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ABUSE OF LEGAL PROCEDURE OR PROCESS - Elements of tort - Malicious prosecution - Establishing elements - Malice - Practice and procedure - Pleadings

Wednesday, November 08, 2017 @ 6:10 AM  

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Appeal by the plaintiff, Clark, from a Queen's Bench chambers judgment striking his statement of claim against a solicitor, Hunka, and her law firm. The defendant solicitor acted as independent counsel to a discipline tribunal established by the Institute of Chartered Accountants of Alberta to deal with a professional misconduct complaint against the plaintiff. On the first day of the hearing, the plaintiff sought to strike the disciplinary proceeding due to a failure to keep information acquired during the investigation confidential. The Tribunal retained the defendant as independent counsel to advise it with respect to law and procedure. The plaintiff's request to strike the proceeding was subsequently refused. Thereafter, the plaintiff alleged that the defendant was in a conflict of interest on the basis she acted as counsel without disclosing her previous role in prosecuting complaints against other chartered accountants before other discipline tribunals established under the same legislation. The Tribunal found that the conflict raised a reasonable apprehension of bias, but that the circumstances did not justify a stay of proceedings. On judicial review, a stay of the disciplinary proceeding was granted. The plaintiff subsequently sued the defendant solicitor and her firm seeking damages for malicious prosecution. The Court of Queen's Bench struck the claim on the basis it failed to allege facts supporting the mandatory element of the tort of malicious prosecution. The plaintiff appealed.

HELD: Appeal dismissed. The chambers judge did not err in concluding the plaintiff's claim did not allege facts to establish that the defendant initiated or continued the prosecution against the plaintiff through legal advice provided to the Tribunal. Nor did the chambers judge err in concluding the claim lacked particularized facts establishing that the defendant acted with malice. There was no indication that the defendant actually appreciated her role as independent counsel would create a reasonable apprehension of bias. There was no merit to the plaintiff's contention the defendant knowingly gave the Tribunal advice she knew was wrong. An apprehension of bias was insufficient to establish malice.

Clark v. Hunka, [2017] A.J. No. 1101, Alberta Court of Appeal, C.A. Fraser C.J.A., M.B. Bielby and M.G. Crighton JJ.A., October 24, 2017. Digest No. TLD-November62017005