Radford v. Stewart, (2010) 496 A.R. 302 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 02, 2010
• Citations: (2010), 496 A.R. 302 (QB);2010 ABQB 586

Radford v. Stewart (2010), 496 A.R. 302 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.079

Allen Garth Radford (plaintiff) v. Robin Joseph Stewart (defendant)

(0510 00146; 2010 ABQB 586)

Indexed As: Radford v. Stewart

Alberta Court of Queen's Bench

Judicial District of Red Deer

Graesser, J.

September 14, 2010.

Summary:

The plaintiff sued the defendant for malicious prosecution. At the end of the plaintiff's case, the defendant applied for a nonsuit.

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 436, dismissed the application. The trial continued.

The Alberta Court of Queen's Bench dismissed the action.

Damage Awards - Topic 678

Torts - Abuse of legal procedure - Malicious prosecution - The defendant hired the plaintiff in August 1997 - The plaintiff quit on January 31, 2000 - The defendant filed a complaint with the RCMP with respect to a 1997 Ford truck and a 41 inch televison set that were in the plaintiff's possession when he left his employment - The complaint with respect to the television was resolved when the RCMP seized the television - The complaint with respect to the truck resulted in two charges of fraud - The plaintiff was found guilty of one count (unlawfully obtained credit by fraud from Ford Credit) - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench dismissed the action - The court provisionally assessed damages as followed: $10,000 for nominal general damages, $30,000 for loss of potential earnings in the plaintiff's new company, $5,500 for loss of the truck and $8,750 for defence costs - This would not have been an appropriate case for punitive damages as requested by the plaintiff - See paragraphs 176 to 202.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench confirmed that the test for liability was set out in Nelles v. Ontario (1989 SCC) and included the following elements: "1. The prosecution must have been initiated by the defendant; 2. The proceedings must have been terminated in favour of the plaintiff; 3. There must be an absence of reasonable and probable cause; and 4. There must be malice or a primary purpose other than that of carrying the law into effect." - All four elements had to be proven on a balance of probabilities - See paragraphs 68 to 70.

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - The defendant hired the plaintiff in August 1997 - The plaintiff quit on January 31, 2000 - The defendant filed a complaint with the RCMP with respect to a 1997 Ford truck and a 41 inch televison set that were in the plaintiff's possession when he left his employment - The complaint with respect to the television was resolved when the RCMP seized the television - The complaint with respect to the truck resulted in two charges of fraud - The plaintiff was found guilty of one count (unlawfully obtained credit by fraud from Ford Credit) - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench dismissed the action - The defendant had not "initiated the prosecution" as required by the first element of the test for malicious prosecution (Nelles v. Ontario (1989 SCC)) - The statement given to the RCMP was not false or misleading - The defendant's statement did not appear unduly slanted, nor did it lack frankness or candour in any material aspect - Essentially, the defendant complained that the plaintiff had purchased a truck in the defendant's company's name without authority to do so - He had somehow arranged financing in the company's name without authority, and had apparently registered, insured and plated the truck in the company's name without authority - The plaintiff had failed to return the truck, or pay for it, by the time the statement was given - None of that was untrue - The issues with respect to the television were accurately reported - Because the information given by the defendant to the RCMP was essentially accurate, the defendant did not "initiate the prosecution" - See paragraphs 71 to 143.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - The defendant hired the plaintiff in August 1997 - The plaintiff quit on January 31, 2000 - The defendant filed a complaint with the RCMP with respect to a 1997 Ford truck and a 41 inch televison set that were in the plaintiff's possession when he left his employment - The complaint with respect to the television was resolved when the RCMP seized the television - The complaint with respect to the truck resulted in two charges of fraud - The plaintiff was found guilty of one count (unlawfully obtained credit by fraud from Ford Credit) - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench dismissed the action - The plaintiff met the fourth element of the test for malicious prosecution (Nelles v. Ontario (1989 SCC)), i.e., a primary purpose other than that of carrying the law into effect - While the plaintiff had not proven that the defendant acted maliciously, on the evidence, the court found that the complaint to the RCMP was made for the primary purpose of furthering the defendant's private interests, and not for the purpose of "carrying the law into effect" - Given that the plaintiff had not proven the three other elements, the action in malicious prosecution failed - See paragraphs 165 to 169.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The defendant hired the plaintiff in August 1997 - The plaintiff quit on January 31, 2000 - The defendant filed a complaint with the RCMP with respect to a 1997 Ford truck and a 41 inch televison set that were in the plaintiff's possession when he left his employment - The complaint with respect to the television was resolved when the RCMP seized the television - The complaint with respect to the truck resulted in two charges of fraud - The plaintiff was found guilty of one count (unlawfully obtained credit by fraud from Ford Credit) - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench dismissed the action - The plaintiff had not met the third element of the test for malicious prosecution (Nelles v. Ontario (1989 SCC)), i.e., the absence of reasonable and probable cause - The defendant had reasonable and probable cause to be concerned about the purchase and financing of the truck - It was not unreasonable for him to wonder how a truck had been purchased by his company without his involvement - It was also not unreasonable for him to wonder how the company's credit had been pledged without his involvement - See paragraphs 157 to 164.

