The appellant appealed an order striking his counterclaim without leave to amend.
The counterclaim alleged that the respondent made misleading statements to the US Department of Justice, resulting in his indictment.
The motion judge found the counterclaim rested entirely on malicious prosecution, which requires the prosecution to have terminated in the plaintiff's favour.
Because the prosecution was ongoing, the claim was premature.
The Court of Appeal agreed and dismissed the appeal.
