WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015,
    c.  13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: Abdulle (Re), 2021 ONCA 524

DATE: 20210721

DOCKET: C68952

Watt, Pardu and Trotter JJ.A.

IN THE MATTER OF: Abdi-Aziz F. Abdulle

AN APPEAL UNDER PART XX.1 OF THE
CODE

Abdi-Aziz F. Abdulle, in person

Michael Davies, as
amicus curiae

Natalya Odorico, for the respondent,
    Her Majesty the Queen

Marie-Pierre T. Pilon, for the
    respondent, Person in Charge of Brockville Mental Health Centre

Heard: June 30, 2021 by
    videoconference

On appeal from the disposition of the
    Ontario Review Board, dated December 8, 2020, with reasons dated December 23,
    2020.

REASONS
    FOR DECISION

[1]

Mr. Abdulle appeals from a disposition of the
    Ontario Review Board dated December 8, 2020, maintaining a detention order but
    permitting a transfer Mr. Adbulle requested to the Royal Ottawa Mental Health
    Centre.

[2]

The appellant submits that the Board erred in
    failing to grant him an absolute discharge. He indicates that, if granted an
    absolute discharge, he will continue to take the long-acting medication which
    has been prescribed for him.

[3]

Amicus
advances
    three arguments.

1.

The Board erred in giving any weight to reasons
    for decision of this court on a previous appeal stating that a previous Board
    panels finding on the same issue were both logical and reasonable on the
    record before it.

2.

The Board erred in giving any weight to the
    perceived vigour with which the appellants counsel argued for an absolute
    discharge.

3.

He submits that the conclusion that the appellant
    constituted a significant threat to public safety was unreasonable. The Board
    did not engage in a robust analysis of the factors favoring the appellant and
    its reasons are conclusory.

A.

Background

The index offences

[4]

The appellants detention relates to two sets of
    index offences. The first set occurred on April 8, 2008, when the appellant
    attended at the residence of his brother and sister-in-law, threatened to kill
    his brother, and kicked the front door off its hinges. On November 25, 2008,
    the appellant was found not criminally responsible on account of mental
    disorder (NCR) on charges of uttering threats to cause death or bodily harm,
    mischief, and failing to comply with an undertaking.

[5]

On September 7, 2011, while the appellant was in
    the community after leaving Montfort Hospital, he committed the second set of
    index offences. The appellant, wielding a screwdriver, acted aggressively and
    chased a stranger. Later, armed with a rock, the appellant continued to chase the
    stranger, this time threatening to kill him. Also, before police brought him
    into custody, the appellant exposed himself to three women. On October 21,
    2011, the appellant was found NCR on charges of assault with a weapon, uttering
    threats to cause death or bodily harm, committing an indecent act, and failing
    to comply with a recognizance: see
Abdulle (Re)
, 2020 ONCA 698.

The appellants criminal record

[6]

The appellant has a criminal record including
    convictions from 2003 to 2012. It includes convictions for assault, assaulting
    a police officer, possession of weapons (including a firearm), robbery, drug
    possession and trafficking. Two convictions  drug trafficking and assault  were
    entered while the appellant was living in the community, subject to the jurisdiction
    of the Board.

The appellants psychiatric history

[7]

The appellant was first admitted to a
    psychiatric hospital in 1997, when he was eighteen, for a stay of a months
    duration. Between 2000 and 2006, he was hospitalized on multiple occasions but consistently
    failed to take medication prescribed for him when released. He has a
    significant history of daily alcohol and drug abuse since he was fifteen years
    old.

[8]

His current diagnoses are the following:

·

Bipolar Disorder  Type 1, currently euthymic;

·

Polysubstance Use Disorder;

·

Post-Traumatic Stress Disorder;

·

Antisocial Personality Disorder; and,

·

Somatic Symptom Disorder.

The appellants progress in the last reporting
    period

[9]

The appellant has not made any significant
    progress in the last reporting period. The hospital report indicates that he
    has had repeated relapses, characterized by hypomania, lability of mood,
    bizarre behaviour and disinhibition. Part of the reason for the standstill was
    the appellants refusal to stop using cannabis, and his refusal to take mood
    stabilizing medication because he fears the side effects associated with it. He
    also refuses to be considered for community housing in the Brockville area and
    refuses to discuss community discharge planning, stating repeatedly that he
    will continue to appeal until he gets an absolute discharge.

[10]

The hospital report before the Board, authored
    by Dr. Sanjiv Gulati, concluded that the appellant remained a significant threat
    to the safety of the public:

Given Mr. Abdulle's long history of mental
    illness, history of violence, ongoing periods of instability, indulgence in
    substance misuse and cyclical relapses, he remains a significant threat to the
    safety of the public at the present time. In my opinion, if Mr. Abdulle was to
    be out in the community and was going through a cyclical relapse such as been
    evidenced on the unit, he would pose a threat to the safety of the public
    through his bizarre, disinhibited and erratic behaviour. His behaviour during
    times of relapse can significantly be perceived as threatening towards others
    around him and it is only through the expertise and skill set of staff, he has
    been redirected and no aggressive/violent incidents have occurred. It is also
    to be noted that his behaviour goes over and above mere annoyance and can cause
    significant distress in people around him who are not familiar with his illness
    as they can perceive his gestures to be threatening.

It remains the opinion of the team that if Mr.
    Abdulle was in the community on a conditional/absolute discharge without
    adequate supervision, he will constitute a significant threat to the safety of
    the public. His current disposition is the least restrictive, least onerous,
    necessary and most appropriate way of managing risk.

The team is not opposed to Mr. Abdulle being
    discharged from the hospital on a detention order. A discharge on such an order
    would allow the team to adequately monitor him, screen for illicit substance
    misuse, timely intervene and put actions into place to mitigate any risks that
    he poses towards self and others. The team continues to look for supervised
    accommodation and has also made some suggestions to him such as the FITT House
    or consider other placements in the community, but Mr. Abdulle remains
    reluctant to accept any of these. Therefore, it appears that we are at an
    impasse but it does not necessarily equate to a therapeutic impasse where
    transfer to another team may resolve the impasse.

It is the insight
    on Mr. Abdulle's part that needs to be worked on and we will continue to
    endeavor to work on this in the coming year in the hope that he will engage and
    be willing to abstain from illicit substances and comply with a mood stabilizer
    thus achieve a period of stability, prior to being granted an absolute
    discharge.

[11]

At the hearing, Dr. Gulati testified that, if he
    were to receive an absolute discharge, the appellant would not comply with his
    medication regime and would quickly deteriorate. In a controlled setting his
    risk was moderate, but without Board oversight he would be at a high risk to
    the public within weeks.

[12]

The appellant had proposed to live with his
    brother near Ottawa, however the brother was sentenced in November 2016 to 3.5
    years in prison for serious fraud offences. The investigating social worker
    concluded that he could not support that residence as approved for the
    appellant, without extensive prior planning. Dr. Gulati would want a successful
    trial of community living in approved accommodation before he could recommend
    an absolute discharge. A previous discharge in 2017 into highly structured,
    approved accommodation in the community broke down after only four days,
    following cannabis use by the appellant and decompensation.

The Boards decision

[13]

The Board considered the arguments made on
    behalf of the appellant at para. 38 of its reasons:

Mr. Davies
    submitted that Mr. Abdulle no longer meets the significant risk threshold. He
    pointed to the fact that the index offences occurred in 2008 and 2011, and that
    there had been a significant period of time with no evidence of convictions. He
    submitted that there is no empirical evidence that Mr. Abdulles continued
    cannabis use contributes to his periodic relapses, and he emphasized that there
    have been no physically violent incidents during the periods when Mr. Abdulle
    has been hospitalized.

[14]

The Boards reasons for concluding that the
    appellant remained a significant threat are contained at paras. 41-44 of its
    reasons:

There can be no doubt on the evidence before
    us that Mr. Abdulle remains a significant threat to public safety. The
    uncontradicted evidence is that the risk factors for Mr. Abdulle remain the
    same as at last years annual hearing. At last years hearing, the Board heard
    evidence that Mr. Abdulle was making encouraging progress and that his relapses
    had become less frequent. At this years hearing, the evidence was that no
    progress had been made, and that the Hospital and Mr. Abdulle had reached an
    impasse, albeit it was not acknowledged that the impasse was a treatment
    impasse.

