Hêtu v. Dixville Butter & Cheese Assoc'n, (1908) 40 SCR 128

Supreme Court of Canada

Hêtu v. Dixville Butter & Cheese Assoc'n, (1908) 40 S.C.R. 128

Date: 1908-03-23

Gonzague E. Hetu (Plaintiff) Appellant;

and

The Dixville Butter and Cheese Association (Defendants) Respondents

1908: March 2; 1908: March 23.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Malicious prosecution—Reasonable and probable cause—Bonà fide belief in guilt—Burden of proof—Right of action for damages-Art. 1053 (7.(7.—Pleading and practice.

An action for damages for malicious prosecution will not lie where it appears that the circumstances under which the information was laid were such that the party prosecuting entertained a reasonable bona fide belief, based upon full conviction founded upon reasonable grounds, that the accused was guilty of the offence charged. Abrath v. North Eastern Railway Go. (11 App. Cas. 247) and Cox v. English, Scottish and Australian Bank ((1905) A.C. 168) referred to.

Semble, that in such cases, the rule as to the burden of proof in the Province of Quebec is the same as that under the law of England, and the plaintiff is obliged to allege and prove that the prosecutor acted with malicious intentions or, at least, with indiscretion or reprehensible want of consideration. Sharpe v. Willis (Q.R. 29 S.C. 14; 11 Rev. de Jur. 538) and Durocher v. Bradford (13 R.L. (N.S.) 73) disapproved.

Judgment appealed from (Q.R. 16 K.B. 333) affirmed.

Appeal from the judgment of the Court of King's Bench, appeal side(1), affirming the judgment of the Superior Court, Hutchinson J., by which the plaintiff's action was dismissed with costs.

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The material circumstances of the case are stated in the judgment of the Chief Justice now reported.

L. C. Bélanger K.C. and Hector Verret for the appellant.

Shurtleff K.C. for the respondents.

L. C. Bélanger K.C. and Hector Verret for the appellant. As we have shewn such absence of reasonable cause for arrest that the plaintiff was honourably acquitted by the magistrate, there is no necessity of going further and making affirmative proof of malice; Sharpe v. Willis[1]; Painchaud v. Bell[2]; Gowan v. Holland[3]. The evidence of having taken the advice of counsel was irregularly admitted and was objected to at the trial. In any event, taking such advice is not an answer to the action; the defendants were obliged to shew the existence of probable cause for laying the information; Tanguay v. Gaudry[4]; 61 Am. & Eng. Eneyc, p. 899; Rielle v. Benning[5]; Charlehois v. Bourassa[6]; 19 Am. & Eng. Encyc, p. 687. We also rely upon the decisions in Burrows v. Ransom[7]; Brizard v. Sylvestre[8]; Denard v. Gay[9]; and Charlehois v. Surveyer[10].

Shurtleff K.C. for the respondents. The facts justifying the prosecution have all been found in our favour by the trial judge. The plaintiff utterly failed to prove malice, or even any indiscretion or carelessness on the part of the respondents. These facts were found sufficient by the justice of the peace, by the trial judge and by the court below, as

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well as by the legal adviser to whom the respondents stated their case with full faith in the suspicious circumstances on which they founded a bonà fide belief in the guilt of the plaintiff. See Hilliard on Torts, p. 49; Cooley on Torts, p. 123; Bowes v. Ramsay[11]. It was the duty of the private prosecutor to lay the information and bring the guilty person to punishment; Grothév. Saunders[12]; Pinsonneault v. Sébastien[13]; Lefuntun v. Bolduc[14]. In addition to the authorities cited in the judgments in the court below, we refer to Moloney v. Chase[15]; Francœur v. Boulay[16]; Le-mire v. Duclos[17]; Renaud v. Guenette[18]; and Giguère v. Jacob[19].

The judgment of the court was delivered by

The Chief Justice.—The action out of which this appeal arises was brought for the purpose of recovering damages for what is usually called malicious prosecution.

