Boudreault v. Barrett,

• Judge: LoVecchio,McFadyen,O'Leary
• Neutral Citation: 1998 ABCA 232
• Court: Court of Appeal (Alberta)
• Date: 09 July 1998

Boudreault v. Barrett (1998), 219 A.R. 67 (CA);

   179 W.A.C. 67

MLB headnote and full text

Temp Cite: [1998] A.R. TBEd. JL.090

Gerald Raymond Joseph Boudreault (plaintiff/appellant) v. Robert (Bob) Barrett, Lorne James Shields, John Alden Magnus, William Arthur Smith, Peter Copple, Gerry Borbridge, Chief of Calgary Police Service, Dwayne Alexander (Sandy) Dunn, Harold W. Hagglund, Esq., Attorney General of Alberta and Ken Rostad (defendants/respondents)

(Appeal No. 97-17212; 1998 ABCA 232)

Indexed As: Boudreault v. Barrett et al.

Alberta Court of Appeal

McFadyen and O'Leary, JJ.A.,

and LoVecchio, J.(ad hoc)

July 9, 1998.

Summary:

During a preliminary inquiry, the Crown stayed proceedings against the plaintiff, who had been charged with murder and conspiracy to commit murder. Two years and nine months later, the plaintiff sued agents of the Attorney General and police for damages for malicious prosecution. The defendants applied under rule 129 to strike the statement of claim on the grounds that it failed to disclose a cause of action, was scandalous, frivolous or vexatious or that it was an abuse of process.

A Master of the Alberta Court of Queen's Bench, in a judgment reported 140 A.R. 24, refused to strike the statement of claim under rule 129(1)(a) (no cause of action) or rule 129(1)(b) (scandalous, etc.). However, the Master ruled that the action was barred by the two year limitation period (Limitation of Actions Act, s. 51) and was doomed to fail on its facts. The Master apparently struck the statement of claim and dismissed the action under rule 129(1)(d) (abuse of process). The plaintiff appealed.

The Alberta Court of Queen's Bench dismissed the appeal. The plaintiff appealed.

The Alberta Court of Appeal, in a judgment reported 174 A.R. 71; 102 W.A.C. 71, allowed the appeal and set aside the Master's decision. There was no admissible evidence to support a finding of abuse of process. It could not be said beyond doubt that the plaintiff's claim was statute barred. The defendants should have applied under rule 159(2) for summary judgment dismissing the action, rather than under rule 129(1)(d). The defendants applied under rule 159(2) for summary judgment to dismiss the action for malicious prosecution and because the action was statute-barred by a two year limitation period.

The Alberta Court of Queen's Bench granted summary judgment dismissing the action. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal. The action was properly dismissed under rule 159, as the action could not succeed if it proceeded to trial.

Limitation of Actions - Topic 3213

Actions in tort - Trespass to the person - Malicious prosecution - During a preliminary inquiry, the Crown stayed proceedings against the plaintiff, who had been charged with murder and conspiracy to commit murder - Two years and nine months later, the plaintiff sued agents of the Attorney General and police for damages for malicious prosecution - The Alberta Court of Appeal affirmed summary judgment under rule 159 dismissing the action for expiration of the two year limitation period under s. 51(d) of the Limitation of Actions Act - The court stated that s. 579(2) of the Criminal Code, which permitted the Crown to re-commence stayed proceedings within one year, did not operate to delay the commencement of the limitation period for that year - See paragraphs 16 to 18.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Torts - Topic 6156 ].

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The Alberta Court of Appeal stated that to succeed in an action for malicious prosecution the plaintiff was required to prove "(a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; (d) malice, or a primary purpose other than that of carrying the law into effect" - See paragraph 10.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - Boudreault and three others were charged with murder after a lengthy and comprehensive investigation - Boudreault was implicated primarily by statements by Grewal - Grewal refused to testify at the preliminary inquiry - Absent his evidence, the Crown stayed the charges against Boudreault - The others either pleaded guilty or were convicted - The conviction was founded in part on the strength of Grewal's testimony - Boudreault sued for malicious prosecution - The Alberta Court of Appeal affirmed summary judgment dismissing the action - It was plain and obvious that Boudreault could not prove two required elements: the absence of reasonable and probable cause and malice -The prosecution of Boudreault was justified and there was no evidence of malice (i.e., spite, ill-will or vengeance) - See paragraphs 1 to 15.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Torts - Topic 6156 ].

Cases Noticed:

German v. Major (1985), 62 A.R. 2; 30 Alta. L.R.(2d) 270 (C.A.), refd to. [para. 9].

Zebroski v. Jehovah's Witnesses (1988), 87 A.R. 229 (C.A.), refd to. [para. 9].

Allied-Signal Inc. v. Dome Petroleum Ltd. et al. (1991), 122 A.R. 321; 81 Alta. L.R.(2d) 307 (Q.B.), refd to. [para. 9].

Nelles v. Ontario et al. (1988), 98 N.R. 321; 35 O.A.C. 161; 49 C.C.L.T. 217 (S.C.C.), refd to. [para. 10].

Statutes Noticed:

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 51(d) [para. 16].

Rules of Court (Alta.), rule 159(2), rule 159(3) [para. 8].

Counsel:

G. Blochert, for the plaintiff/appellant;

G.A. Meikle, Q.C., for the defendants/respondents, Harold W. Hagglund, Attorney General of Alberta and Ken Rostad;

G.N. Stapon, for the remaining defendants/respondents.

This appeal was heard on June 19, 1998, before McFadyen and O'Leary, JJ.A., and LoVecchio, J.(ad hoc), of the Alberta Court of Appeal.

On July 9, 1998, the following memorandum of judgment was delivered by the Court.