended to apply to a case that is
    legally or factually complex: at para. 42.

[43]

Significantly,
    the panel in
Salewski
stated at para. 45 that, because the basic
    limitation period is now premised on the discoverability rule, the application
    of which raises mixed questions of law and fact, [w]e therefore question
    whether there is now any circumstance in which a limitation issue under the Act
    can properly be determined under rule 21.01(1)(a) unless pleadings are closed
    and it is clear the facts are undisputed.

[44]

The situation contemplated in
Salewski
 the close of pleadings and the absence of any factual dispute
    is very narrow, and this court has continued to discourage the use of r.
    21.01(1)(a) motions on limitations matters. In
Brozmanova v. Tarshis
,
    2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 19,
this court
    emphasized that [t]he analysis required under s. 5(1) of the
Limitations Act

generally requires evidence and findings of fact to determine. It
    does not involve a question of law within the meaning of rule 21.01(1)(a). Justice
    Brown described reliance on r. 21.01(1)(a) to advance a limitation period
    defence as a problematic use of the rule, one that risks unfairness to a
    responding plaintiff: at paras. 17, 23.

[45]

Kaynes
    v. BP, P.L.C.
, 2018 ONCA 337, 81 B.L.R. (5th) 6, does not undermine this
    approach. Although in that case this court agreed with the motion judge that the
    limitation issue could be determined under r. 21.01(1)(a), it did so on the
    basis of the parties agreement that there were no material facts in dispute,
    and in the context of an event-triggered limitation period under the
Securities
    Act
, R.S.O. 1990, c. S.5. This limitation period began to run without
    regard to the plaintiffs knowledge of the facts giving rise to the cause of
    action, in contrast to the discovery-based limitation period under the
Limitations
    Act.

[46]

In
    this case, the Attorney General seeks to strike the officers claim under r.
    21.01(1)(a) because it is plain and obvious that no additional facts could be
    pleaded that would alter the conclusion that the limitation period has expired,
    as in
Beardsley
. The Attorney General says that the officers claim
    makes clear that they learned the material facts to support their claim against
    the trial Crown no later than October 18, 2013, and against the appeal Crown no
    later than December 12, 2013, and that both dates are well outside the two-year
    limitation period. Accordingly, says the Attorney General, there is no need to
    file a statement of defence.

[47]

Salewski
says otherwise. The Attorney General seeks to diminish the authority of this
    case, arguing it is not clear whether this court heard argument on the matter
    and, in any event, that
Beardsley
is controlling authority that cannot
    be overturned except by a five-member panel of this court. Further, the Attorney
    General denies the existence of a novel claim exception, as suggested in
Boyce
.

[48]

In
    our view,
Salewski
is the controlling authority and limitations issues
    are not properly determined under r. 21.01(1)(a), unless pleadings are closed
    and the facts are undisputed. But even assuming that the
Beardsley
comment
    has not been overtaken by the
Limitations Act
, this is not an
    appropriate case in which to apply the exception
Beardsley
is
    understood as creating.

[49]

We
    do not say that there is an exception for novel litigation, nor do we say that
    this is novel litigation in any event. But it is unusual litigation, insofar as
    it attempts to impose a duty of care on Crown attorneys, and it is litigation
    against the Attorney General. As this court indicated at para. 22 of
Beardsley
,
    adherence to the rules  allowing the parties to have a complete factual record
    before the court prior to the determination of limitation defences  is a
    matter of procedural fairness, a matter of even greater significance where
    claims are made against those who administer the law.

[50]

The
    Attorney General takes the position that the officers failed to articulate what
    facts they could plead that would affect the discoverability of their claim for
    the purposes of the
Limitations Act
. But the Attorney General is, in
    essence, attempting to use r. 21.01(1)(a) for a purpose for which it was not
    designed. There is no obligation on the officers to facilitate its attempt to
    do so, nor is it appropriate for this court to vindicate a
Limitations Act
defence on the basis of a record that may well be incomplete.

[51]

Accordingly,
    for these reasons we would uphold the motion judges decision refusing to strike
    the officers claim on the basis that it is time barred.

D.

Does the action lie against the Crown for negligence?

