Plaintiff drove to gas station to fill his tire and saw area marked off by cones for fuel truck. Plaintiff drove through what he saw was open lane and defendant fuel truck driver waved plaintiff to a stop, put his legs in contact with plaintiff’s bumper and then reported plaintiff to police for striking him. As a result, plaintiff was charged with mischief and dangerous driving and commenced action against defendant alleging malicious prosecution to which defendant did not respond. Motion by plaintiff for default judgment for legal fees and rent for accommodation for six months because charges prevented him from entering United States where he had bought home. Motion granted. Defendant initiated and was instrumental in criminal proceedings against plaintiff, and plaintiff was acquitted so proceedings were clearly terminated in his favour. Plaintiff established defendant lacked subjective basis for making complaint and evidence described man who was angry and vindictive at what he saw as plaintiff’s disregard for his cones. Defendant lied to police to cover up his own negligent cone placement and plaintiff did nothing more than drive through what he saw as open lane and stop to avoid defendant. Improper purpose and malice established. Plaintiff granted judgment for $23,866.37.
Drainville v. Vilchez (Jul. 4, 2014, Ont. S.C.J., P.H. Howden J., File No. Newmarket CV-12-110766-00) 242 A.C.W.S. (3d) 986.