Gabadon v. Toronto Police Services Board
The Court agreed with the motions judge that the appellant failed to produce evidence of malice; the record demonstrates an absence of malice and the respondent's conduct (not calling an unsavoury witness to avoid a wrongful conviction) does not permit inferring malice from the possible absence of reasonable and...
Source-derived case information.
- Citation
- C40342
- Parties
- Appellant: Cecil Gabadon; Respondent: Toronto Police Services Board, P.C. McLaughlin and M.A. Mackett
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 25 November 2003
- Procedural Posture
- Civil / Appeal From Superior Court of Justice
- Outcome
- Appeal dismissed; leave to appeal costs refused; respondent awarded costs fixed at $2,500.
- Legal Topics
- Malice, Reasonable and Probable Grounds, Evidence, Costs, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecil Gabadon
Appellant
Toronto Police Services Board, P.C. McLaughlin and M.A. Mackett
Respondent
Procedural Posture
Civil / Appeal From Superior Court of Justice
Legal Issues
- 1 Whether there was evidence of malice to sustain a malicious prosecution claim
- 2 Whether absence of reasonable and probable grounds permits an inference of malice
- 3 Whether respondent's decision not to call an unsavoury witness can be evidence of malice
Ratio Decidendi
The Court agreed with the motions judge that the appellant failed to produce evidence of malice; the record demonstrates an absence of malice and the respondent's conduct (not calling an unsavoury witness to avoid a wrongful conviction) does not permit inferring malice from the possible absence of reasonable and probable grounds, therefore the appeal is dismissed.
Court Disposition
Appeal dismissed; leave to appeal costs refused; respondent awarded costs fixed at $2,500.
Orders
- Appeal dismissed
- Leave to appeal costs refused
Full Case Text
Judgment text and source record
1 paragraphs
Gabadon v. Toronto Police Services Board Collection Decisions of the Court of Appeal Date 2003-11-25 Docket numbers C40342 Judges Rosenberg, Marc; MacPherson, James C.; Sharpe, Robert J. Subject Civil Decision Content DATE: 20031125 DOCKET: C40342 COURT OF APPEAL FOR ONTARIO RE: CECIL GABADON (Appellant) - and - TORONTO POLICE SERVICES BOARD, P.C. McLAUGHLIN and M.A. MACKETT (Respondent) BEFORE: ROSENBERG, MACPHERSON and SHARPE JJ.A. COUNSEL: Kikelola Roach for the appellant Kim Twohig and Tamara Barclay for the respondent HEARD & ENDORSED: November 20, 2003 On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice dated May 21, 2003 and June 20, 2003. APPEAL BOOK ENDORSEMENT [1] We agree with the reasons of the motions judge. In Nelles v. Ontario and in Proulx v. Quebec, the Supreme Court of Canada emphasized that the court cannot merely second-guess the prosecutor; there must be evidence of malice. Not only did the appellant not adduce evidence of malice, but the record demonstrates an absence of malice. The respondent chose not to call an unsavoury witness to prevent a wrongful conviction. In those circumstances, there was no basis for inferring malice from the possible absence of reasonable and probable grounds. [2] Appeal is dismissed. [3] Leave to appeal costs is refused. [4] The respondent is entitled to costs fixed at $2,500.