Yet, based on the evidence before the Board at
    last years hearing, and the Boards explanation for its conclusion, the Court
    of Appeal stated at para. 15 of its decision, released on November 4, 2020,
    that the Boards findings that Mr. Abdulle remained a significant threat were
    both logical and reasonable on the record before it.

Given the less encouraging evidence at this
    years hearing, it is understandable that Mr. Davies did not vigorously press
    for an Absolute Discharge.

Based on the
    evidence, the Board had no hesitation in concluding that Mr. Abdulle continues
    to pose a significant threat to the safety of the public. The evidence
    persuades us that without Board oversight, Mr. Abdulle would stop taking his
    prescribed medications. We are persuaded that within a short time, he would
    relapse, thereby leading to his engaging in criminal conduct that would put
    members of the public at significant risk of psychological or physical, harm.

B.

Analysis

(1)

Did the Board err by referring to a previous
    decision of this Court?

[15]

The appellant argues that the Board erred in
    citing a decision of this court which referred to previous Board findings that
    the appellant constituted a significant threat as both logical and reasonable
    on the record before it. Since that finding, the appellants condition had
    worsened.

[16]

This court reviews Board findings according to
    the norm of reasonableness. This requires an assessment of whether the Boards
    reasons for the disposition are justified, transparent, and intelligible and
    whether the disposition itself falls within the range of possible acceptable outcomes:
Canada (Minister of Citizenship and Immigration) v. Vavilov
,

2019 SCC 65,

441 D.L.R. (4th) 1,
at paras. 84-86. A reasonable decision
    is one where the Boards reasoning process and the outcome reflects an
    internally coherent and rational chain of analysis  that is justified in
    relation to the facts and the law:
Nguyen (Re)
, 2020 ONCA 247, 387
    C.C.C. (3d) 13, at para. 28, quoting
Vavilov
, at paras. 83 and 85;
Sim
    (Re)
,
2020 ONCA 563, at
    paras. 67-68.

[17]

A previous decision of this court dealing with
    the appellants history with the Board is part of the jurisprudential history
    of this case, and the Board did not err by referring to that case. It would err,
    however, if it considered that the range of reasonable decisions open to it was
constrained
by the previous appellate decision. The Board was obliged
    to come to its own decision as to how best balance the competing objectives of
    s. 672.54 of the
Criminal Code
.

[18]

We are not persuaded that the Board failed to
    perform its own independent analysis in this case. The Board reviewed a
    significant body of evidence post-dating this courts decision. The Boards
    reference to this courts decision was simply further justification for the
    Boards conclusion that, given the less encouraging evidence at this years
    hearing, there was no basis to grant an absolute discharge.

(2)

Did the Board err in referring to the vigour of
    the appellants counsels submissions?

[19]

The Board made a passing reference to the force
    of counsels submissions: [g]iven the less encouraging evidence at this years
    hearing, it is understandable that Mr. Davies did not vigorously press for an
    Absolute Discharge.

[20]

On appeal, Mr. Davies, now acting as
amicus curiae
,
    submits that the Board erred in referring to this. He says the degree of vigour
    of counsels submissions is an unmeasurable quality. He submits that, in some
    contexts, such observations are not helpful as they may impair the relationship
    between counsel and client. Moreover, the Board cannot default to positions
    taken by the parties. It is an inquisitorial body that is obliged to search out
    evidence when necessary and come to its own conclusions: see
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    paras. 54-55.

[21]

A reasonable decision-making process is driven
    by the merits of the case, i.e. the facts and the law before the court. The
    style of advocacy is not a governing factor.

[22]

That said, counsel should expect and would welcome
    the notion that their advocacy would have an impact on a judges reasoning
    process. A judge will almost invariably have thoughts about counsels advocacy
    although those thoughts will not often be expressed. Sometimes arguments made
    by the most eloquent and able lawyers are not accepted by a court. At other
    times, less able lawyers find their arguments win the day, despite deficiencies
    in their own performance. As
amicus
suggests, clients do not always
    understand this. For example, the best advocates do not yell at the court by
    making all their arguments uniformly loud; in some circumstances,
    understatement is more persuasive and helpful to the client. In any event, the
    outcome of a proceeding should not be taken as an endorsement or repudiation of
    a lawyers approach in a particular case.

[23]

Here, the Board did not default to any perceived
    message conveyed by the manner in which counsel made his submissions. The
    Boards reasons make clear that it came to its own decision on the merits.

(3)

Was the Boards decision that the appellant was
    a significant threat reasonable?

[24]

An absolute discharge is warranted where the NCR
    accused poses no significant threat to the safety of the public. There is no
    presumption that an NCR accused is dangerous. A significant threat must be
    proven and, as
amicus
points out in his factum:

A significant
    threat to the safety of the public means a real risk of physical or
    psychological harm to members of the public that is serious in the sense of
    going beyond the merely trivial or annoying. The conduct that gives rise to the
    harm must be criminal in nature. The threat must be significant in at least
    two senses: first, there must be a real risk that the actions leading to harm
    will actually occur; and second, the potential or contemplated harm must be
    serious. [Citing
Winko
, at paras. 62 and 57.]

[25]

The hospital report filed in evidence mirrored
    the elements of this test, both the likelihood of the behaviours and the degree
    of harm that would result. I repeat the relevant observations for ease of
    reference:

In my opinion, if
    Mr. Abdulle was to be out in the community and was going through a cyclical
    relapse such as been evidenced on the unit, he would pose a threat to the
    safety of the public through his bizarre, disinhibited and erratic behaviour.
    His behaviour during times of relapse can significantly be perceived as
    threatening towards others around him and it is only through the expertise and
    skill set of staff, he has been redirected and no aggressive/violent incidents
    have occurred. It is also to be noted that his behaviour goes over and above
    mere annoyance and can cause significant distress in people around him who are
    not familiar with his illness as they can perceive his gestures to be
    threatening.

[26]

Dr. Gulati reiterated that the appellant would
    quickly deteriorate if he received an absolute discharge and would constitute a
    danger to the public within weeks. He opined that the appellant would likely
    commit offences similar to the index offences under those circumstances.

[27]

The Board was entitled to accept this evidence.
    It referred to and considered the arguments made by the appellant, the length
    of time since the index offences with no further convictions, the uncertainty
    as to the effects of the continued use of cannabis, and the absence of any
    violence during periods when the appellant has been hospitalized. Nonetheless,
    it was persuaded that without Board oversight Mr. Abdulle would stop taking his
    prescribed medications, relapse, and engage in criminal conduct that would put
    members of the public at significant risk of psychological or physical harm.
    There can be no doubt that the index offences were of a nature to cause harm
    beyond the merely trivial or annoying.

[28]

Amicus
submits
    that the Board gave no consideration to the fact that the appellant had been
    reasonably consistent in taking injected antipsychotic medication, had
    completed all programs offered at Ottawa and Brockville, and had a place to
    stay with his brother in Ottawa. However, none of these factors undermine the
    essential conclusion accepted by the Board as to significant threat.

[29]

The Boards reasoning, though brief, reflects an
    internally coherent and rational chain of analysis that is justified in
    relation to the facts and the law and there is no basis to intervene.

C.

Disposition

[30]

For these reasons, the appeal is dismissed.

David
    Watt J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Flood v. Boutette, 2021 ONCA 515

DATE: 20210719

DOCKET: C67571 & C67653

Pepall, Roberts and Thorburn JJ.A.

BETWEEN

Kevin Flood and Anne Marie
    Laniak

Plaintiffs (Appellants)

and

Shawn Boutette, Richard Marr, Lee Tome,

Windsor
    Fire and Rescue Services Department,

Mario Sonego and the Corporation of the City of Windsor

Defendants (Respondents)

AND BETWEEN

Joseph Papic and Susan Papic

Plaintiffs (Appellants)

and

Shawn Boutette, Lee Tome,

Windsor
    Fire and Rescue Services Department,

Mario
    Sonego, Marc Mantha and

the Corporation of the City of Windsor

Defendants (Respondents)

Asha James and Jeremy Greenberg, for the appellants, Kevin Flood and
    Anne Marie Laniak (C67571)

Steven Pickard, for the appellants, Joseph Papic and Susan Papic
    (C67653)

Sheila C.
    Handler, for the respondents (C67571 & C67653)

Heard: May 25, 2021 by videoconference

On appeal from the judgments of Justice Renee
    M. Pomerance of the Superior Court of Justice, dated October 1, 2019, with
    reasons reported at 2019 ONSC 5633, 58 C.C.L.T. (4th) 261.

