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[Malicious Prosecution from Investigation: McNeil v Brewers]
Malicious Prosecution from Investigation: McNeil v Brewers
Malicious prosecution cases are rare, but they do occur. The results are dramatic when the case is proven. In the two successful applications of this claim arising from an employment investigation, in each instance the employer failed to provide known exculpatory evidence to the police.
In the 2008 decision of the Court of Appeal, the initial jury award of roughly $2 million, including interest and costs was upheld. The award consisted of $100,000 for general damages, $188,000 for aggravated, and punitive damages of $500,000. In addition, the plaintiff recovered $308,000 as a past income loss, $240,000 for future lost income. His spouse was awarded a Family Law dependent claim of $50,000.
A detailed summary of the facts of McNeil may be seen here: McNeil v Brewers
A similar fact situation followed in Pate v Galway, reviewed in detail here.
Pate was paid a severance of one year, ultimately voluntarily. He recovered $75,000 as aggravated damages for unfair conduct at the time of termination and, after a series of appeals, $450,000 as punitive damages. He did not seek damages based on past and future income loss, as he could have, given a tort claim, as was the case in McNeil.
The essence of the test for a malicious prosecution case is:
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- The employer initiated the criminal prosecution;
- There was an acquittal;
- The employer and its principals did not have reasonable grounds to initiate the proceeding;
- The above acted with malice or with a primary purpose other than carrying out the criminal law.
It may also be noted that a claim for malicious prosecution is not caught by the mandatory grievance process, as is the case for workplace wrongdoings.
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David Harris — Canadian Employment Law
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