In the recent decision of Samaroo v. Canada Revenue Agency, 2015 BCCA 116 (18 March 2015), the appeal court considered whether a party suing CRA for malicious prosecution must satisfy a threshold evidentiary burden of showing there is merit to the claim before being entitled to discovery. The court held, against the arguments advanced on behalf of CRA, that there was no such threshold in law and therefore no such basis upon which CRA may object to the discovery.

In Samaroo, the plaintiffs were charged with and acquitted of tax evasion. They sued CRA and the prosecutor for malicious prosecution and sought discovery. Discovery was resisted on the basis of R. v. Anderson, 2014 SCC 41, a criminal case in which an accused applied for a stay of proceedings on grounds that conduct of the Crown amounted to a violation of s.7 of the Charter and an abuse of process.

In Anderson, the court held that the exercise of prosecutorial discretion, which includes decisions such as the commencement or termination of criminal proceedings, can only be reviewed on the grounds of abuse of process. Further, where such an abuse of process application is advanced, it is appropriate for the court to require that the accused/applicant make a preliminary showing that there is an air of reality to the application, prior to the court entering into the Charter based application itself. Where the applicant fails to satisfy the threshold evidentiary burden, the right to proceed with the Charter application may be denied.

On the basis that the rationale in Anderson applies equally to discovery in cases of malicious prosecution, CRA argued that before the plaintiffs might be entitled to discovery, the court should require the plaintiffs to satisfy a threshold test of showing there is substance to their claim.

The appeal court rejected the argument that Anderson applies to civil proceedings on several grounds including that, Anderson was a criminal case; “the pragmatic considerations in criminal cases are different from civil cases”, and; “the reasons in Anderson do not evince any intention of diminishing the tort of malicious prosecution, which surely would be the effect of imposing a threshold evidentiary burden prior to discovery.”

In arriving at this result the court observed that in civil proceedings there are mechanisms for having meritless claims struck before trial. The court concluded:

If a threshold burden were imposed on the tort, it would virtually eliminate such claims, because the claimant would be unable to conduct examinations for discovery and discovery of documents to make out a case for malice. In most cases, if malice exists it will be found by probing the exercise of prosecutorial discretion through discovery. This is particularly important in exploring the prosecutor’s state of mind. The imposition of this additional burden would amount to the absolute immunity that was rejected in Nelles.

This result is surely correct and consistent with basic demands of fairness. While it may be that the tort of malicious prosecution will succeed only where conduct of the Crown has been egregious, that is distinct from whether CRA and the Crown should be subject to discovery. If, after discovery, there is no substance to a claim for malicious prosecution, a court hearing an application can strike the claim. However, there is no entitlement in law that CRA should be exempt from discovery and, as the Supreme Court of Canada in Nelles cautioned, rules should not be crafted which would in effect grant the Crown immunity.