Torts - Topic 6165

Abuse of legal procedure - Malicious prosecution - Favourable termination of proceeding - The defendant hired the plaintiff in August 1997 - The plaintiff quit on January 31, 2000 - The defendant filed a complaint with the RCMP with respect to a 1997 Ford truck and a 41 inch televison set that were in the plaintiff's possession when he left his employment - The complaint with respect to the television was resolved when the RCMP seized the television - The complaint with respect to the truck resulted in two charges of fraud - The plaintiff was found guilty of one count (unlawfully obtained credit by fraud from Ford Credit) - The plaintiff sued the defendant for malicious prosecution - The Alberta Court of Queen's Bench dismissed the action - The plaintiff had not met the second element of the test for malicious prosecution (Nelles v. Ontario (1989 SCC)), i.e., a favourable termination of the proceeding - There was a close connection between the charge relating to the defendant and his companies and the charge relating to Ford Credit - The plaintiff was found criminally responsible arising out of the transactions the defendant complained about - The plaintiff was not exonerated with respect to the transactions; he was found to have committed an offence against one of the parties to the transaction, but not the party who complained about it - It could not be said that the proceedings relating to the transactions were resolved in his favour - See paragraphs 144 to 156.

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, appld. [para. 69].

R.C. v. McDougall - see F.H. v. McDougall.

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 70].

BMG Canada Inc. v. Antek Madison Plastics Recycling Corp. et al., [2006] O.A.C. Uned. 509 (C.A.), not folld. [para. 143].

McCarthy v. Barter (1895), 15 C.L.T. 198 (N.W.T.S.C.), revd. (1895), 15 C.L.T. 314 (N.W.T.C.A.), refd to. [para. 147].

Banks v. Bliefernich, [1988] 4 W.W.R. 296 (B.C.S.C.), refd to. [para. 147].

Ramsay v. Saskatchewan et al. (2003), 234 Sask.R. 172; 2003 SKQB 163, refd to. [para. 147].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 152].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 162].

Correia v. Canac Kitchens et al. (2008), 240 O.A.C. 153; 2008 ONCA 506, refd to. [para. 162].

Wilson Fuel Co. v. Canada (Attorney General) et al. (2009), 280 N.S.R.(2d) 298; 891 A.P.R. 298; 2009 NSSC 215, refd to. [para. 162].

Canada v. Lukasik (1985), 58 A.R. 313 (Q.B.), refd to. [para. 179].

Martel v. Zaychuk (2009), 466 A.R. 376; 2009 ABQB 6, refd to. [para. 179].

Kosmopoulos et al. v. Constitution Insurance Co. of Canada et al., [1987] 1 S.C.R. 2; 74 N.R. 360; 21 O.A.C. 4, refd to. [para. 182].

Rowe v. Bobell Express Ltd. et al. (2005), 210 B.C.A.C. 136; 348 W.A.C. 136; 2005 BCCA 141, refd to. [para. 189].

Whitehouse v. Reimer, Calgary Police Commission and Alberta (1979), 21 A.R. 541 (Q.B.), revd. (1980), 34 A.R. 414 (C.A.), refd to. [para. 190].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 190].

McNeil v. Brewers Retail Inc. et al., [2008] O.A.C. Uned. 724; 2008 ONCA 405, refd to. [para. 190].

Fidler v. Sun Life Assurance Co. of Canada (2006), 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 200].

Counsel:

Herbert Fielding, Q.C., and Chris Forgues, for the plaintiff;

David M. Smitten, for the defendant.

This action was heard on May 31 to June 2, 2010, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following memorandum of decision on September 14, 2010.