Davies, Ducharme and Greidanus v. Pedersen

2003BCSC1052

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Davies, Ducharme and Greidanus v. Pedersen, 2003 BCSC 1052 Date: 20030710 Docket: 10681 Registry: Cranbrook Between: Julie-Anne Davies, Judith Diane Ducharme and Victoria Dale Greidanus Plaintiffs And Donald Harvey Pedersen Defendant Before: The Honourable Mr. Justice Goepel Reasons for Judgment Counsel for the Plaintiff, Victoria Dale Greidanus: L.G. Schafer Counsel for the Defendant: N.M. Robertson, Q.C. Date and Place of Trial: May 26 - 30, 2003 June 2 - 6 and 9 - 13, 2003 Cranbrook, B.C.

TABLE OF CONTENTS Page INTRODUCTION......................................................... 3 THE EARLY HISTORY.................................................... 4 THE WORSENING RELATIONSHIP........................................... 7 THE ASSAULT AND FIRE................................................ 15 A. Ms. Greidanus' Evidence................................. 15 B. Mr. Pedersen's Evidence................................. 22 THE WALKLEY REPORT.................................................. 28 THE CRIMINAL PROCEEDINGS............................................ 29 THE CIVIL PROCEEDINGS............................................... 29 ISSUES.............................................................. 30 THE ASSAULT CLAIMS.................................................. 31 THE FIRE CLAIM...................................................... 36 DAMAGES ARISING FROM THE FIRE....................................... 46 PUNITIVE DAMAGES.................................................... 48 THE DEFENDANT'S COUNTERCLAIM........................................ 49 A. Malicious Prosecution - Criminal Proceedings............ 49 B. Malicious Prosecution - Civil Proceedings............... 51 C. Abuse of Process........................................ 52 D. Rent.................................................... 53 COSTS............................................................... 54 SUMMARY............................................................. 55

INTRODUCTION [1] Victoria Greidanus and Donald Pedersen were friends. They travelled in the same social circle. In the summer of 1998, they became lovers. The relationship meant much more to him than to her. In the fall of 1998, Ms. Greidanus broke off the relationship, at least in part because she sensed that Mr. Pedersen was much more serious about her than she was about him. [2] In the months immediately following the break‑up, they remained friends. As time went on, the relationship became severely strained. There were ugly public confrontations between them. [3] In the early morning hours of March 19, 2000, Mr. Pedersen entered Ms. Greidanus' home. What next occurred is the subject matter of this proceeding. Ms. Greidanus claims that Mr. Pedersen assaulted her and then set fire to the house. Mr. Pedersen says it was he who was assaulted and denies starting the fire. He has filed a counterclaim alleging malicious prosecution and abuse of process.

THE EARLY HISTORY [4] To properly understand the events of March 19, 2000, one must review, in perhaps more detail than would otherwise be necessary, the history of the relationship between the parties. It is also necessary to review their individual accounts of the events of March 19th. [5] Mr. Pedersen is presently 30 years old. He was born and raised in the Kimberley area. He has been employed since 1992 as a forestry technician. In July 2002, he was seriously injured in an industrial accident and it is questionable whether he will ever be able to return to work. [6] In August 1997, Mr. Pedersen bought a home at 802 ‑ 5th Avenue in Kimberley. Before purchasing his own home, Mr. Pedersen had, for the most part, lived with his parents. Ms. Greidanus was his first serious romantic relationship. [7] While he had smoked marijuana occasionally in high school and college, Mr. Pedersen had not used the substance since the early 1990s. Mr. Pedersen did not smoke cigarettes and it was not his habit to carry with him matches or a lighter. [8] Mr. Pedersen did drink alcohol. He described himself as a "weekend warrior". Most nights when he drank, Mr. Pedersen would end up drunk. Mr. Pedersen said his drinking habits were similar to those of his friends. [9] Mr. Pedersen was part of a large social circle of young adults. Members of the group actively participated in outdoor recreational