The plaintiff, now appellant, was the owner of a creamery at a place called Dixville in the Eastern Townships. After this creamery had been in operation about six years the defendants, now respondents, started a rival factory with the result that most of the business of the neighbourhood was attracted to their establishment.

During the night of July 27th, 1905, when the new creamery was completed and ready for business, an

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attempt was made to set fire to the building, and, for reasons which are stated at great length in the evidence, suspicion was directed towards the appellant as the guilty party. The local magistrate was consulted by one of the officials of the respondent company and on his suggestion further inquiries were made, the results of which were laid before counsel who advised that the appellant should be prosecuted. Thereupon the appellant was arrested and, after the preliminary examination, he was committed for trial. Subsequently the district magistrate before whom the case was tried under the "Speedy Trials Act" discharged him. Two of complainant's witnesses were absent from the country at the time of the trial, and there may have been sufficient evidence to shew a probable cause for prosecuting, but not such plain proof of guilt as would justify a conviction. After his acquittal by District Magistrate Mulvena, the appellant brought this action for $5,000 damages, alleging the arrest and subsequent discharge and that the respondents acted maliciously and without reasonable and probable cause. The respondents pleaded that they used proper care to inform themselves of the facts, that the act was done without malice and that they honestly believed the case which they laid before the magistrate. On these issues the parties went to trial. The judge of the Superior Court, who saw the witnesses and had full opportunity of judging by their demeanour whether they were witnesses of truth, came to the conclusion that the respondents had taken care to inform themselves of the facts of the case; that no malice had been proved and that there was abundant evidence of reasonable and probable cause, and dismissed the action. In this conclusion the judges in

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appeal concur and I can see no reason on the evidence why we should reverse.

In appeal an issue was raised as to the burden of proof and this question has been recently much discussed in the Quebec Courts; Sharpe v. Willis[20], and Durocher v. Bradford[21]. At page 80 of the last report many cases are cited and much learning is displayed to prove that there is a difference between the English and French rule of law on this point; but, expressing a personal opinion, I agree with Mr. Justice Blanchet that there is no such difference. Under the English system, in an action for malicious prosecution

the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable nor probable cause for instituting it:

Abrath v. North Eastern Railway Co.[22]; Cox v. English, Scotch and Australian Bank[23], at p. 170;

and the principles applicable in cases arising in Quebec will be found laid down in article 1053 of the Code:

Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

To make the party prosecuting responsible, it is necessary that the damage should be caused by his fault; and to lay an information, when in possession of facts sufficient to establish a bonà fide belief of guilt, is not a fault, but the exercise of an undoubted right. In Quebec, as in English courts, it must be alleged and proved that there was fault, that is to say, that

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the prosecutor acted, to use the words of the Cour de Cassation

dans le dessein coupable de nuire ou, du moins, avec une indiscrétion et."une légèreté répréhensibles" (Fuzier-Hermann, vo. "Dénonciation calomnieuse, No. 231; Sourdat, Responsabilité, Vol. 1, No. 633; Receuil Philly, sommaires Mars 1908 No. 1930;

and the plaintiff in his declaration thought it necessary to allege in conformity with this view of the law that the prosecution was started maliciously to injure him and without reasonable and probable cause.

It is not necessary, however, for the purposes of this case to determine that point; the evidence given is sufficient to prove that the party prosecuting entertained a reasonable bonà fide belief based upon full conviction founded upon reasonable grounds that the appellant was guilty of the offence which had undoubtedly been committed.

I would like to say, speaking again for myself, that in my opinion a private prosecutor is a useful person in a community where we have nothing in the nature of a public prosecutor and those who, having taken the reasonable care to ascertain the facts, prosecute duly in the public interest should be protected. It would be encouraging useless appeals for this court to hold that an uneducated layman was in fault in assuming that he had reasonable and probable cause for a prosecution in a case in which the trial judge and five judges in appeal agree with him.

The appeal is dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: St. Pierre & Verret

Solicitor for the respondents: W. L. Shurtleff.