Mr. Justice D.S. Gunsolus

The defendant brought a motion for leave to appeal to the Divisional Court from a status hearing endorsement permitting the action to proceed on a timetable despite a 1.5‑year delay.

The moving party argued that the status hearing judge erred by proceeding without sworn affidavit evidence and by exercising discretion contrary to applicable case law.

The court reviewed the test for leave to appeal an interlocutory order under Rule 62.02(4) of the Rules of Civil Procedure and held that status hearings may properly proceed on oral submissions and do not necessarily require sworn evidence.

The court found no conflicting authority, no good reason to doubt the correctness of the earlier discretionary decision, and no issue of broader public importance.

Leave to appeal was therefore refused.

Following a direction from the Court of Appeal to reconsider liability for malicious prosecution, the court determined whether a municipality could be liable for initiating criminal proceedings against a former employee.

The court applied the four‑part test from Nelles v. Ontario and examined whether the municipality initiated the prosecution, lacked reasonable and probable grounds, acted with malice, and whether the proceedings terminated in favour of the plaintiff.

The court found the municipality withheld exculpatory information from police regarding missing municipal files and prior internal investigations, thereby undermining the independence of the police investigation and becoming the proximate cause of charges that resulted in an acquittal.

The court concluded the prosecution was pursued to justify the employee’s dismissal and shield the municipality from civil liability.

Liability for malicious prosecution was established, but damages were fixed at a nominal amount pursuant to agreement of counsel.