[52]

The
    Attorney General brought the motion to strike the negligence claim under r.
    21.01(1)(b) of the
Rules of Civil Procedure
, which provides that [a]
    party may move before a judge ... (b) to strike out a pleading on the ground
    that it discloses no reasonable cause of action or defence. The motion judge
    instructed himself correctly, at paras. 22-23, that the test on a motion to
    strike is whether it is plain and obvious that the plaintiff's statement of
    claim discloses no reasonable cause of action, assuming that the facts as
    stated in the statement of claim can be proven
: Hunt v.
Carey
    Canada Inc.
, at para. 36. He noted that all facts pleaded in the claim are
    accepted as true unless they are manifestly incapable of being proven
    (including because they are based on assumptions and speculation) or patently
    ridiculous, for which he cited numerous authorities.

[53]

It
    is well-settled that, based on Crown immunity principles, no claim lies against
    the Crown in negligence, whether it be simple or gross negligence; at common
    law, an action lies only in malicious prosecution: see
Nelles v. Ontario
,
    [1989] 2 S.C.R. 170, at para. 55;
Proulx v. Quebec (Attorney General)
,
    2001 SCC 66, [2001] 3 S.C.R. 9, at para. 35; and
Miazga v. Kvello
,
    2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 80-81 (the trilogy).

[54]

In
Henry v. British Columbia (Attorney General),
2015 SCC 24, [2015] 2
    S.C.R. 214, the Supreme Court of Canada applied its decision in
Vancouver
    (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28 awarding damages under the
Canadian Charter of Rights and Freedoms
, and permitted a claim against
    the Crown to proceed on the basis of wrongful non-disclosure. At the same time,
    the court affirmed its holdings in the trilogy that the Crown is immune from
    actions in negligence commenced by members of the public: at paras. 72, 74, 88,
    92-94.

[55]

In
    the face of this wall of authority, the motion judge was asked to privilege the
    interests of police officers over ordinary citizens by recognizing their claim
    in negligence against the Crown. He rightly declined this invitation.

[56]

Based
    on the trilogy and
Henry
, the motion judge accepted that the only
    claims capable of penetrating the shield of Crown immunity are actions in
    malicious prosecution and wrongful non-disclosure: at para. 34. However, he
    relied on the decision in
Smith v. Her Majesty the Queen in right of
    Ontario et al.
, 2016 ONSC 7222,
revd
Smith v.
    Attorney General of Ontario
, 2018 ONSC 993, 141 O.R. (3d) 309 (Div. Ct.), in
    which Matheson J. found that this body of cases was not dispositive of whether
    Crown attorneys are liable to the police for providing negligent legal advice.
    As Matheson J. said, at para. 136, [t]he extensive body of law about common
    law immunity does not focus on lawsuits by the police against Crown Attorneys.
    (The appeal from the Divisional Court to this court is under reserve.)

[57]

After
    reviewing the cases relied upon by Matheson J., the motion judge concluded, at
    para. 77:

While a court might later decide that Crown Attorneys should
    also be immune from negligence claims by police officers, or indeed by any
    person, I agree with Matheson J. that it is not plain and obvious that such
    immunity has been recognized in the existing case law. I therefore decline to
    strike the officers' claim on the basis of common law Crown Attorney immunity.

[58]

After
    the motion judge released his reasons, the Divisional Court overturned the
    decision of Matheson J., holding that, based on existing jurisprudence, it is
    plain and obvious that Crown attorneys are immune from any claim based in negligence:
Smith v. Attorney General of Ontario
, 2018 ONSC 993, 141 O.R. (3d) 309
    (Div. Ct.).

[59]

Nevertheless,
    treating the matter as an open question, the motion judge conducted his own
    analysis under
Anns v. Merton London Borough Council
, [1978] A.C. 728,
    and
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537, to determine
    whether Crown attorneys owe a duty of care to police officers.

[60]

The
    Attorney General conceded that the reasonable foreseeability of harm component
    of the test had been satisfied. The proximity component was contentious. The
    motion judge found that the officers had established a relationship of
    proximity, thereby giving rise to a
prima facie
duty of care, albeit a
    narrow one.

[61]

The
    motion judge was not asked to find an open-ended duty owed by Crown attorneys
    to all investigating officers: at para. 100; rather, the proposed duty of care
    was limited to allegations of serious misconduct by police officers in the
    context of
Charter
motions. As the motion judge concluded, at para. 104:

In my view, it is not plain and
    obvious that there would be no
prima facie
duty of care owed by
trial
    Crown Attorneys
to police officers to take reasonable care in the course of
    investigating and defending
Charter
motions alleging serious misconduct
    by police officers. Such a proximate relationship could arise from the fact
    that significant interests of police officers are engaged when they are subject
    to misconduct allegations on
Charter
motions that only Crown Attorneys
    are in a position to defend against. [Emphasis added.]

