Case information

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Torts - Malicious prosecution - Summary judgment - Whether the test for reasonable and probable grounds require that Crown Attorneys have a subjective belief in the guilt of the accused - Whether in a malicious prosecution action, absence of reasonable and probable cause alone is sufficient to raise an inference of malice - Whether in the context of a motion for summary judgment, the Court of Appeal erred in its interpretation of the standard of reasonable and probable grounds applicable at the time the decision was made to charge the Respondents

The Respondent Ferri, through a company he owned, entered into an agreement with the Toronto-Dominion Bank (the "TD Bank") to purchase a building in Welland, Ontario. The agreement of purchase and sale contained the following clause: "The vendor agrees to remove all bank records and files stored in the building prior to closing". This clause was subsequently crossed out by the TD Bank and the following clause was inserted: "The Purchaser accepts the building in an "as-is" condition". Thereafter, Ferri retained the Respondent, Mammoliti to assist him in the clean up of the purchased property, which was carried out prior to closing. As a result of the clean up, Mammoliti removed 2000 boxes containing customers' confidential banking information. The TD Bank and Ferri discussed the return of the files in exchange for compensation to Ferri for his labour and storage costs in an amount around $500 and a release from the TD Bank protecting him from lawsuits or damages. The TD Bank agreed in principle to Ferri's request. A few weeks later, Ferri's lawyer advised the TD Bank that they should now deal directly with Mammoliti, who had possession of the bank files. The TD Bank then contacted Mammoliti and requested the return of its files. Conversation ensued about how much the bank would pay for the return of the files, resulting in Mammoliti asking for $500,000. Following this conversation, the TD Bank contacted the Niagara Regional Police Service. Ferri and Mammoliti were both charged with the criminal offences of extortion and theft. Subsequent events resulted in all charges against Ferri and Mammoliti being dismissed or withdrawn. Independent civil actions were then commenced by Ferri and Mammoliti against the Niagara Regional Police Services Board, the Chief of Niagara Regional Police Service, the Niagara Regional Police Service, Ernest Clayton, Steve Macleod, Louann Schenck and Greg MacDonald (collectively, the "NRPD") and the Crown Attorneys, Allan Root and Patricia Vadacchino and the TD Bank seeking damages for malicious prosecution, false arrest, false imprisonment, negligence and breaches of the Charter.

The NRPD, Root and Vadacchino each moved for summary judgment. The motions judge granted both motions and dismissed the claims with costs. The Respondents, Mammoliti and Ferri sought an appeal. The majority of the Court of Appeal allowed the appeals with respect to the claims of malicious prosecution, Charter breaches and negligence and dismissed the appeal with respect to the claims for false arrest and false imprisonment.