Court of Appeal for Ontario

Citation: Bennett Environmental Inc. v. Bennett, 2014 ONCA 655

Date: 2014-09-24

Docket: C58762

Before: Juriansz, LaForme and Lauwers JJ.A.

Between

Bennett Environmental Inc.

Plaintiff (Respondent/Defendant by counterclaim)

and

John Anthony Bennett

Defendant (Appellant/Plaintiff by counterclaim)

Counsel:

John Anthony Bennett, acting in person

Eliot N. Kolers and Douglas Hodgson, for the respondent

Heard and released orally: September 15, 2014

On appeal from the order of Justice Kevin W. Whitaker of the Superior Court of Justice, dated April 9, 2014.

Endorsement

[1] This is an appeal from the order of Whitaker J. of the Superior Court of Justice, dated April 9, 2014, granting Bennett Environmental Inc.’s motion to strike Mr. Bennett’s counterclaim without leave to amend. Mr. Bennett asks that the order be set aside and an order be granted dismissing the motion or granting leave to amend the counterclaim.

[2] The motion judge accepted the company’s assertion that Mr. Bennett’s counterclaim essentially rest on three allegations: that the company made misleading statements to the United States Department of Justice; that these misleading statements resulted in his indictment; and that he has suffered damage as a result of public knowledge of the indictment. Accordingly, the motion judge found that Mr. Bennett’s counterclaim rested entirely on malicious prosecution.

[3] The motion judge correctly pointed out that a claim for malicious prosecution can only succeed if the impugned prosecution has been terminated in favour of the plaintiff. Mr. Bennett could not amend his counterclaim to plead that fact because the prosecution against him is still under way. Consequently, the motion judge granted the company’s motion to strike the counterclaim without leave to amend.

[4] We agree that Mr. Bennett’s counterclaim is predominantly a claim of malicious prosecution. While Mr. Bennett asserts other causes of action, they all rest on the same premise: that the prosecution against him is without merit and based on false or negligently provided statements. In order for such claims to succeed, the prosecution would have to be terminated in his favour. Since the prosecution is still ongoing, Mr. Bennett’s claims are premature.

[5] In our view, the decision of the court in Gottlieb v. Stikeman Elliott LLP, 2009 ONCA 60 applies. We do not agree that decision can be distinguished on the basis that it involved a domestic prosecution and Mr. Bennett’s case involves a foreign prosecution.

[6] The appeal is dismissed.

[7] Costs to the respondent are fixed in the amount of $6,600, all inclusive.

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“P. Lauwers J.A.”