[62]

This
    aspect of his holding essentially extinguished the negligence claim against the
    appeal Crown in this litigation. This was based on the motion judges earlier
    finding, at para. 93, that the appeal Crown cannot have caused harm to the
    officers by failing to take steps that would have had no effect on the outcome
    of the appeal.

[63]

The
    motion judge qualified the
prima facie
duty even further. He held that
    it would not apply to situations where a Crown attorney enters a stay of
    proceedings. As he explained, at para. 105: The proposed duty, if available,
    could only be available where an accused person has brought a
Charter
motion
    alleging serious misconduct and a court will be asked to hear evidence and
    decide the merits of the allegations.

[64]

The
    motion judge proceeded to the second stage of the
Anns/Cooper
framework and concluded that public policy considerations defeated the
    recognition of a
prima facie
duty of care. He conducted his analysis
    without an evidentiary record, relying instead on the analogous policy
    considerations discussed in the trilogy and in
Henry
. Applying these
    same considerations in the duty of care context, the motion judge found, at
    para. 137, that there were valid and important policy reasons not to expand
    the civil liability of Crown Attorneys in a case such as this. The claim was
    struck.

[65]

We
    agree with the motion judges decision to strike the negligence claim. However,
    we do so for different reasons.

Crown immunity: The existing jurisprudence is
    dispositive

[66]

The
    essential question before the motion judge was the scope of Crown immunity and
    whether it should be diluted to permit negligence claims by police officers.
    This aspect of Crown immunity has been squarely determined by the Supreme
    Courts malicious prosecution trilogy and
Henry
. We are not persuaded
    that this line of authority can be avoided, simply by substituting one class of
    claimants (former accused persons) for another (police officers). As such, it
    is plain and obvious that the negligence claim cannot succeed.

[67]

The
    motion should have been decided on this basis alone. There was no need to
    conduct an analysis under
Anns/Cooper
. In concluding that a duty of
    care ought not to be recognized, the motion judge relied on the same important
    policy considerations that animate the Supreme Courts approach to Crown
    immunity. Analyzed under the duty of care paradigm, or as a Crown immunity
    problem, the result must be the same  the claim is doomed to fail.

[68]

The
    motion judge erred in finding that existing case law was not dispositive of the
    tenability of the plaintiffs claim in negligence. The motion judge said, at
    para. 77: With the exception of
Smith
, courts have not considered the
    potential Crown Attorney civil liability to police officers. While this may be
    so, with respect, this approach was too narrow.

[69]

The
    motion judge was aware of this courts decision in
Paton Estate v. Ontario
    Lottery and Gaming Commission
, 2016 ONCA 458, 131 O.R. (3d) 273, in which
    Pardu J.A. said, at para. 12: It is not determinative, on a motion to strike,
    that the law has not yet recognized a particular claim. Rather, the court must
    ask whether it is plain and obvious that the claim has no reasonable prospect
    of success. In
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42,
    [2011] 3 S.C.R. 45, McLachlin C.J. added, at para. 21: The approach must be
    generous and err on the side of permitting a novel but arguable claim to
    proceed to trial.

[70]

The
    officers argue that their negligence claim should not have been struck at the
    pleadings stage because the motion judge was deprived of a proper evidentiary
    record. They submit that their claim is novel and that it is mere speculation
    that the policy considerations accepted in the trilogy and
Henry
are
    applicable to police officers as claimants. We reject both arguments.

[71]

We
    accept that any countervailing policy concerns relied upon to extend the reach
    of Crown immunity must be more than speculative: see
Fullowka v.
    Pinkertons of Canada Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 57.
    However, this does not necessarily require an evidentiary record.

[72]

This
    court considered this issue in
Arora v. Whirlpool Canada LP
, 2013 ONCA
    657, 118 O.R. (3d) 113, leave to appeal refused, [2013] S.C.C.A. No. 498,
    involving an appeal from a refusal to certify a class proceeding because it
    disclosed no cause of action: see s. 5(1)(a) of the
Class Proceedings Act
,
1992, S.O. 1992, c. 6. The motion judge had failed to find a duty of care
    under the
Anns/Cooper
test. The appellants argued that the motion
    judge should not have undertaken the policy analysis required under this test
    in the absence of a full factual record.

