Samaroo v. Canada Revenue Agency et al., (2015) 369 B.C.A.C. 162 (CA)

JudgeDonald, Harris and Goepel, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJanuary 30, 2015
JurisdictionBritish Columbia
Citations(2015), 369 B.C.A.C. 162 (CA);2015 BCCA 116

Samaroo v. CRA (2015), 369 B.C.A.C. 162 (CA);

    634 W.A.C. 162

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.046

Tony Samaroo and Helen Samaroo (respondents/plaintiffs) v. Canada Revenue Agency, Brian David Jones, and Brian D. Jones Law Corporation (appellants/defendants)

(CA042081; 2015 BCCA 116)

Indexed As: Samaroo v. Canada Revenue Agency et al.

British Columbia Court of Appeal

Donald, Harris and Goepel, JJ.A.

March 18, 2015.

Summary:

The plaintiffs brought a civil claim for malicious prosecution after they were acquitted of all tax charges on a 21-count information. The defendants resisted disclosure of certain documents on the authority of R. v. Anderson (SCC 2014), which was said to have established a broad rule imposing a "threshold evidentiary burden" on a party challenging prosecutorial discretion.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 1349, rejected the defendants' arguments. The defendants appealed.

The British Columbia Court of Appeal dismissed the appeal. The function of imposing a threshold evidentiary burden on abuse of process claims in criminal cases was served in the civil sphere by the high burden of proof required to prove the tort and the availability of summary disposition procedures. If a threshold burden were imposed on the tort, it would virtually eliminate such claims, because the claimant would be unable to conduct examinations for discovery and discovery of documents to make out a case for malice. In summary, Anderson did not apply to the tort of malicious prosecution. The claimant was not required to satisfy a threshold evidentiary burden prior to discovery, and therefore there was no foundation to the defendants' objection to production of the documents.

Criminal Law - Topic 259

General principles - Abuse of process - Evidence - See paragraphs 1 to 20.

Torts - Topic 6168

Abuse of legal procedure - Malicious prosecution - Evidence and proof - See paragraphs 1 to 20.

Cases Noticed:

R. v. Anderson (F.) (2014), 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 311 C.C.C.(3d) 1; 2014 SCC 41, dist. [para. 3].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 8].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 8].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 17].

Counsel:

D.J. Strachan and S.A. Lord, for the appellants;

S.M. Kelliher and C. Funt, for the respondents.

This appeal was heard at Victoria, British Columbia, on January 30, 2015, by Donald, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Donald, J.A., at Vancouver, British Columbia, on March 18, 2015.

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