I was recently  defended a specious counterclaim for damages  alleging the wrongful filing of a certificate of pending litigation that supposedly caused the opposing party damages.

In researching the matter. I found the case law to be very clear that in order to succeed with this claim, it must be shown that the opposing party who filed the certificate of pending litigation did so maliciously.

In Marshall v. Heidi (1984 ) 56 BCLR 107, ( C.A.) . the appeal court held that the root of the action lies in abuse of civil process, and like other actions for abuse of civil process, the ingredients of the action required that the plaintiff establish malice on the part of the defendant, who filed the charge and the damages flow from the malicious filing and malicious abuse of process.

The Supreme Court of Canada to find the malice in  Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.) where  the followMaliceing definition was given:

Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Chemeskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth














Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

More Posts - Website - Google Plus