[73]

Writing
    for the court, Hoy A.C.J.O. rejected this argument. She held, at para. 89, that
    in certain circumstances a policy analysis can be conducted on a pleadings
    motion. She raised a consideration that is significant on this appeal, at para.
    90: It is also important to consider what, in a particular case, a factual
    record could reasonably be expected to add to the courts determination. She
    observed that counsel did not provide any meaningful indication of the nature
    of the policy evidence it would lead should the matter proceed further: at
    para. 91. During the oral hearing of this appeal, counsel for the officers was
    similarly unable to point to any potential evidence that would assist on the
    issue of policy.

[74]

Importantly,
    Hoy A.C.J.O. noted that the motion judge had the benefit of a significant body
    of jurisprudence to assist in answering this precise question: at para. 92.
    She further observed that the issue was not entirely novel, and that there
    was a detailed statutory framework and abundant academic authority on the
    issue: at para. 92.

[75]

That
    is precisely the situation in this case. The issue is not entirely novel; the
    officers simply advance a variation on a familiar theme  the scope of Crown
    immunity in the context of criminal prosecutions. The Supreme Court has
    pronounced on this issue on no less than four occasions. On each occasion, the
    court provided extensive reasons, giving due consideration to the perils of
    exposing Crown attorneys to negligence claims.

[76]

In
Henry
, the court created a further exception to Crown immunity. That
    case was also decided at the pleadings stage. There was no new evidence
    touching on policy implications of allowing the plaintiffs claim to proceed.
    We now consider
Henry
in more detail.

The impact of Henry

[77]

Henry
is significant for its recognition of a new cause of action against the Crown
Charter
damages for wrongful non-disclosure in a criminal prosecution.
    The court rejected the Crowns submission that, if such a cause of action is to
    be recognized, it should be predicated on a standard that approximates malice.
    Writing for the majority, Moldaver J. found that while malice did not provide a
    useful framework for analyzing when wrongful non-disclosure becomes actionable,
    the policy underpinnings of this Courts malicious prosecution jurisprudence
    inform the proper scope of Crown liability for
Charter
damages in this
    context: at para. 32. They are also helpful in this case.

[78]

The
    court must undertake four tasks in determining a claim for
Charter
damages under
Ward
: (1) assess whether the
Charter

has
    been breached; (2) establish why damages are a just and appropriate remedy;
    (3) consider any countervailing factors that could defeat a damages award; and
    (4) assess the quantum of damages (at para. 4). The second task bears
    similarities to the second stage of the
Anns/Cooper
test.

[79]

In
    his analysis in
Henry
, Moldaver J. focused on the policy
    considerations recognized in the trilogy, which he recognized as compelling
    good governance concerns: at para. 71. First, appropriate thresholds for
    liability must ensure that Crown attorneys are not diverted from their
    important public duties by having to defend against a litany of civil claims. A
    standard that is too low runs that risk by allowing for an avalanche of civil
    proceedings. As Moldaver J. said, at para. 72: The collective interest of
    Canadians is better served when Crown counsel are able to focus on their
    primary responsibility  the fair and effective prosecution of crime.

[80]

The
    second good governance consideration is avoiding the creation of a chilling
    effect on Crown prosecutors (i.e., the fear of civil liability motivating
    defensive lawyering on the part of Crown attorneys). Moldaver J. said, at para.
    73: The public interest is undermined when prosecutorial decision-making is
    influenced by considerations extraneous to the Crowns role as a quasi-judicial
    officer.

[81]

Justice
    Moldaver asserted, at para. 41: These concerns are very real, and they provide
    compelling reasons why the availability of
Charter
damages should be
    circumscribed through the establishment of a high threshold. This high
    threshold is reflected in the courts malicious prosecution cases, just as it
    is in the Supreme Courts jurisprudence on the review of Crown discretion in
    criminal cases. Pointing to the courts decisions in
R. v. Anderson
,
    2014 SCC 41, [2014] 2 S.C.R. 167, at para. 48,
Krieger v. Law Society of
    Alberta
, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 32, and
R. v.
    Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41, Moldaver J. said, at
    para. 49: It is a bedrock principle that the exercise of core prosecutorial
    discretion is immune from judicial review, subject only to the doctrine of
    abuse of process.

