With Malice Towards One

September 25th, 2014 by

It is a claim that is rarely launched in modern courts. It is a claim that even more rarely succeeds. In Ontario, and indeed in the rest of the common-law provinces, the tort of malicious prosecution exists to compensate victims of legal actions undertaken against them for a nefarious or ulterior purpose. Most often, claims of malicious prosecution are lobbied against Crown prosecutors and police constables. However, every so often a scorned citizen launches a claim against a private person who, through misrepresentations told to police, caused them to be charged and prosecuted by the authorities. In Drainville v. Vilchez, released earlier this June, the Ontario Superior Court ruled that Mr. Drainville had succeeded in establishing that he was the victim of this latter form of malicious prosecution.

The facts giving rise to Mr. Drainville and Mr. Vilchez’s encounter, and the former’s prosecution, are fairly straightforward. Mr. Vilchez was a truck driver who was refilling the pumps at a gas station when Mr. Drainville pulled in to fill his tires with air. Mr. Vilchez had erected, though improperly placed, safety pylons around his truck. As Mr. Drainville rolled past Mr. Vilchez, he was signaled to stop by the truck driver. When Drainville stopped, Vilchez “put his legs in contact” with Drainville’s front bumper. As the presiding Justice Howden put it, “[t]he driver reported Drainville to the police, telling them in indignant anger that Drainville intentionally went out of his way to hit him.” After Drainville was charged, prosecuted and eventually acquitted of mischief and dangerous driving, he launched a civil suit against Vilchez.

Both the parties were self-represented, and Vilchez failed to file a defence. Without a defence, Justice Howden was forced to accept the plaintiff’s allegations of fact as true. With that factual backdrop, the judge applied the four criteria to a finding of malicious prosecution: (1) that the prosecution was initiated by the defendant; (2) that the proceeding went in favour of the plaintiff; (3) that the plaintiff has shown an absence of probable cause for the proceedings; (4) that the defendant acted with malice. Since the proceedings were commenced entirely at the behest of Vilchez and Drainville was acquitted of all charges, Justice Howden found that the first two parts of the test were easily met. Normally, the third criterion of probable cause presents as difficult to prove. However, as Vilchez failed to file a defence and the Court was forced to accept Drainville’s account of the event as true and, consequently, Justice Howden found that the third criterion is met.

Finally, the learned judge found that Vilchez’s initial allegations against Drainville involved malice. As he noted, “[t]his 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.” In the result, the judge awarded Drainville $23,866.37, representing the cost of legal fees incurred in fighting the criminal charges, and rent paid for alternate arrangements when Mr. Drainville was denied entry to the U.S. as a result of the then-pending charges.


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