NEWMARKET COURT FILE AND PARTIES

COURT FILE NO.: CV-12-110766-00
DATE: 20140704

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Denis Drainville, Plaintiff

AND:

Mario Vilchez, Defendant

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL: Denis Drainville, Self-represented

Mario Vilchez, Not appearing

HEARD: June 12, 2014

ENDORSEMENT

[1] Denis Drainville was charged on November 23, 2011 with mischief and dangerous driving, contrary to the Criminal Code of Canada, based on the allegations of the defendant Mario Vilchez. After his criminal trial, Mr. Drainville commenced an action against Vilchez in this court. The language of several causes of action was employed throughout the Statement of Claim including declaratory Charter relief, negligence, malicious prosecution, intentional economic interference, and slander and defamation. Mr. Drainville, representing himself throughout, made submissions on his motion that made clear that he was proceeding on the claim for damages for malicious prosecution.

[2] The claim arose out of a misunderstanding that developed when Mr. Drainville drove into a gas station to put air in a tire. A work area was marked off by cones where a fuel truck was refuelling the pumps. When he drove into an area seemingly clear of cones and leading to the air pump, the fuel truck driver waved him to a stop and when he stopped, the driver put his legs in contact with the Drainville front bumper. The driver reported Drainville to the police, telling them in indignant anger that Drainville intentionally went out of his way to hit him. The police laid the two charges set out above. Mr. Drainville alleges in his statement of claim that the defendant Vilchez’s statements were untrue, were intentionally made, and that as a result of the defendant’s misrepresentations, the charges were laid, causing him to attend court for his trial where he was acquitted by the judge.

[3] His statement of claim asks for damages in addition to the declaratory relief in the sum of $950,000. On his motion for judgment, he waived the general damages claimed and restricted it to liquidated damages including his legal costs for amounts paid to 3 prior lawyers who represented him or assisted him totalling $13,721.70; and rent for accommodation from June to November 2012 because the charges prevented him from entering the United States where he had contracted to buy a home, in the amount of $10,144.67.

[4] The defendant failed to enter a defense after being served with the statement of claim. Pleadings were noted closed against him. Mr. Drainville now brings a motion for default judgment. It was originally returnable on December 5, 2013 when a lawyer appeared for Mr. Vilchez. The motion was adjourned to June 12, 2014 because the lawyer represented that Vilchez was out of the country and the lawyer had no copy of the motion record and needed considerable time to be able to communicate with his client. He was given until March 17, 2014 to file responding material.

[5] On June 12, 2014, Mr. Drainville appeared on his motion. No responding material was filed and no defendant or lawyer appeared in opposition. The defendant and the lawyer who had appeared for him were both paged at least twice but did not appear. Mr. Drainville made submissions on the 4-part test necessary to succeed on a claim for malicious prosecution. I am cognizant of rule 19.05 of the Rules of Civil Procedure whereby on a motion for judgment where the defendant is in default, all allegations of fact are taken to be true. Mr. Drainville also stated that he was limiting his claim to only liquidated damages. He abandoned his claims for general, aggravated, exemplary and punitive damages.

[6] I reserved on the motion so that I could review the law on malicious prosecution and then deliver judgment on the motion. I have been able to review the authorities and the statement of claim as well as to consider Mr. Drainville’s submissions. I will deal with this matter under the 4-part analysis laid down by the case authorities for establishing whether a case is made out in the tort of malicious prosecution. The principal authority is from the Supreme Court of Canada, Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339, a unanimous judgment of the court delivered by Charron J.

1. The plaintiff must prove that the prosecution was initiated by the defendant.

[7] Normally the person or entity against whom a malicious prosecution suit is brought is the police or the Crown. However, there are rare cases like his one where the complainant has been the defendant, without creating even a ripple on the surface of the lake of analytic discipline. In fact, this tort arose out of private litigation, not actions against public officials. The target of the suit is the person who was “actively instrumental in setting the prosecution in motion”. In this case, it is the defendant who initiated and was actively instrumental in initiating proceedings against the plaintiff when he complained to the police about the alleged actions of the plaintiff. It meets the elements of the exception to the general rule found in Kefeli v. Centennial College of Applied Arts & Technology, [2002] O.J. No. 3023 (C.A.), cited in Fitzpatrick v. Orwin, 2012 ONSC 3492 (SCJ); Wood v. Kennedy, 1998 14927 (SCJ).

[8] In R.A.W v. L.C.K (1998), 1998 14927 (ON SC), 165 D.L.R. (4th) 542 (Ont. C.J.-Gen. Div.) Sharpe J. (as he then was) adopted the following analysis from the House of Lords, at pp.567-569 of Martin:

Where an individual falsely gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

The first element of the analysis is met.