Thorburn J.A.:

OVERVIEW

[1]

In Ontario, single-family dwellings require
    fewer safety protections than boarding, lodging, and rooming houses (collectively,
    lodging houses) because single-family dwellings operate as a single unit
    whereas the occupants of lodging houses are more autonomous. Owners of single-family
    dwellings used as lodging houses are therefore required to retrofit their premises
    in accordance with the regulatory requirements in the
Fire Code
, O.
    Reg. 213/07.

[2]

The appellants Kevin Flood and Anne Marie Laniak
    (the Flood appellants), and Joseph Papic and Susan Papic (the Papic
    appellants), rented single-family dwellings to students in Windsor, Ontario. Mr.
    Flood and Mr. Papic were charged with
Fire Code
violations that apply
    to lodging houses following investigations by Shawn Boutette, a city fire-prevention
    officer.

[3]

The central issue in Mr. Floods three-day trial
    was whether the properties were lodging houses within the meaning of the
Fire
    Code
. Justice of the Peace Renaud determined that the Flood property was
    not a lodging house for the purpose of the retrofit requirement in s. 9.3 of
    the
Fire Code
. Mr. Flood was therefore acquitted on a directed verdict.
    Shortly thereafter, the charges against Mr. Papic were withdrawn.

[4]

The appellants then brought claims against the
    respondents, Shawn Boutette, Richard Marr, Lee Tome, Windsor Fire and Rescue
    Services Department, Mario Sonego, Marc Mantha and the Corporation of the City
    of Windsor (the City), seeking damages for claims that include negligent
    investigation, malicious prosecution, violation of the
Charter
,

and
    bad faith.

[5]

The claims against Richard Marr, Mario Sonego,
    and Marc Mantha were withdrawn on the eve of trial. The trial judge dismissed
    the remaining claims holding that (i) the respondents had reasonable grounds
[1]
to believe the properties were
    lodging houses prior to laying charges under the
Fire Code
, (ii) the
    investigator did not conduct a negligent investigation, and (iii) neither the
    investigation nor the laying of charges was motivated by malice.

[6]

The appellants submit that the claims should not
    have been dismissed as (i) the investigator knew or ought to have known the
    buildings were not lodging houses and there were therefore no reasonable or
    probable grounds to lay the charges, (ii) the investigator conducted a
    negligent investigation, and (iii) the respondents acted in bad faith as their
    motive was not public safety, but to reduce student housing in Windsor. The
    appellants further claim that the usual deference owed to a trial judge is not
    owed in this case as the judge who heard the evidence passed away and therefore
    was not the judge who rendered the decision.

[7]

The Papic appellants also submit that the trial
    judge ignored their claim of undue delay and abuse of authority in relation to the
    development of a property and seek to remit that claim to the Superior Court
    for determination.

[8]

For the reasons that follow, I would dismiss the
    appeals.

BACKGROUND DISCUSSION

[9]

The appellants are residential landlords who own
    properties around the University of Windsor.

[10]

Mr. Flood is a partner in the Flood Rental Group.
    For many years, Flood has developed or renovated properties for the primary
    purpose of renting those properties to students attending university. The Papics
    own a duplex, also near the university, which they too rented as student
    housing.

[11]

In June 2006, the mayor and City Council
    received a report from the respondent Mario Sonego (the Sonego Report), then
    the City of Windsors Chief Building Official. In his Report, Mr. Sonego
    recommended that the City Council endorse a proposed strategy for pursuing
    fire safety with respect to multiple tenant residences. In the background
    section, he stated:

As Council will recall, multiple tenant
    occupancy of single family or duplex residences, particularly around the
    University of Windsor, has been an issue since the double cohort year of
    approximately 2003.

Administration has had difficulty, as have
    other municipalities, with attempting to convince the Courts or the Justice of
    the Peace system that homes are not operating as single family units but are
    operating as lodging homes.

[12]

The Report then discussed relevant
    jurisprudence, namely
Good v. Waterloo (City)
(2013)
, 67 O.R. (3d) 89 (S.C.) (
Good
    (ONSC)
),

affd 72 O.R. (3d) 719 (C.A.) (

Good (ONCA)

), which I will discuss in greater detail below, before
    proposing that:

One possible enforcement strategy is to
    proceed through the
Fire Code
to confirm compliance and the safety of
    occupants. This strategy was discussed with the Off Campus Issues Committee,
    whose membership has a representative from the West Windsor Homeowners
    Association. They were in agreement with the benefits if successful.

[13]

The appellants and respondents disagree on the purpose
    of writing this Report and the subsequent retrofit enforcement strategy adopted
    by the City.

[14]

The appellants claim the enforcement strategy following
    the Sonego Report, which led to the charges against them, was not motivated by
    a
bona fide
concern for the safety of the public, but rather by a
    desire to restrict student housing to appease other disgruntled homeowners. The
    respondents claim the enforcement strategy was based on a concern for fire
    safety.

[15]

I will begin by outlining the origins of the
    retrofit enforcement strategy, before turning to the decision by Mr. Boutette
    to investigate and lay charges against the appellants in 2007.

(1)

The Origins of the Retrofit Enforcement Strategy

[16]

According to Mr. Sonego, the City became concerned
    about student tenancies in 2003. That year, a double cohort of students would
    graduate from high school, placing pressure on limited student accommodation. The
    City was concerned that students would pick the cheapest accommodation, which
    might not always be the safest.

[17]

By 2004, the Citys
Building
    & Development and Bylaw Enforcement & Licensing departments
had unsuccessfully pursued

landlords
    renting premises
the City felt were illegal lodging
    homes through bylaw enforcement. The City determined that the next step would
    be to proceed under the
Fire Code
to order the retrofit of homes
    lodging more than three persons, so as to comply with fire, safety, and
    building standards. This strategy was not implemented in 2004.

[18]

On January 25, 2006, there was a fire at a
    student rental property in which students were seriously injured, bringing the problem
    of fire safety in student housing to the forefront. In March 2006, Mr. Sonego attended
    a meeting of the Off‑Campus Housing Committee at which he indicated that he
    would prepare a report for City Council. The report was delivered in June 2006.

[19]

Various city departments approved the retrofit
    enforcement strategy proposed in the Sonego Report, which recommended that the
Fire Department look at a few cases where they suspected lodging
    houses were being operated in an unsafe manner.

[20]

Based on the above, the trial judge accepted
    that it is open to inference that the underlying motivation was rooted in
    safety concerns rather than a desire to appease homeowners in the university
    district. She held however that, even if it was rooted in a desire to appease
    homeowners in the university district, this would not have altered Mr.
    Boutettes motive as he did not know of any such purported strategy until he
    had already begun the investigation.

(2)

The
Fire Code
Provision

[21]

One of the stated purposes of the
Fire Code
,

as set out in s. 2.2
,
is to
    ensure that persons are not exposed to an unacceptable risk of injury due to
    fire.

[22]

Section 9.3 of the
Fire Code
deals with
    the retrofit requirements for lodging houses. Subsection 9.3.1.1 reads as
    follows:

(1) This Section applies to boarding houses,
    lodging houses, rooming houses and private rest homes in which residents do not
    require care or treatment because of age, mental or physical limitations, where

(a) the building height does not
    exceed 3 storeys  and the building area does not exceed 600 m
2
,

(b) lodging is provided for more
    than four persons          in return for remuneration or the provision of   services
    or both, and

(c) lodging rooms do not have both bathrooms
    and           kitchen facilities for the exclusive use of individual           occupants.
[2]
[Emphasis omitted.]

[23]

The terms boarding houses, lodging houses,
    rooming houses are not defined in the
Fire Code
. However, the Ontario
Building Code
, O. Reg. 332/12, s. 1.4.1.2 defines these terms to
    mean a building that meets substantially the same criteria set out in s.
    9.3.1.1.(1)(a)-(c) of the
Fire Code
.
[3]

[24]

Buildings falling within the definition of s.
    9.3.1.1 must comply with a number of specific safety requirements. For example,
    portable fire extinguishers must be located on each floor, exit signs must be
    installed, and walls that separate bedrooms must meet a specified fire-resistance
    rating.