[82]

Justice
    Moldaver then drew a link between the abuse of process doctrine in the public
    law sphere and the requirement of malice in the private law sphere. He
    considered the standard reflected in the tort of malicious prosecution to be an
    analogue to the doctrine of abuse of process: at para. 50. At para. 51 of his
    reasons, Moldaver J. quoted from
Miazga
, in which Charron J. said, at
    para. 81, that incompetence, inexperience, poor judgment, lack of
    professionalism, laziness, recklessness, honest mistake, negligence, or even
    gross negligence will not underwrite a claim against the Crown.

[83]

The
    court ultimately rejected a malice standard for claims for non-disclosure under
    s. 24(1) of the
Charter
. However, the teachings from
Nelles
and its progeny were safely preserved. As Moldaver J. said, at para. 66:

For these reasons, I reject the
    application of the malice standard. In doing so,
I do not in any way seek to
    undercut this Courts malicious prosecution jurisprudence
. The qualified
    immunity established in
Nelles
continues to govern tort actions for
    malicious prosecution. Furthermore, as I will explain, while the malice
    standard is not directly applicable, the policy factors outlined in
Nelles
inform the liability threshold in this case. [Emphasis added.]

[84]

Justice
    Moldaver rejected the application judges preference for a negligence-based
    standard. He underscored this approach in the following passages of his
    judgment, at paras. 74, 76, 92 and 93:

For these reasons, I conclude that good governance concerns
    mandate a threshold that substantially limits the scope of liability for
    wrongful non-disclosure.
In my view, the standard adopted by the application
    judge, which is akin to gross negligence, does not provide sufficient limits.
    As I will explain, a negligence-type standard poses considerable problems, and
    ought to be rejected.

However, the policy concerns raised in the malicious
    prosecution trilogy are not confined to the exercise of core prosecutorial
    discretion. In my view,
those concerns have a broader reach and are
    implicated wherever there is a risk of undue interference with the ability of
    prosecutors to freely carry out their duties in furtherance of the
    administration of justice.

Indeed, the consequences of setting a lower threshold in
    this context  simple negligence, or even the gross negligence standard adopted
    by the application judge  would be serious. This type of threshold implicates
    a duty of care paradigm that ignores the basic realities of conducting a
    criminal prosecution.

...

A duty of care paradigm risks
    opening up a Pandoras Box of potential liability theories
. For example, if
    prosecutors were subject to a duty of care, a claimant could allege that they
    failed to probe the police forcefully enough to ensure that relevant
    information was not being suppressed.
Such an approach would effectively
    impose an obligation on prosecutors to police the police
. [Emphasis
    added.]

Picking up on this last passage, it is equally
    unpalatable, and untenable for our criminal justice system, to equip the police
    with the means to police prosecutors.

[85]

As
Henry
so powerfully demonstrates, the Supreme Court remains steadfast
    in its rejection of negligence-based claims against Crown attorneys. It could
    not be clearer. The officers attempt to side-step this entire line of
    jurisprudence by suggesting that the policy considerations are different when
    it comes to police officers. We disagree.

[86]

The
    first governance factor  the diversion of Crown attorneys from their primary
    duties  is equally valid when the police are substituted for former accused
    persons. Allowing for claims based in negligence would expose Crown attorneys
    to innumerable claims of police officers who feel aggrieved by decisions with
    which they do not agree. It would not serve the criminal justice system well
    for busy Crown attorneys to worry about being dragged into court to fight off
    the grievances of disgruntled police officers. It may well be that, in this
    case, the actions of the trial Crown had serious consequences for the officers;
    however, this is no reason to open the floodgates.

[87]

The
    second governance factor  encouraging defensive lawyering by Crown attorneys
    also remains valid in this context. Exposure to negligence claims by the police
    would encourage Crown attorneys to focus on extraneous factors during the
    course of a prosecution. This would tend to distort principled decision-making,
    in the same way as would the recognition of negligence claims by former accused
    persons.

[88]

The
    decision of Crown attorneys to initiate, continue, or terminate a prosecution
    should be based on whether there is a reasonable prospect of conviction and
    whether the prosecution is in the public interest:
Miazga
, at para.
    64. The possibility of civil claims by the police would distort these venerable
    twin duties. It would have a deleterious effect on the administration of
    justice by undermining the publics faith in the integrity of independent Crown
    decision-making. Moreover, exposing Crown attorneys to negligence claims by the
    police may result in prolonged court proceedings in which Crown attorneys make
    untenable prosecutorial decisions on
Charter
motions for fear of being
    sued. It would encourage the litigation of collateral issues, which does not
    sit well with the realities of finite criminal justice resources and the
    pressures of firm constitutional time constraints. See
R. v. Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631.

