Su v. Chowdhury, 2014 ONSC 5730

• Judge: Then, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 27, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONSC 5730;(2014), 327 O.A.C. 39 (DC)

Su v. Chowdhury (2014), 327 O.A.C. 39 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.029

Yi Jing Su (defendant/appellant) v. Abul Nowshar Chowdhury, also known as Babel Abul Nowshar Chowdhury (plaintiff/respondent)

(232/13; 2014 ONSC 5730)

Indexed As: Su v. Chowdhury

Court of Ontario

Superior Court of Justice

Divisional Court

Then, J.

October 1, 2014.

Summary:

The plaintiff sued the defendant for malicious prosecution and defamation.

The Ontario Small Claims Court allowed the action, awarding the plaintiff damages of $25,000 and costs of $9,076. The defendant appealed.

The Ontario Divisional Court, per Then, J., allowed the appeal and ordered a new trial.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of -The parties were employees of the Hilton Hotel - There were involved in a dispute which the defendant alleged culminated in an assault by the plaintiff by pushing the defendant in the doorway of the kitchen where the plaintiff worked - The defendant reported the incident to the police, who conducted an investigation and subsequently charged the plaintiff with assault - The plaintiff was tried and acquitted - The plaintiff commenced an action for malicious prosecution and defamation - A deputy judge allowed the action, awarding the plaintiff damages of $25,000 and costs of $9,076 - The defendant appealed - The Ontario Divisional Court, per Then, J., allowed the appeal and ordered a new trial - To succeed on a claim for malicious prosecution, a plaintiff had to establish on a balance of probabilities each of the following elements: (i) the proceeding had to have been initiated by the defendant; (ii) the proceeding had to have been terminated in favour of the plaintiff; (iii) an absence of reasonable and probable cause; and (iv) malice or other primary purpose other than of carrying the law into effect - The deputy judge erred in law in dealing with elements (i) and (iii) and further erred in law in including a fifth element, i.e., identified by the deputy judge as "unequal relationship".

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 18].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187 (C.A.), refd to. [para. 22].

Mirra et al. v. Toronto Dominion Bank et al., [2004] O.T.C. 365; 2004 CarswellOnt 1716 (S.C.), refd to. [para. 24].

Pate v. Galway-Cavendish and Harvey (Township) (2011), 280 O.A.C. 230; 2011 CarswellOnt 7802 (C.A.), refd to. [para. 27].

St. Jacques v. Doyle et al., [2008] O.A.C. Uned. 120; 2008 CarswellOnt 1270 (Div. Ct.), refd to. [para. 34].

Counsel:

Michael N. Freeman, for the defendant/appellant;

Michael Tweedie and Marco Drudi, for the plaintiff/respondent.

This appeal was heard on May 27, 2014, by Then, J., of the Ontario Divisional Court, who delivered the following judgment on October 1, 2014.