(3)

The Decision in
Good
    v. Waterloo

[25]

As noted above, the City was aware that certain
    jurisprudence might foreclose the possibility of student housing being
    considered lodging houses. In his Report, Mr.
Sonego noted that:

The difficulty of the matter lies in the
    burden of proof that persons unrelated to each other live in a single unit
    dwelling not operating as a single housekeeping unit, but rather as a lodging
    home. To illustrate the difficulties of this enforcement, attached is a copy of
    the Superior Court Case of
Good v. the City of Waterloo
.

[26]

In
Good (ONSC)
, Gordon J. found that the
    home in that case, that was occupied by students, operated as a single housekeeping
    unit and was therefore exempt from the requirement to be licensed as a dwelling
    house under a City of Waterloo bylaw.

[27]

This court affirmed his finding. Under the
Municipal
    Act
in force at the time, and the Waterloo bylaw, a lodging house was
    defined as:

a nursing home and any house or other building
    or portion thereof in which persons are harboured, received or lodged for hire,
    but does not include a hotel, hospital, nursing home, home for the young or the
    aged or institution if the hotel, hospital, home or institution is licensed,
    approved or supervised under any other general or special Act.

[28]

The same bylaw exempted residential units from
    the requirement to obtain a license where the unit is used as a single
    housekeeping unit, which includes a unit in which no occupant has exclusive
    possession of any part of the unit, among other things.

[29]

Gordon J. held, in
Good (ONSC)
at
    paras. 23-24, that:

[T]he distinguishing characteristic as between
    a lodging house and a residential unit focuses on the control of the premises.
    Control, in a lodging house, is by the owner and the occupants on an individual
    basis, whereas in a residential unit it is by the group. Accordingly, for a
    residential unit there must be evidence of collective decision-making regarding
    the use of the premises.

[30]

After articulating a list of factors present in
    that case, Gordon J. concluded that the student tenants lived together
    collectively and that the relevant premises were being used as a residential
    unit, not a lodging house.

[31]

This result was upheld on appeal to this court,
    which found collective decision-making sufficient to create a single unit for
    housekeeping purposes to be an appropriate criterion to determine whether
    the premises in question were single housekeeping units: see
Good

(ONCA)
,
    at para. 3.

(4)

Mr. Boutettes Investigation

[32]

Mr. Boutette was a fire prevention officer with
    the Windsor Fire and Rescue Services and a qualified fire inspector. One of his
    tasks was to investigate alleged
Fire Code
infractions.
Mr. Boutette had the power to enter into any building in
    the City of Windsor to inspect property to ensure fire safety pursuant to the
Fire
    Protection and Prevention Act
,
1997
, S.O. 1997, c. 4
.

[33]

Mr. Boutette knew that boarding houses, lodging
    houses, and rooming houses were not defined in the
Fire Code
but testified
    that he was trained to use the definitions found in the
Building Code
where the
Fire Code
did not define a term. Lodging houses are defined
    in the
Building Code
as buildings that have a building height not
    exceeding 3 storeys and a building area not exceeding 600 m
2
, in
    which lodging is provided for more than four people in return for remuneration
    or for the provision of services or for both, and in which the lodging rooms do
    not have bathrooms and kitchen facilities for the exclusive use of individual
    occupants. This wording is, as noted above, similar to the wording of s. 9.3.1.1
    of the
Fire Code
.

Inspection of the Appellants Properties

[34]

Between 2006 and 2008, the Fire Prevention
    Division received several complaints from neighbours and previous tenants about
    student rental properties owned by Mr. Flood and the Papics. Mr. Boutette
    attended at each of the properties.

[35]

The first property was 659 Rosedale Avenue. Mr.
    Boutette said that when he began his investigation, he did not know the
    property was owned by Mr. Flood.

[36]

In October 2006, Mr. Boutette visited the
    property and interviewed three of the seven tenants. He noted that there were
    locks on some of the bedroom doors and he obtained a copy of some of the leases
    and sublet agreements. The property had been rented to two people who sublet
    their tenancy to other students. The sublets were not all entered into at the
    same time. Different tenants were in charge of different household tasks. He
    also noted a lack of interconnected smoke alarms.

[37]

Mr. Boutette concluded that the property was
    being used as a lodging house, as it was less than three stories and rented for
    remuneration to more than four people who shared kitchen and washroom
    facilities. He contacted Mr. Flood and told him about the
Fire Code
,
    s. 9.3 requirements. Mr. Flood claimed that the property was not a boarding,
    lodging, or rooming house and that the provisions in the
Fire Code
therefore did not apply. Mr. Boutette said he would look into things further.

[38]

In February 2007, Mr. Boutette met with Mr.
    Flood and several other landlords. The landlords denied that their properties
    were boarding, lodging, or rooming houses. Mr. Boutette recalled that the
Good
cases were discussed at this meeting, as was another case which
    distinguished
Good.

[39]

Mr. Boutettes second visit to 659 Rosedale
    Avenue took place in March 2007. He noted labelled food in the refrigerator and
    the presence of certain locks on the doors. He said that, at this time, he
    again concluded that the building was being used as a lodging house within the
    meaning of the
Fire Code
because the building was (i) less than three storeys
    and 600 m
2
, (ii) rented for remuneration or services to more than
    four people; and (iii) the tenants shared washroom and kitchen facilities. While
    certain changes had been made, he found that the property did not comply with
    the
Fire Code
requirements
.
Charges were laid on March 14,
    2007.

[40]

The second property was a duplex at 341 and 343
    Askin Avenue, owned by the Papic appellants. In September of 2007, following a
    complaint by a previous occupant, Mr. Boutette visited the property with another
    inspector from the Citys building department. They discovered that the Papic tenants
    were strangers when they moved in, paid rent individually

to the
    landlord, there were locks on the doors of the tenants rooms, and each was
    responsible for their own meals.

[41]

Mr. Boutette concluded that both Askin properties
    were boarding, rooming, or lodging houses and decided to proceed with charges.
    In November 2007, charges were laid against Mr. Papic.

[42]

The third set of properties were three
    residences on Bridge Avenue, owned by Mr. Flood. In January 2008, Mr. Boutette
    attended the properties with two junior inspectors. After speaking with the
    tenants, he learned that the properties were being used as student housing and
    that Mr. Flood was the landlord. He discovered that each tenant gave cheques
    for their own rent and paid it to another tenant who paid Mr. Flood; they came
    from various areas across Ontario; absent permission, tenants rooms were
    off-limits to others; and they each cooked their own meals and bought their own
    food.

[43]

Mr. Boutette concluded that, using the same
    criteria he used in respect of the Flood properties, the Bridge Avenue
    properties were also boarding, lodging, or rooming houses.

[44]

A few days later, instead of laying charges, Mr.
    Boutette proceeded by way of an inspection order under the
Fire Protection
    and Prevention Act
, 1997,
    S.O. 1997, c. 4, s. 21.

Mr. Boutettes Due Diligence Process

[45]

During this period, Mr. Boutette reached out to
    several individuals who worked in fire prevention. They provided guidance,
    which included cautioning him against an unsuccessful prosecution of s. 9.3 of
    the
Fire Code
on student housing; informing him of a successful
    conviction under s. 9.3 for a single-family home found to be operating as a lodging
    house (see
City of Ottawa v. Bentolila
, 2006 ONCJ 541); and advising
    him that student housing should be evaluated against indicators of a single
    housekeeping unit before enforcing the bylaw, and that
Good
contained
    criteria to distinguish between a single housekeeping unit and a lodging house.

[46]

Bruce Weaver, an official at the Fire Marshals
    office, provided criteria to determine whether a building was occupied as a
    housekeeping unit and dwelling unit. These criteria included, among other
    things, the duration of the tenancies, the manner in which rent and utilities are
    paid, whether the occupants exercise collective decision-making and lived
    communally, the number of residents, whether rooms are assigned, and whether bedrooms
    are locked. Mr. Boutette was not told how to apply these criteria.

[47]

Mr. Boutette also met with a Crown Attorney. Mr.
    Boutette shared the information he had received with the Crown. He did not relay
    the specific information from Mr. Weaver though the factors to be considered
    are taken from both the
Good
and
Bentolila
cases. He said that,
    as a result of the meeting, he understood that whether the
Fire Code
applied would be a judges decision. Mr. Boutette sought to meet with the
    Crown Attorney and the appellants, but this request was denied. When he
    endeavoured to speak with the tenants again, he was told by Mr. Flood that they
    did not wish to speak with him.