[89]

We
    are of the view that all of the policy considerations that informed the trilogy
    and
Henry
are operative in this case. Although the officers complain
    that the motion judges decision was made without a proper record, they point
    to nothing that might have some bearing on the policy considerations already
    embedded in the jurisprudence.

[90]

Accordingly, on a straightforward application of the Supreme Courts
    Crown immunity jurisprudence, it is plain and obvious that the officers claim
    in negligence must fail. The motion judge was right to strike this aspect of
    their claim: see
Thompson v. Ontario (Attorney General)
(1998), 113 O.A.C. 82 (C.A.);
Gilbert v. Gilkinson (2005)
, 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A.
    No. 67; and
Miguna v. Ontario(Attorney General)
,
(2005), 205 O.A.C. 257 (C.A.).

Additional issue raised by the Crown

[91]

The
    Attorney General has persuaded us that the motion judge erred in failing to
    find that the existing case law on Crown immunity was dispositive of the
    negligence claim. The Attorney General asks us to go further and correct the
    motion judges conclusion that there is a relationship of proximity between the
    police and Crown attorneys. It is unnecessary to do so for the following
    reasons.

[92]

In
    conducting the second part of his
Anns/Cooper
analysis, the motion
    judge found that the same policy considerations that govern the scope of Crown
    immunity precluded a finding that Crown attorneys owe a duty of care to police
    officers. Allowing for the fact that he did not need to undertake this
    analysis, his reliance on these considerations was appropriate. There is a
    clear correspondence between the factors that animate the scope of Crown
    immunity and the countervailing factors to be considered at the second stage of
    the
Anns/Cooper
framework.

[93]

This
    is illustrated by British case law. In
Henry
, Moldaver J., at para.
    72, referred to
Elguzouli-Daf v. Commissioner of Police of the Metropolis
,
    [1995] Q.B. 335, in which the Court of Appeal for England and Wales considered
    whether the Crown Prosecution Service owed a duty of care to persons it
    prosecuted. Assuming that reasonable foreseeability of harm could be
    established, the court found there was no relationship of proximity between
    prosecuted persons and the Crown Prosecution Service. The court also concluded
    that it would not be fair, just or reasonable to recognize such a duty. Lord
    Justice Steyn (as he then was) wrote, at p. 349:

I conclude that there are compelling considerations, rooted in
    the welfare of the community, which outweigh the dictates of individual
    justice. I would rule that there is no duty of care owed by the C.P.S. to those
    it prosecutes.

[94]

This
    decision has been cited with approval on many occasions, including by the House
    of Lords (
Customs and Excise Commissioners v. Barclays Bank plc
,
    [2007] 1 A.C. 181, at p. 205; and
Jain v. Trent Strategic Health Authority
,
    [2009] 2 W.L.R. 248, at p. 258), and by the Supreme Court of the United Kingdom
    (
SHX v. The Crown Prosecution Service
, [2017] 1 W.L.R. 1401, at para.
    37).

[95]

We
    also refer to the alternative finding of the Court of Appeal. As Steyn L.J.
    explained, at p. 349:

I have rested my judgment on the
    absence of a duty of care on the part of the C.P.S. If my conclusion is wrong,
    I would
for the reasons I have given in dealing with the question whether a
    duty of care exists rule that the C.P.S. is immune from liability in
    negligence.
[Emphasis added.]

[96]

This
    passage illustrates the considerable correspondence between duty of care policy
    considerations and the scope of Crown immunity. All roads lead to the same
    destination  the Crown is not liable to police officers in negligence  and it
    is unnecessary to embark upon a parallel analytical path only to end up in the
    same place. A proper articulation of whether and under what circumstances a
    relationship of proximity exists between Crown attorneys and police requires a
    fact-specific analysis that is unnecessary in this case. We decline to engage
    in a hypothetical inquiry that is properly saved for a scenario in which it is
    required.

Ultimately, the motion judge was right to strike the
    negligence claim.

E.

Does an action lie against the Crown for misfeasance in public office?

