Man wins damages in personal
malicious prosecution case
by Arshy Mann, Canadian Lawyer Mag
Originally published July 16th, 2014
The Ontario Superior Court of Justice has awarded damages to a man in a malicious prosecution case — but the defendant wasn’t the police or the Crown.
Drainville v. Vilchez is an uncommon example of a malicious prosecution suit being brought against a private individual.
“Normally the person or entity against whom a malicious prosecution suit is brought is the police or the Crown,” wrote Justice Peter H. Howden. “There are rare cases like this one where the complainant has been the defendant, without creating even a ripple on the surface of the lake of analytic discipline.”
Howden points out the tort of malicious prosecution actually has its origins in private litigation and not suits against state authorities.
“The target of the suit is the person who was ‘actively instrumental in setting the prosecution in motion,’” he wrote.
Plaintiff Denis Drainville had been criminally charged and subsequently acquitted of mischief and dangerous driving. The person who had reported him to the police, Mario Vilchez, was the target of the suit.
The initial criminal charges arose out of a peculiar situation that took place at a gas station in 2011. Drainville pulled in to put air into a tire as Vilchez, a fuel truck driver, was refueling the pumps. A number of cones had been put down to indicate the area where other drivers couldn’t enter. However, the cones were improperly placed.
“When [Drainville] 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,” wrote Howden. “The driver reported Drainville to the police, telling them in indignant anger that Drainville intentionally went out of his way to hit him.”
Both Drainville and Vilchez were self-represented in the civil suit and Vilchez didn’t enter a defence.
In order for a malicious prosecution suit to succeed, it has to meet a four-part test:
• the prosecution has to have been initiated by the defendant,
• the proceeding must have gone in the plaintiff’s favour,
• the plaintiff has to demonstrate there was an absence of probable cause, and
• the plaintiff has to show malice on the part of the defendant.
Since Vilchez’s allegations were the entire basis for the criminal charges against Drainville — for which he was acquitted — the judge found the first two parts of the test were met in this case.
Figuring out whether there was probable cause proved to be more of a challenge.
The facts were in dispute. Vilchez claimed Drainville hit him with his car, while Drainville denied it, but it was clear the two people were involved in some sort of incident. However, since Vilchez didn’t submit a defence, Howden was forced to look at the incident relying entirely on the facts provided by Drainville.
“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,” he wrote. “Those misrepresentations included allegations of fact that comprised the elements of the criminal charges. These are allegations of fact that I must accept.”
Finally, Howden reasoned that Vilchez’s allegations did involve malice, fulfilling the four-part test.
“This conduct describes a man who was angry and vindictive for what he saw as the plaintiff’s disregard of his safety cones,” he wrote. ”He lied to the police knowing that a criminal prosecution against Mr. Drainville would follow.”
The court ordered that Vilchez pay Drainville $23,866.37 for legal fees and additional rent the plaintiff had because of the original criminal complaints.