(5)

The Prosecutions

[48]

Mr. Floods trial for the charges relating
    to 659 Rosedale Avenue took place in November 2008. Mr. Flood was charged under
    s. 28(1)(c) of the
Fire Protection and Prevention Act
. Mr. Flood
    brought a motion for a directed verdict.

[49]

Justice of the Peace Renaud granted the
    motion with respect to four of the five charges. She rejected the use of the
Building
    Code
definition of lodging house. She held that:

The prosecution witnesses seemed to be under
    the impression or feel that the term lodging house is defined by the criteria
    in section 9.3 [of the
Fire Code
] and more specifically in subsection
    9.3.1.1. and that, so long as there is proof that the building has fewer than
    three stories, the building area does not exceed 600 square meters, that
    lodging is provided for more than three persons for remuneration and that
    lodging rooms are not individually equipped with bathroom or kitchen, then it
    follows that the building is a lodging house. This is an erroneous
    interpretation.

The three criteria relied upon by the
    prosecution witnesses and prosecutor simply limit which boarding, lodging and rooming
    houses are covered under section 9.3. A plain reading reveals this to be the
    case, but this is further supported by the fact that the
Code
itself
    contemplates that some boarding, lodging and rooming houses will not be covered
    under section 9.3.

Therefore, the issue to be resolved is whether
    or not 659 Rosedale was a lodging house.

[50]

Justice of the Peace Renaud went on to consider
    whether the premise was a lodging house based on the dictionary definition of
    that term. She concluded that a lodging house or rooming house is a house that
    rents out rooms to individuals on an individual basis where the landlord
    controls who occupies each individual room, collects rent separately for each
    individual room and where, when a room goes vacant, he ceases to collect money
    for that room and where he has the right to replace the tenant for that room. She
    held that there was no evidence that this was the case with respect to 659
    Rosedale Avenue because the property was rented to a group of friends who
    pooled their resources to rent the building. Following this ruling, she dismissed
    the final charge at the Crowns request.

[51]

The Papic charges, relating to the duplex on
    Askin Avenue, were withdrawn and did not proceed to trial.

[52]

The appellants then commenced their action
    against the respondents for negligent investigation, malicious prosecution, and
    violations of the
Charter
, among other things.

THE TRIAL JUDGES DECISION

[53]

The appellants claimed Mr. Boutette knew or
    ought to have known their properties were not boarding, lodging, or rooming houses
    and there were no reasonable and probable grounds to lay the charges. They also
    claimed the respondents acted in bad faith by using the charges as a means to
    discourage landlords from renting to students.

[54]

The trial took place in 2017, over 31 days, before the late
    Justice Steven Rogin.
The central issue was whether it was
    reasonable for the investigator to believe the properties were boarding,
    lodging or rooming houses subject to the
Fire Code
.
Sadly,
    Rogin J. passed away before rendering a decision. On consent, Pomerance J.
    conducted a re-trial based on the trial record. She also heard the partys
    arguments concerning this courts decision in
Payne v. Mak
,
    2018 ONCA 622, 78 M.P.L.R. (5th) 179 (

Payne (ONCA)

), affg
2017 ONSC 243

(
Payne (ONSC)
), released after the trial submissions had
    concluded before Rogin J.

[55]

Pomerance J. concluded that, in her words:

1.
The investigator did
    owe a duty of care to the plaintiffs.

2. The standard of care required that the
    investigator have reasonable grounds to lay the charges in question.

3. The investigator did have reasonable
    grounds to believe that the properties were boarding, lodging or rooming houses
    and that they were
noncompliant with the
Fire Code
:

a.

On the existing law, it was open to the
    investigator to believe
Good v. Waterloo
did not govern
Fire Code
investigations;

b.

If
Good v. Waterloo
did apply, the criteria in that case  applicable to a judicial
    determination  were of uncertain application at the charging stage;

c.

The standard of reasonable grounds did not
    require the investigator to definitively conclude that the properties were
    boarding, lodging or rooming houses; only that they could reasonably be found
    to be boarding, lodging or rooming houses;

d.

In any event, the investigator did advert to the
    criteria in
Good v. Waterloo
, gathering information for purposes of trial.

4. If
Boutette
did not have reasonable grounds, he nonetheless acted reasonably in
    the investigation, by seeking advice and direction from various individuals and
    entities, including the Crown Attorney, before he laid charges. An error in the
    interpretation of a legal standard did not, in this case, result in breach of
    the duty of care.

5. The investigator did not act with malice or
    oblique motive. While there was evidence to indicate that the City of Windsor
    had concerns
about
an influx of
    student housing, the investigator was not privy to these discussions. I accept
    his evidence that he was acting in the interests of public safety, in response
    to specific complaints.

[56]

There was therefore no negligent investigation,
    malicious prosecution, infringement of the
Charter
,

or abuse
    of process. She dismissed all of the appellants claims.

ANALYSIS OF THE LAW AND CONCLUSION

[57]

Normally, a trial judges factual findings are
    reviewable on a palpable and overriding error standard and are entitled to
    deference. Whether those facts are sufficient in law to constitute reasonable and
    probable grounds is reviewable on a correctness standard:
Tremblay v. Ottawa (Police Services Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras. 43-45, citing
R. v. Shepherd
, 2009 SCC 35, [2009] 2
    S.C.R. 527, at para.
20,
R. v.
    Anang
, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para.
13;
Payne (ONCA)
, para. 30.

[58]

The Flood appellants urge this court to apply a
    less deferential standard of review to the trial judges factual findings as
    this court is no better placed than Pomerance J. to assess the original trial
    record as she was not present when the evidence was adduced.

[59]

This submission runs contrary to the settled
    principle that appellate deference to a trial judges factual findings does not
    change simply because the trial record is in writing. As this court explained in
FL Receivables Trust 2002-A (Administrator of) v.
    Cobrand Foods Ltd.,
2007 ONCA 425, 85 O.R. (3d)
    561, at para. 46:

The principle of appellate deference to a
    trial judge's fact-finding and inference-drawing applies even when the entire
    trial record is in writing. That is so because the principle of deference is
    grounded in more than a trial judge's ability to see and hear the witnesses.
    Deference recognizes that even on a written record, the trial judge lives
    through the trial while a court of appeal reviews the record only through the
    lens of appellate review. Deference also preserves the integrity of the trial
    process, maintains the confidence of litigants in that process, reduces the
    number and length of appeals and therefore, the cost of litigation, and
    appropriately presumes that trial judges are just as competent as appellate
    judges to resolve disputes justly.

[60]

In
IFP Technologies
    (Canada) Inc. v. EnCana Midstream and Marketing
,
    2017 ABCA 157, 53 Alta. L.R. (6th) 96, at paras. 66-77, leave to appeal
    refused, [2017] S.C.C.A. No. 303, the Alberta Court of Appeal considered the
    standard of review applicable in similar circumstances. The trial judge passed
    away before rendering a decision and, on consent, a new judge rendered a
    decision on a written record. On appeal, the court found that the usual
    standard of appellate review governs. As Fraser C.J. explained, appellate
    review is not intended to be a retrial, duplicating the trial judges efforts. The
    principal function of the appellate courts is to ensure consistency in the law,
    not correctness of factual findings in particular cases. Even when they do not
    hear evidence in person, trial judges have expertise in weighing evidence and
    navigating complex records. Appellate courts, on the other hand, must be
    mindful that a consistent standard of review helps maintain the effectiveness
    of appellate review for all litigants in the justice system.

[61]

In this case, the parties consented to a trial
    on an extensive written record, totalling over 4,000 pages of transcripts and
    5,000 pages of exhibits. The trial judge made factual findings and drew inferences
    after reviewing all of the evidence adduced. I see no basis on which to depart
    from the established standard of review which accords deference to the trial
    judges findings of fact absent palpable and overriding error. It is not this
    courts role to navigate the voluminous record afresh, nor would it be
    desirable for this court to do so.

[62]

For these reasons, the usual standard of
    appellate review applies.

(1)

The First Issue:
Whether
there were
reasonable
and probable grounds to lay charges

[63]

The appellants claim the trial judge erred in
    concluding that Mr. Boutette had reasonable and probable grounds to lay charges
    against them.

[64]

First, the Papic appellants argue that the trial
    judge failed to assess the charges against them independently of those laid
    against the Flood appellants.