[97]

The Attorney Generals motion to
    strike the officers claim for misfeasance in public office was brought under
    r. 21.01(1)(b) of the
Rules of Civil Procedure
.
The
    applicable principles were reviewed in the preceding section of this decision.

[98]

The elements of the tort of misfeasance in public office
    were set out by the Supreme Court of Canada in
Odhavji Estate v. Woodhouse
, [2003] 3 S.C.R. 263, at paras. 22-23.
The
    motion judge succinctly and accurately detailed the elements of this tort
for the category of claim made in this case, at para.
    141:

[T]he tort is made out by a
    public officer who acts with knowledge both that she or he has no power to do
    the act complained of and that the act is likely to injure the plaintiff. [
Odhavji
at para. 22]  [T]he tort involves deliberate disregard of official duty
    coupled with knowledge that the misconduct is likely to injure the plaintiff:
Odhavji
(at para. 23). The tort of misfeasance in a public office requires an element
    of bad faith or dishonesty:
Odhavji
(at para. 28). For a public
    officer's conduct to fall within the scope of the tort, the officer must
    deliberately engage in conduct that he or she knows to be inconsistent within
    the obligations of the office:
Odhavji
(at para. 28).

[99]

The Attorney General makes two
    arguments: first,
the tort of misfeasance
    in public office was inadequately pleaded and the motion judge erred in failing
    to so find; and second, the motion judge erred in failing to find that Crown attorneys
    are immune from civil liability for misfeasance in public office. We do not
    accept these arguments, for the reasons that follow.

Misfeasance in public office was adequately pleaded

[100]

The motion judge set out
    the allegations made by the officers and stated, at para 149:

[T]he officers have pleaded that
    the Crown Attorneys acted unlawfully by acting in breach of their statutory
    duties under the
Crown Attorneys Act
and by breaching their oath of
    office. In my view, they have pleaded the essential elements of the tort of
    misfeasance in public office by asserting knowing, deliberate, and unlawful
    disregard of official duty coupled with knowledge that the misconduct is likely
    to injure the plaintiffs.

[101]

The motion judge added, at para.
    150:

The dispute between the parties
    largely relates to the proper construction of the statutory duties of Crown Attorneys
    and whether they were in fact breached in this case. At this stage, a motion to
    strike, I am not called upon to decide that the plaintiffs can prove their
    allegations; instead, I am required to assume they can.

[102]

We agree with the motion judges
    conclusion that the pleading of misfeasance in public office was adequate, as a
    careful review of the statement of claim reveals. The pleading of this tort
    focuses in particular on the Crowns conduct of the appeal. This courts reasons
    were especially hard on the officers, noting that their conduct in this case
    might well be characterized as torture. The court noted, at para 43, to
    repeat:

What occurred here was the
    administration of a calculated, prolonged and skilfully choreographed
    investigative technique developed by these officers to secure evidence. This
    technique involved the deliberate and repeated use of intimidation, threats and
    violence, coupled with what can only be described as a systematic breach of the
    constitutional rights of detained persons - including the denial of their
    rights to counsel.

It would be
    naïve to suppose that this type of egregious conduct, on the part of these
    officers, would be confined to an isolated incident.

[103]

The statement of claim asserts, in
    paras. 33 and 34:

During oral argument at the
    appeal, Justice Doherty, asked Ms. Alyea many questions about what had
    occurred.
She never advised him, or the court, about
the new material
    facts that the Crown had learned about the conduct of Ms. Cressman, and more
    importantly,
the exculpatory findings with respect to the conduct of the
    police officers which she had come to know
.

As such, the
Crown, either
    negligently or deliberately, attempted to protect its own agents conduct
,
    rather than respecting their duty of care and responsibility to the officers
    and the administration of justice. [Emphasis added.]

[104]

The statement of claim states
    plainly, at para. 47, that Crown counsel
committed the tort of misfeasance in public office by engaging in deliberate
    and unlawful conduct in their capacity as Crown attorneys, clearly in
    contravention of their sworn statutory duty. It was deliberate and unlawful
    conduct. Further:

The new material facts Ms. Alyea
    and her superiors became aware of which clearly exonerated the police officers
    and implicated Ms. Cressmans conduct,
were supressed by senior Crown Law
    Officers
and were kept from the judges of the Court of Appeal. [Emphasis
    added.]