2. The plaintiff must prove the proceeding was terminated in his favour.

[9] There is no doubt on this element. The law is that it does not matter how the proceeding was terminated and it is clear here that not only did the prosecution end but the ending was in the plaintiff’s favour. He was acquitted. The second element is met.

3. The plaintiff must prove that there was a lack of reasonable and probable grounds for malicious prosecution.

[10] This is a matter of mixed fact and law. The facts pleaded in the statement of claim are, in short, that the plaintiff never hit or contacted the defendant and that the cones were placed improperly for him to know he was not supposed to use the route that he did.

[11] This is where this motion becomes problematic because neither the police service nor the Crown is a defendant. It was the police who laid the charges on information from the defendant. However, the test of reasonable and probable grounds does not place the threshold high. The normal practice in applying the reasonable and probable grounds test is to ask whether, subjectively and objectively, there were reasonable and probable grounds to commence the prosecution. But here, both litigants are private so is this still the case?

[12] In R.A.W v. L.C.K, supra, the Court of Appeal found that the alleged incidents of sexual assaults or touching never took place; therefore, there were no reasonable and probable grounds as the incident never happened. In the case before me, the question is more complicated. An incident involving the plaintiff’s car, his driving and the defendant did occur. There conflicting views as to what happened.

[13] In Fitzpatrick v. Orwin, the complainant Squires reported that a dead coyote was found on the hood of his vehicle. The police investigated and by the end of the day, they had charged and arrested the next-door neighbour Fitzpatrick on the charge of criminal harassment. The presiding judge held as follows:

The third element of the Nelles test requires an absence of reasonable and probable cause. As stated by Charron J. in Miazga at para. 58, the plaintiff bears the onus of proof in this respect, and the test necessitates a subjective and objective inquiry into the prosecutor’s decision to initiate a proceeding.

I find that Mr. Fitzpatrick has failed to discharge his burden of establishing this element of the test for the following reasons. The Squires were credible witnesses, and so I place great weight on their testimony as to why they called the police. Mr. Fitzpatrick had been action in a belligerent manner for some time, and had made degrading comments about the Squires. ...moreover, he or someone acting on his instructions placed the dead coyote on Mr. Squires’ vehicle. All of these incidents satisfy the objective element of the test, in that they formed a reasonable basis on which a proceeding should be commenced. Moreover, given the Squires’ interpretation of the dead coyote as a death threat..., I am also satisfied that the subjective element is satisfied. Thus, I find that the Squires had reasonable and probable cause to make their complaint to the police. In turn, I find that the Squires had reasonable and probable cause to make their complaint to the police. In turn, based on the results of her investigation, Constable Sullivan had reasonable and probable grounds to arrest and charge Mr. Fitzpatrick on November 12, 2007.

[14] The Fitzpatrick case decision followed a trial. In place of trial evidence on matters of fact, I can rely on the statement of claim for the facts only, according to rule 19.05. In this case, the crucial time to be applied for purposes of the third element is at the time of the incident and the report to the police by Mr. Vilchez. Charron J. in Miazga held at para. 58 that the onus is on the plaintiff to prove that there is an absence of actual belief in the prosecutor at the time of initiation of the proceedings (para. 58). Where a professional prosecutor is sued, the plaintiff can succeed by proving an absence of either subjective or objective reasonable grounds. (at para. 70) Where only private litigants are involved, as here, Charron J. stated that a case can be made that the absence of a subjective belief, regardless of the actual facts, should satisfy the third element. She concludes that because a private prosecutor is not charged with the execution of any public duty, it is enough where private litigants are concerned that the plaintiff proves absence of subjective belief in that there are reasonable and probable grounds for the prosecution. In default of any defence, the plaintiff’s statement of claim alleges that the defendant’s version of events, in which he believed, were false. Those misrepresentations included allegations of fact that comprised the elements of the criminal charges. These are allegations of fact that I must accept.

[15] I find that the plaintiff has proven a lack of any subjective belief by the defendant in reasonable and probable grounds for initiating criminal proceedings and, following Miazga, that is sufficient where, as here, only private litigants are involved. Therefore, following Charron J.’s obiter in Miazga, the third element is met.

4. The plaintiff must prove that the defendant was motivated by malice.

[16] As an intentional tort, malicious prosecution requires proof of malice. Malice is required to strike the appropriate balance between the public interest in the effective administration of justice and compensating individuals who have been wrongly prosecuted. The issue of malice is a question of fact; it requires proof that the initiator or prosecutor of the charges was impelled by an “improper purpose”.