[65]

The Papics have not explained how the
    investigation against them differed in any material respect from the
    investigation against Mr. Flood. In both cases, the argument is that Mr.
    Boutette conducted negligent investigations because he knew, or ought to have
    known that the residences in question were not boarding houses such that the
    requirements of s. 9.3 of the
Fire Code
were inapplicable and, thus,
    he lacked reasonable and probable grounds to lay charges. The trial judge was therefore
    entitled to consider this issue jointly in the circumstances.

[66]

Second, the appellants claim the trial judge
    applied the wrong standard of review: she determined that Mr. Boutette had a
    subjective belief that he had reasonable and probable grounds to charge them
    but failed to also address whether there were
objectively
reasonable and
    probable grounds to lay charges. Viewed objectively, they argue, a reasonable
    officer would determine that the properties consisted of shared living space
    and were not lodging houses.

[67]

In my view, for the reasons that follow, the
    trial judge correctly found that Mr. Boutette had objectively reasonable and
    probable grounds to lay the charges, notwithstanding that the charges
    ultimately failed, and the trial judge both considered and applied the correct
    test.

(a)

The duty of care in laying charges

[68]

Investigators such as Mr. Boutette owe a duty of
    care to those they investigate. In
Hill v. Hamilton-Wentworth (Regional
    Municipality) Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129, at
    para. 73, the Supreme Court held that the standard of care is the overarching
    standard of a reasonable police officer in similar circumstances, or in this
    case, a reasonable fire safety inspector in similar circumstances: see
Upchurch
    v. Oshawa (City)
, 2014 ONCA 425, 27
    M.P.L.R. (5th) 179, at para. 21. Writing for the majority of the Court, at
    para. 73, McLachlin C.J. held
that the duty is to exercise
    discretion in a manner that falls within the range of reasonable decisions
    available at the time the decision was made. She explained, further at para. 73,
    that in the analogous context of police investigations:

The standard is not perfection, or even the
    optimum, judged from the vantage of hindsight. It is that of a reasonable
    officer, judged in the circumstances prevailing at the time the decision was
    made  circumstances that may include urgency and deficiencies of information.
    The law of negligence does not require perfection of professionals; nor does it
    guarantee desired results. Rather, it accepts that police officers, like other
    professionals, may make minor errors or errors in judgment which cause
    unfortunate results, without breaching the standard of care. The law
    distinguishes between unreasonable mistakes breaching the standard of care and
    mere errors in judgment which any reasonable professional might have made and
    therefore, which do not breach the standard of care. [Internal citations
    omitted.]

[69]

In laying
charges
, the standard [of care]
    is informed by the legal requirement of
reasonable and probable grounds
    to believe the suspect is guilty; since the law requires such grounds, a police
    officer acting reasonably in the circumstances would insist on them:
Hill
,
    at para. 68.

[70]

An investigators personal belief that there are
    reasonable and probable grounds is not sufficient: a reasonable person standing
    in the shoes of the investigator must believe there are reasonable and probable
    grounds to believe that the person charged committed the offence: see
R. v. Storrey
, [1990] 1 S.C.R. 241, at
    p. 250;
Payne (ONCA)
,
    at para. 31.

[71]

In determining whether there are reasonable and
    probable grounds to lay charges, the investigator need not evaluate evidence
    to a legal standard or make legal judgments as [t]hat is the task of
    prosecutors, defence lawyers and judges:
495793 Ontario Ltd. (Central Auto
    Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 51; see
Hill
,
    at para. 50.

[72]

The standard of care to be applied by a
    professional generally requires expert evidence unless the standard is clear to
    an ordinary person or the conduct so outrageous that it is obvious the standard
    has not been met:
495793 Ontario Ltd. (Central Auto Parts)
, at paras. 53
    and 57;
Krawchuk v. Scherbak
,
2011
    ONCA 352,
106 O.R. (3d) 598
, at paras.
130-131
, leave
    to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319
.

(b)

The effect of a
withdrawal
of or an absence of conviction on the charges

[73]

The withdrawal of charges or the absence of a
    conviction does not lead to the conclusion that reasonable and probable grounds
    did not exist to lay charges. Reasonable and probable grounds may still exist
    where the information relied upon changes at a future date or otherwise turns
    out to be inaccurate. The requirement is that the information be reliable at
    the time the decision was made to lay charges:
Collis
    v. Toronto Police Services Board

(2007), 228
    O.A.C. 333
(Div. Ct.)
,
at para. 66
; see also

Wong v. Toronto Police
    Services Board
, 2009 CanLII 66385 (Ont. S.C)
, at
paras. 59-68;
Charlton v. St. Thomas
    Police Services Board
, 190 C.R.R. (2d) 103,
at para.
41
(Ont. S.C.)
;
Lawrence v. Peel Regional Police Force
,
2009 CanLII 19934 (Ont. S.C.), at para. 48
.

[74]

Payne (ONCA)
, released
    about a year and a half before the judgment under appeal, also concerned a fire
    at a rental property and the alleged violation of s. 9.3 of the
Fire Code
.
    Two owners of the home were charged with arson by negligence under s. 436 of
    the
Criminal Code
. The charges against one homeowner were dropped,
    while the second homeowner was discharged after the preliminary inquiry judge
    found an insufficiency of evidence. The homeowners then brought a claim for
    negligent investigation. The trial judge dismissed the claim, a result affirmed
    by this court. Strathy C.J.O. held, at para. 47, that the individual who
    charged the appellants:

had no obligation to determine whether the
    charge would succeed at trial. He was not required to evaluate the evidence to
    a legal standard or to make legal judgments. Nor was he required to exhaust all
    possible investigations, to interview all potential witnesses prior to arrest,
    to obtain the accuseds version of events or determine that the accused had no
    valid defence to the charge, before being able to establish reasonable and
    probable grounds. [Citations omitted.]

(c)

Mr. Boutette did not breach the standard of care
    in laying charges

[75]

In this case, boarding, lodging, and rooming
    houses are not defined in the
Fire Code
. Mr. Boutette believed that
    the appellants properties were lodging houses subject to the
Fire Code
regulations because they met the criteria set out in s. 9.3.1.1: (i) they were
    less than three storeys and 600 m
2
, (ii) were being rented for
    remuneration or services to more than four people; and (iii) the tenants shared
    washroom and kitchen facilities.

[76]

The appellants claim Mr. Boutette breached the
    standard of care in laying charges and that the trial judge erred in
    determining that any further requirements relating to specialized
    investigations under the
Fire Code
, beyond the existence or absence of
    reasonable and probable grounds, would require expert evidence. They say Mr.
    Boutette was aware of legal authority in support of the requirement that there be
    a reasonable belief that the residence is not a shared living space but chose
    to ignore it. They also say Mr. Boutette ignored or failed to collect evidence
    that was consistent with the residences being shared living spaces.

[77]

For the reasons set out below, I agree with the
    trial judge that there were reasonable and probable grounds to believe an
    offence had been committed when Mr. Boutette laid the charges, bearing in mind
    that there was no obligation to correctly determine whether the charges would
    succeed at trial and that she made no error in her standard of care analysis.

The
Good
decision did not
    foreclose the possibility of conviction

[78]

Mr. Boutette was aware of this courts decision
    in
Good (ONCA)
which, as discussed, concluded that in that case, whether
    a building was a lodging house or a residential unit for the purpose of a
    municipal business licensing bylaw depended on whether there was collective
    decision-making sufficient to create a single unit for housekeeping purposes.

[79]

The statutory context in this case is
    different than in
Good
and the trial judge held that Mr. Boutettes
    view that
Good
might not apply to
Fire Code
investigations
    was reasonable in the circumstances. It was therefore reasonable to think that the
    definition of a boarding, lodging, or rooming house under
Fire Code
might
    be more expansive than the bylaws at issue in
Good
.

[80]

Good
was a
    business licensing dispute. The trial judge in
Good
favoured a
    restrictive interpretation of the relevant bylaw in favour of the right of an
    owner to deal freely with the property: see
Good (ONSC)
, at paras.
    12-13 (noting, however, that his decision did not turn on this point); see also
Good (ONCA)
, at para. 2.

[81]

The
Fire Code
, by contrast, is a public
    welfare regulation. Such regulations are given a liberal interpretation by the
    courts, as to do otherwise would interfere with or frustrate the attainment of
    the legislatures public welfare objectives:
Ontario (Ministry of Labour)
    v. Hamilton (City)
, 58 O.R. (3d) 37 (C.A.), at para 16.