[105]

Other critical elements of the
    tort were also pleaded, at para. 48:

Crown attorneys involved in this
    case deliberately engaged in conduct that they knew to be inconsistent with the
    obligations of the Crown attorney and
they did so in bad faith, with the
    knowledge that this misconduct was likely to injure the officers
. [Emphasis
    added.]

[106]

The pleading of misfeasance in
    public office is adequate, properly particularized, and carefully tracks the
    elements of the
Odhavji Estate

test. The motion judge did not err in
    so finding.

Crown attorneys are not immune from civil liability for
    misfeasance in public office

[107]

The Attorney General
    argues that Crown attorneys are immune from liability for misfeasance in public
    office, and enlists the same two grounds it deployed in the successful argument
    that Crown attorneys are immune from liability for negligence in the performance
    of their duties: the prospect of liability for misfeasance could divert Crowns
    from their duties and could have a chilling effect on their conduct. These were
    the policy reasons Moldaver J. rejected in
Henry
when he extended liability for
Charter
damages for wrongful non-disclosure in a criminal
    prosecution
.

[108]

The motion judge
    rejected these arguments in relation to the claim for misfeasance in public
    office.

[109]

We conclude that Crown attorneys are not immune from claims
    of
liability for misfeasance in public
    office
.
The trigger for
    liability provides the functional equivalent of the high liability threshold
    Moldaver J. set in
Henry
for liability for
Charter
damages for wrongful disclosure.

[110]

The nerve of the
    Supreme Courts decisions in the
trilogy
and in
Henry
is the deliberate abuse of authority by Crown attorneys.
    See
Nelles
, at paras. 55-56, per Lamer J.;  and
Proulx
, at
    para. 35, per Iacobucci and Binnie JJ. In
Miazga
, Charron J. said, at
    para. 51:

Thus, the public law doctrine of
    abuse of process and the tort of malicious prosecution may be seen as two sides
    of the same coin: both provide remedies when a Crown prosecutor's actions are
    so egregious that they take the prosecutor outside his or her proper role as
    minister of justice, such that the general rule of judicial non-intervention
    with Crown discretion is no longer justified. Both abuse of process and
    malicious prosecution have been narrowly crafted, employing stringent tests, to
    ensure that liability will attach in only the most exceptional circumstances,
    so that Crown discretion remains intact.

[111]

In
Miazga
, several parties
    sought to amend the test from
Nelles
so that malice could be inferred because independent evidence of malice
    presents too high a barrier, but Charron J. rejected these arguments, at para.
    52, because they are ill-conceived and do not account for the careful
    balancing established in
Nelles
and
Proulx
between the right of
    individual citizens to be free from groundless criminal prosecutions and the
    public interest in the effective and uninhibited prosecution of criminal
    wrongdoing. She concluded that the inherent difficulty in proving a case of
    malicious prosecution was an intentional choice by the Court, designed to
    preserve this balance. See also paras. 79-84.

[112]

The need to establish
    abuse of authority was noted by Moldaver J. in
Henry
, at para. 49,
    which we repeat for convenience:

It is a bedrock principle that the
    exercise of core prosecutorial discretion is immune from judicial review,
    subject only to the doctrine of abuse of process. The presence of bad faith and
    improper motives may indicate this type of conduct. [Citations omitted.]

[113]

Drawing on
Henry
, there are compelling good governance concerns that
    require a high liability threshold in order for the tort of misfeasance in
    public office to be a tenable cause of action against Crown attorneys. That
    high liability threshold is satisfied by the requirement of the tort of
    misfeasance in public office set out in
Odhavji
that the claimants show the presence of bad faith or
    improper motives.  We also note Moldaver J.s qualification, at para. 83 of
Henry
, that there may be case-specific policy concerns
    that militate against an award, even if the appellant has made out the
    heightened per se threshold. This qualification applies equally to the tort of
    misfeasance in public office, but requires cogent evidence to substantiate it.

[114]

We agree with the
    motion judges conclusion that the pleading of misfeasance in public office was
    adequate and that Crown attorneys are not immune from claims of
liability for misfeasance in public office
.

F.

Disposition

[115]

The appeals are dismissed, with
    costs as follows, by agreement: on the limitation appeal, the officers are
    entitled to costs in the amount of $5,000; on the negligence appeal, the
    Attorney General is entitled to costs in the amount of $10,000; and on the
    misfeasance appeal, the officers are entitled to costs in the amount of
    $10,000. Costs figures are all-inclusive.

Released:
P.L. April 18,
    2019

P. Lauwers J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.