[17] The meaning of malice was addressed by Charron J. in Miazga. Malice requires more than the absence of a subjective belief in there being reasonable and probable grounds that a criminal offence has been committed. It has been held to require proof that the person who initiated or is prosecuting the charges perverted or abused the criminal process. The third and fourth elements of malicious prosecution cannot be conflated. Charron J. refers to the origin of malicious prosecution in the context of prosecutions between private persons and mentions that in that historic context it may have made sense to infer malice from an absence of reasonable and probable cause. However at no time does she suggest that that should be the case now. Miazga is a case of a prosecution by the Crown and an action against officials of the Crown, a public prosecution by Crown prosecutors and therefore does not deal with the 4th element of the tort in terms of an action between private individuals. However the court does state that malice requires evidence of a prosecution being brought for an improper purpose. It requires proof that the prosecutor wilfully perverted the process of criminal justice, as in Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 SCR 9, where a prosecution sold out to a private purpose in that it was brought to assist a former police officer being sued for defamation by allowing him to gather evidence against Proulx without restriction. It was a criminal prosecution motivated by a desire to assist the defence of the civil defamation action and allowed manipulation of evidence by the officer to gain a conviction at any price to that end (Miazga, at paras. 81-85).

[18] Another example of an improper purpose is R.A.W. v. L.C.K., supra, where Sharpe J. found the following:

I find it is impossible to come to any other conclusion than that L.K. must have known that the allegations she made against R.W. were untrue. In making this finding, I emphasize that this does not mean that civil liability flows automatically where a complainant's evidence is rejected...

60 While there was no evidence that she had any particular feelings of ill-will towards R.W., I would adopt Mr. Catalano's submission that L.K. did have a reason to lie. The allegations were made at a time of turmoil in L.'s life. The marriage of her parents was breaking down. Her father was drinking to excess. He admits that he was an alcoholic. The family finances were severely strained. A substantial inheritance had been dissipated. The family home was for sale. When she first mentioned to her school friends that she had been abused, L. received significant attention from them, attention she was eager for. In all likelihood, she got far more attention than she expected, and she found that she had started something she simply could not stop. While I am reluctant to impose liability for something that started as a story between thirteen year old school girls, it went far beyond that and resulted in serious criminal charges being laid against R.W. Moreover, one cannot lose sight of the fact that at the time, L.K. was fully aware of the consequences of her actions. I find that the plaintiffs have demonstrated that she acted without reasonable and probable grounds and that she was acting with malice.

[19] In this case, the plaintiff pleads in his statement of claim that the defendant lied to the police about the essential elements of the two charges. He was not under any honest mistaken belief but knowing that criminal charges could result, he was untruthful about the facts in order to cause damage to the plaintiff and to get back at the plaintiff for what he regarded as the plaintiff’s driving his car on a path where the defendant assumed he had blocked off any traffic - (“The conduct of the defendant was vindictive and deliberately oppressive”, S of C, paras. 14-17 and 25). Furthermore in Ex. K, Mr. Vilchez’s employer stated that the driver “believes he was acting correctly for the situation and that the charges are not his to drop or change”. The trial judge’s reasons describe the defendant at the time of reporting the incident as “upset”, “angry” and “he was banging your car”. (Ex. B, Judge’s Reasons).

[20] This conduct describes a man who was angry and vindictive for what he saw as the plaintiff’s disregard of his safety cones. He lied to the police knowing that a criminal prosecution against Mr. Drainville would follow. He had a reason to lie; he had been careless in his placement of the safety cones and so, in order to cover for his own negligence, he seized on victimizing Mr. Drainville who had done nothing more than stop to avoid him and drive through what he saw as an open lane to the air pump to fill his tire. This was very serious for Vilchez because he was dealing with a highly dangerous substance while refuelling the tanks at the gas station.

[21] In acting as he did, the defendant engaged in an improper purpose which was to employ the criminal process for purposes of what was a purely civil dispute as a cover for his own negligence. Nasiero v. Creighton, [1999] O.J. No. 1549 (S.C.J.) at para. 30; R.A.W. v. L.C.K., supra.

[22] The plaintiff has met the onus of addressing successfully the fourth element of the test.

[23] Judgment will issue in default of defence and appearance by the defendant in favour of the plaintiff in the sum of $23,866.37. This represents his claim for damages for legal fees and additional rent caused by the process set in motion by the defendant.

HOWDEN J.

Date: July 4, 2014