[82]

It was objectively reasonable to think the
    different statutory context might be relevant and that factors other than those
    identified in
Good
might militate in favour of the applicability of
    the
Fire Code
. As the trial judge observed, subsequent jurisprudence has
    confirmed the view that whether a property is a lodging house within the
    meaning of a bylaw depends on the particular bylaw at issue: see
Neighbourhoods
    of Windfields Limited Partnership v. Death
(2008),
49 M.P.L.R. (4th) 183 (Ont. S.C.), at paras. 70-71,
    affd, 2009 ONCA 277, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A.
    No. 253;
Payne (ONSC)
, at paras. 142-144.

Whether a residence is a lodging house is
    a contextual analysis

[83]

In
Good (ONCA)
, this court set out
    several factors relevant to whether the occupants of a residence exercise
    sufficient collective decision-making to form a single housekeeping unit,
    including the manner in which rent and utilities are paid, how the residence is
    furnished, and how housekeeping is organized. In addition to
Good
, Mr.
    Boutette was also aware of the
Bentolila
case.

[84]

In
Bentolila
, the appeal judge found that
    a residence occupied by students was a boarding house within the meaning of the
Fire Code
. Drawing on
Good
and other relevant authorities, that
    case set out a range of factors, at para. 56, relevant to this conclusion.
    These included, among other things, [a]part from their attendance at [a
    university], there was no mention of any other connection between the
    inhabitants, the only area where a resident could assert privacy was in his
    or her own bedroom, and each resident provided for his or her own nutritional
    needs, and shared the use of a number of refrigerators.

[85]

Taken as a whole, the caselaw stands for the
    proposition that the question of whether a residence is a lodging, boarding, or
    rooming house, within the meaning of the
Fire Code
,

is a
    contextual one. Mr. Boutette understood that, ultimately, this determination
    would be for the judge to make.

Mr. Boutette did a contextual analysis

[86]

Mr. Boutette collected a body of evidence in
    anticipation of
Good (ONSC)
being raised at trial with respect to both
    the Flood properties and the Papic duplex. For example, during his
    investigation at 659 Rosedale Avenue, Mr. Boutette gathered evidence of some relevant
    indicia: there were seven rooms rented; no evidence of pre-existing
    relationships among the students, only of being fellow students; no evidence of
    shared utilities or other expenses; the only privacy areas were indoor locks on
    the bedroom doors; the property had been rented to two people who sublet their
    tenancy to the other students; the sublets were not all entered into at the
    same time; and food in the refrigerator was labelled, suggesting that they were
    not eating communally. At the Askin duplex, he discovered that the tenants were
    strangers when they moved in, paid rent individually, and ate separately.

[87]

The Flood appellants claim Mr. Boutette ignored
    evidence that did not support his view, including a letter in which the tenants
    at 659 Rosedale stated that they act as a joint group. Mr. Boutette did not
    ignore this letter. He felt it was authored by someone other than the tenants.
    He was not required to take this letter at face value when considering whether
    to lay charges.

[88]

Ultimately, the appellants argue that a
    reasonable investigator would have reached a different conclusion and not laid
    charges. I do not accept this submission. As the trial judge observed, the
    standard of care to be applied by a professional generally requires expert
    evidence, unless the standard is clear to an ordinary person or the conduct so
    outrageous that it is obvious the standard has not been met:
495793 Ontario
    Ltd. (Central Auto Parts)
, at paras. 53 and 57;
Krawchuk
, at paras.
130-131
.

[89]

Mr. Boutettes conduct was not outrageous and
    the norms of fire safety investigation are not obvious. No expert evidence was
    adduced and the other evidence in the record, relied on by the Flood
    appellants, is no substitute.

Conclusion on the reasonable and probable
    grounds

[90]

Mr. Boutettes duty was not to come to the
    correct conclusion regarding the legal status of the residence before laying
    charges. It was to exercise his discretion in accordance with the options open
    to him at the time that fell within the range of reasonableness:
Hill
,
    at para. 73. I agree with the trial judge that, in this case and in the absence
    of expert evidence, it was open to Mr. Boutette to conclude that there were
    reasonable and probable grounds to lay charges because:

a)

The term lodging house is not a defined term
    in the
Fire Code
;

b)

Interpretation of the term is contextual. A
    number of factors have been considered, as outlined above;

c)

In
Bentolila
, a conviction was upheld
    in similar circumstances when applying a public safety regulation.
Good
did not apply a public safety regulation;

d)

Mr. Boutettes function was not to draw legal
    conclusions when deciding whether to lay charges;

e)

No expert evidence was adduced and the other
    evidence in the record, relied on by the Flood appellants, is no substitute;
and,

f)

Mr. Boutette believed the properties were lodging
    houses and that several of the
Good
factors supported his view. There
    was evidence to support this belief.

[91]

Mr. Boutettes conduct was not outrageous and
    the norms of fire safety investigation are not obvious.
For these reasons, I see no error in the trial judges conclusion
    that the investigator had reasonable and probable grounds to lay the charges.

(2)

The Second Issue: Whether the investigation was
    negligent

[92]

The second issue is whether Mr. Boutette
    conducted an otherwise negligent investigation.

[93]

In my view, it is far from clear that Mr.
    Boutettes conduct did not meet the standard of care. As noted above, the law
    distinguishes between unreasonable mistakes that breach the standard of care,
    and errors in judgment which a reasonable professional might make which do not
    breach the standard of care. The function of an investigator is to investigate
    incidents that might breach the
Fire Code
, make a conscientious and informed decision as to whether charges
    should be laid, and present the full facts to the prosecutor. Although investigators
    weigh evidence to some extent in the course of an investigation, they are not required
    to canvass all possible avenues of investigation, interview all potential
    witnesses, evaluate evidence according to legal standards, or draw correct
    legal conclusions:
495793 Ontario Ltd. (Central
    Auto Parts)
, at paras. 51-52;
Wong
, at paras. 56-59;
Upchurch
, at para. 28.

[94]

Mr. Boutette attended each of the premises at
    least once to investigate. He also sought the opinion of several people in
    other municipalities who had dealt with similar issues. He consulted with the
    Fire Marshal and the Crown Attorney. Thereafter, he received little cooperation
    from the appellants to obtain further information about the premises or
    authorization to speak with their tenants again.

[95]

Mr. Boutette gathered information and he knew
    that
Good v. Waterloo
involved a different statutory context (business
    licensing as opposed to fire safety) and may therefore not be determinative of
    the issue of whether he should charge the appellants with
Fire Code
infractions.
    He also reasonably relied on the
Bentolila
decision.

[96]

For these reasons, I see no error in the trial
    judges conclusion that Mr. Boutette acted reasonably in conducting his
    investigation.

(3)

The Third Issue: The claim of malicious prosecution

[97]

The elements of malicious prosecution are (a) the
    initiation of a prosecution by the defendants; (b) termination of a prosecution
    in favour of the party prosecuted; (c) the absence of reasonable cause to
    commence the proceeding, and (d) a finding that the prosecutor acted with malice
    in setting the prosecution in motion:
Miazga

v. Kvello Estate
,
    2009 SCC 51, [2009] 3 SCR 339, at paras. 53-56. Malice is the wilful perversion
    of abuse of office for an improper purpose:
Miazga
, at para. 80. It is
    an intentional or wilful state of mind and must be specifically pleaded.

[98]

As I have detailed above, the issue of malice
    does not arise in this case as Mr. Boutette, in the circumstances at the time,
    acted with reasonable and probable grounds to believe an offence had been
    committed. As the Supreme Court explained in
Miazga
, at para. 55:

As a matter of policy, if reasonable and
    probable cause existed at the time the prosecutor commenced or continued the
    criminal proceeding in question, the proceeding must be taken to have been
    properly instituted, regardless of the fact that it ultimately terminated in
    favour of the accused.

[99]

In any event, the trial judge fairly concluded
    that there was no malice on the part of Mr. Boutette as not only did he conduct
    a protracted investigation of the facts, he demonstrated some concern for the
    appropriateness of the charges ultimately brought:

This is not a case in which an investigator
    was determined to lay charges, whatever the evidence or circumstances. To the
    contrary, Boutette sought advice and guidance from several investigators and
    individuals. He obtained information from Bruce Weaver, and Jeff Maraway. He
    considered the PowerPoint presentation made by a representative of the Ontario
    Fire Marshals office. He did his own research.

Significantly, the investigator went so far as
    to seek input from the Crown Attorney.

