



COURT OF APPEAL FOR ONTARIO

CITATION: Bennett Environmental Inc. v.
    Bennett, 2014 ONCA 655

DATE: 20140924

DOCKET: C58762

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

Bennett Environmental Inc.

Plaintiff (Respondent/

Defendant by counterclaim)

and

John Anthony Bennett

Defendant (Appellant/

Plaintiff by counterclaim)

John Anthony Bennett, acting in person

Eliot N. Kolers and Douglas Hodgson, for the respondent

Heard and released orally: September 15, 2014

On appeal from the order of Justice Kevin W. Whitaker of
    the Superior Court of Justice, dated April 9, 2014.

ENDORSEMENT

[1]

This is an appeal from the order of Whitaker J. of the Superior Court of
    Justice, dated April 9, 2014, granting Bennett Environmental Inc.s motion to
    strike Mr. Bennetts counterclaim without leave to amend. Mr. Bennett asks that
    the order be set aside and an order be granted dismissing the motion or
    granting leave to amend the counterclaim.

[2]

The motion judge accepted the companys assertion that Mr. Bennetts
    counterclaim essentially rest on three allegations: that the company made
    misleading statements to the United States Department of Justice; that these
    misleading statements resulted in his indictment; and that he has suffered
    damage as a result of public knowledge of the indictment. Accordingly, the
    motion judge found that Mr. Bennetts counterclaim rested entirely on malicious
    prosecution.

[3]

The motion judge correctly pointed out that a claim for malicious
    prosecution can only succeed if the impugned prosecution has been terminated in
    favour of the plaintiff. Mr. Bennett could not amend his counterclaim to plead
    that fact because the prosecution against him is still under way. Consequently,
    the motion judge granted the companys motion to strike the counterclaim
    without leave to amend.

[4]

We agree that Mr. Bennetts counterclaim is predominantly a claim of
    malicious prosecution. While Mr. Bennett asserts other causes of action, they all
    rest on the same premise: that the prosecution against him is without merit and
    based on false or negligently provided statements. In order for such claims to
    succeed, the prosecution would have to be terminated in his favour. Since the
    prosecution is still ongoing, Mr. Bennetts claims are premature.

[5]

In our view, the decision of the court in
Gottlieb v. Stikeman
    Elliott LLP
, 2009 ONCA 60 applies. We do not agree that decision can be
    distinguished on the basis that it involved a domestic prosecution and Mr.
    Bennetts case involves a foreign prosecution.

[6]

The appeal is dismissed.

[7]

Costs to the respondent are fixed in the amount of $6,600, all
    inclusive.

R.G. Juriansz J.A.

H.S. LaForme J.A.

P.
    Lauwers J.A.


