John Pate was dismissed without notice from his job as chief building official with the Township of Galway and Cavendish. The Township told him they had evidence he had kept building fees for his own account but that this would not be reported to the police if he resigned. Pate refused and the matter was reported to the police. Pate was acquitted of all charges and sued his former employer for wrongful dismissal and malicious prosecution. The employer conceded that Pate had been wrongfully dismissed. At the trial of the remaining issues, the judge awarded general, aggravated, special, punitive and Wallace damages but dismissed the claim for malicious prosecution. Pate appealed that finding and the quantum of punitives ($25,000).

Appeal allowed and new trial ordered, said Simmons JA: Pate v Galway-Cavendish (Township), 2011 ONCA 329 [Link available here]. The trial judge set the bar for proving malicious prosecution too high in not allowing malice to be inferred, in the case of a private party, from the absence of reasonable and probable grounds. The high standard required in establishing malice on the part of the Crown ‘simply [does] not apply where the action is against a private individual’. The judge also erred in requiring Pate to prove that the defendant actually initiated the prosecution; if the Township withheld exculpatory evidence from the police, that would be enough. The trial judge’s findings on malice with respect to the prosecution were also inconsistent with those on wrongful dismissal. The punitive damages award could have been higher but, like the wrongful prosecution claim, needed to be considered in a new trial.