[100]

Mr. Boutettes evidence as to his motive was that, [i]ts very
    difficult for me as a fire investigator or a fire official to not order
    something that could mean a difference between life and death on how students
    who move into a house live.

[101]

The trial judge therefore concluded that Mr. Boutette did not base
    his decision to lay charges on improper motives and did not seek out or target
    these properties for investigation; rather, complaints were made to the Fire
    Prevention Division and Mr. Boutette simply responded to them; as found by the
    trial judge, the charges were motivated by a genuine and legitimate desire to
    enforce the
Fire Code
. Her decision is amply supported by the evidence,
    and she did not ignore evidence of the difficult relationship between Mr.
    Boutette and the appellants during the course of the investigation.

[102]

The Flood appellants also raise the issue of malice on the part of
    City Council. They claim the trial judge ignored the evidence of a connection
    between the retrofit enforcement strategy and the prosecutions of the
    appellant. The Papics claim that malice on the part of City Council can be attributed
    to Mr. Boutette through the doctrine of vicarious liability.

[103]

I do not accept these arguments. The trial judge observed that Mr.
    Boutette was not at the Council meetings and considered at length, at paras.
    119-122 of her reasons, whether an improper motive for the retrofit enforcement
    strategy influenced Mr. Boutettes decision to lay charges:

Finally, I must address the
allegation
that the charges were laid for an
    oblique motive, namely to discourage landlords from renting or continuing to
    rent to student tenants. Were the charges laid for an improper purpose,
    unrelated to fire safety, that would displace the finding that the investigator
    acted reasonably.

Evidence
was led to
    indicate that officials with the City of Windsor had concerns about an influx
    of student housing. The enforcement under the
Fire Code
happened after
    the City had tried enforcement under the
Building Code
. That
    enforcement effort was unsuccessful, and therefore the City made the decision
    to use the
Fire Code
to address the issues. The question is what the
    motivation was. The plaintiffs allege that the
Fire Code
was used to
    crack down on or reduce student population.

There are some aspects of the evidence that
    give me pause. It is not clear to me why some of the discussion of the issue by
    Council was
in camera
. No landlords were invited to attend the council
    meeting. There had been complaints about student housing from neighborhood
    residents. It was recognized that the enforcement program might incidentally
    reduce student housing if landlords were not prepared to retrofit. On the other
    hand, there was also good reason to be concerned about fire safety in
    properties rented out to multiple students during the school year.

Whatever the impetus for City Councils
    enforcement strategy, I find
that it did not affect, or
    infect, the conduct of the investigations carried out by Boutette.

[104]

I see no basis to disturb this finding. An oblique motive was not
    proven at trial and, even if it were, that would not necessarily amount to
    malice. In any event, there is no evidence that such a motive affected Mr.
    Boutettes conduct.

(4)

The Fourth Issue: The unresolved Papic claims

[105]

The Papics raised a number of claims in relation to the development
    property at 207 Askin Avenue.
These claims were not
    addressed by the trial judge in her reasons and the Papic appellants therefore ask
    that the issues be remitted to the Superior Court of Justice for determination.
    The respondents request that this court determine these issues in accordance
    with its discretion under s. 134 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[106]

In brief, starting in 2007, the Papics

encountered difficulties getting approval for a minor
    variance for their 207 Askin Avenue property, where they hoped to build a new multiple-unit
    dwelling for student housing. Although the Planning Department supported the
    variance, the Papics encountered resistance from other community members. The Citys
    Committee of Adjustment denied the requested variance, on the basis that (i) it
    was not a minor variance, (ii) the variance was not desirable for the
    appropriate development of the land, and (iii) the granting of the application
    would depart from the purpose of the zoning bylaw and the Citys Official Plan.

[107]

The Papics successfully appealed the Committee of Adjustments
    decision to the Ontario Municipal Board (OMB), but a City solicitor believed
    a site plan control process was required by the OMB decision. Papics legal
    representative acknowledged that the development would be subject to site plan
    control and would be circulated to area residents for approval and stated that
    Papic had no issue with that nor was there any disagreement about this issue at
    the hearing.

[108]

The Papics went through the site plan control process and filed an
    application in January 2009. In February, a member of the Site Plan Review
    Committee recommended approval of the Papics application. City Council elected
    to vote on the application. The March 2009 vote was a tie, meaning the plan was
    not approved. The Papics once again appealed to the OMB which, in May 2009, issued
    an amending memorandum to its earlier decision, striking any reference to the Papics
    property being subject to site plan control or the site plan control process. The
    OMBs amending memorandum indicated that it had been incorrectly advised by
    the Papics planning witnesses that their property was subject to site plan
    control and that the parties agreed the property is not subject to site plan
    control. At this point, the Papics could apply for and subsequently were
    granted the relevant building permit.

[109]

The Papic appellants claim these delays were caused by Mr. Boutette
    and the City and resulted in significant cost.

[110]

I agree with the respondents that there is nothing to be gained by
    sending this matter back to the Superior Court and that it is in the interests
    of justice that this court determine these issues:
Klurfeld v. Nova Quest
    Logistics Inc.
, 2016 ONCA 348, 132 O.R. (3d) 66, at para. 33. The events
    giving rise to the Papics claims on these issues date back to 2007. The record
    before this court is full and allows for the fair adjudication of these issues
    without prejudice to the parties who have had the opportunity to present
    evidence and make full submissions at trial. Moreover, the claims are bound to
    fail.

[111]

City departments supported the 207 Askin Avenue development
    throughout. There was no evidence adduced at trial to support a finding that
    the City solicitor, who believed a site plan control process was required by
    the OMBs decision, acted negligently or with malice.
Mr.
    Boutette appeared at one meeting at the request of a superior, said nothing of
    any moment, and was otherwise uninvolved.

[112]

To the extent the Papics seek to hold the City liable for delays
    attributable to the decision of the Committee of Adjustment or the vote at City
    Council, these were policy decisions, made in good faith, for which there is no
    legal liability in tort under the
Municipal Act, 2001
, S.O. 2001, c.
    25, s. 450.

[113]

The Papics plead harassment and intentional infliction of
    emotional distress. There is as yet no recognized common law tort of
    harassment: see
Merrifield v. Canada (Attorney General)
, 2019 ONCA 205,
    145 O.R. (3d) 494, leave to appeal refused, [2019] S.C.C.A. No. 174. In my
    view, the circumstances of this case cannot plausibly warrant the recognition
    of such a tort. The claim of intentional infliction of emotional distress is
    also fatally flawed: none of the conduct at issue was flagrant, outrageous, or calculated
    to harm the Papics.

[114]

Finally, the Papics claim of misfeasance in public office must
    fail. The City councillors were not acting unlawfully or in bad faith when they
    elected to vote on the site control plan application: see
Trillium Power
    Wind Corp. v. Ontario (Ministry of Natural Resources)
, 2013 ONCA 683, 117
    O.R. (3d) 721, at paras. 37-39. They were acting in response to community
    opposition to the Papics proposed variance.

[115]

In sum, the Papics sought a variance to a property. Community
    members objected and raised their concerns with City Council, the role of which
    is to resolve such disputes. There is nothing particularly unusual, much less
    tortious, about the events that followed.

DISPOSITION

[116]

For the above reasons, I conclude that the trial judge made no error
    in finding that Mr. Boutette had reasonable and probable grounds to lay
    charges, his conduct did not fall below the standard of care, and he did not
    act with malice towards either the Flood or the Papic appellants. Moreover,
    there is no legal liability for the Citys treatment of the Papic request for the
    minor variance at 207 Askin Avenue. I would therefore dismiss the appeals.

[117]

In accordance with the bill of costs submitted by the respondents, I
    would award partial indemnity costs of the appeals to the respondents in the
    amount of $45,000 inclusive of disbursements and HST.

Released: July 19, 2021 S.E.P

J.A.
    Thorburn J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. L.B. Roberts J.A.

[1]
The
    trial judge used reasonable grounds and the reasonable grounds standard as
    a short form for reasonable and probable grounds. Nothing turns on this
    abbreviation.

[2]

Before
    November 2007, s. 9.3.1.1(1)(b) of the
Fire Code
, O. Reg. 388/97, referenced more than three
    persons, not more than four.

[3]

The
    2006
Building Code
,
    O. Reg. 350/06, defines
boarding houses, lodging houses,
    rooming houses in the same manner.