activities, including skiing, hiking and mountaineering. Members of the group commonly used alcohol and marijuana. [10] Ms. Greidanus is presently 27 years old. She is 6 feet in height, somewhat taller than Mr. Pedersen. A native of Ontario, she moved to Kimberley in January 1997, to join her boyfriend, Mr. Gibson, who had come to Kimberley the previous year. [11] Mr. Gibson had, by then, become a member of the same social circle as Mr. Pedersen. Ms. Greidanus soon joined the circle. She worked in the winter at the Kimberley ski hill and tree‑planted in the summer. She was also an active participant in outdoor activities, including skiing, hiking, canoeing, rock‑climbing and horseback riding. Ms. Greidanus smoked both cigarettes and marijuana. She would commonly smoke marijuana more than once a day. [12] In August 1997, Ms. Greidanus and Mr. Gibson rented a room in Mr. Pedersen's home. Shortly thereafter, Mr. Gibson accepted a teaching job in Korea. Before he left, Mr. Gibson arranged with Mr. Pedersen that Ms. Greidanus would continue to stay in the premises at a rent of $300 a month, plus long distance telephone charges. [13] In July 1998, about eight months into the tenancy, the relationship between Mr. Pedersen and Ms. Greidanus changed. They became lovers. They remained so until October 1998. [14] Ms. Greidanus admitted that she was not in love with Mr. Pedersen when they

became sexually intimate and was never, in fact, in love with him. She did not want their relationship to be public knowledge. She did not feel initially that Mr. Pedersen was in love with her, but over time Ms. Greidanus came to realize that he was much more serious about the relationship than she was. [15] In early October 1998, shortly before Ms. Greidanus was leaving for a holiday in Ontario, Mr. Pedersen told her that he loved her. Ms. Greidanus did not respond. After she returned from her trip to Ontario, Ms. Greidanus ended the relationship and moved out of Mr. Pedersen's home. [16] Mr. Pedersen testified that his relationship with Ms. Greidanus meant a great deal to him. He believed that it was the same on her part. Mr. Pedersen said the relationship between them was very close and Ms. Greidanus had never told him otherwise. [17] Mr. Pedersen says that when she returned from her Ontario holiday, Ms. Greidanus stayed at the house for another two to three weeks. She moved out just prior to Mr. Gibson returning from Korea. Mr. Pedersen thought she moved out, at least in part, because of Mr. Gibson's imminent return. [18] Over the next several months, the relationship between Ms. Greidanus and Mr. Pedersen remained friendly. They continued to spend time together. [19] In February 1999, a close friend of Mr. Pedersen's committed suicide. Mr. Pedersen did not respond well to the news and, in part, felt some responsibility for his friend's death. Ms. Greidanus attempted to help him through this difficult situation.

THE WORSENING RELATIONSHIP [20] Over time, the relationship between Ms. Greidanus and Mr. Pedersen soured. Mr. Pedersen claimed that Ms. Greidanus owed him for rent and long distance telephone calls. Ms. Greidanus, while acknowledging some indebtedness, appeared to be in no hurry to satisfy her obligations. Requests for payment by Mr. Pedersen would be followed by promises to pay that were not kept. Discussions concerning the outstanding debt were often acrimonious. [21] As Mr. Pedersen and Ms. Greidanus travelled in the same social circle, they continued to see each other. Mr. Pedersen did not always react well when in the company of Ms. Greidanus. On more than one occasion, Mr. Pedersen's anger got the best of him and he launched verbal tirades at Ms. Greidanus. [22] This, in turn, upset other members of their social circle. Mr. Pedersen began having less involvement with his old social group because he would no longer be invited to participate if Ms. Greidanus was to be present. [23] An incident took place at Kelly Bidder's home in July 1999 during "JulyFest", a local celebration that appears to involve much drinking and partying. On the evening in question, Mr. Pedersen had spent much of the evening drinking with several others at the home of Mr. Bidder. Ms. Greidanus arrived at the premises some time after midnight. Mr. Pedersen acknowledges that he was drunk by that

time. [24] When Ms. Greidanus arrived, Mr. Pedersen was sitting at the kitchen table. Ms. Greidanus sat down beside him and said, "Hey loser, time for you to leave." Mr. Pedersen left. He returned, however, shortly thereafter. Slamming the door, he said in a loud voice, "I do not have to leave because of this bitch." Mr. Pedersen then came up to Ms. Greidanus and shouted various insulting obscenities at her. [25] Mr. Bidder restrained Mr. Pedersen and dragged him into another room. After a struggle, Mr. Bidder gained control of him. Ms. Greidanus left and Mr. Pedersen spent the night on a couch at Mr. Bidder's premises. [26] The following morning Mr. Pedersen attended at Ms. Greidanus' residence at Chapman Camp. He came to apologize. Although there is some dispute as to what occurred, I am satisfied that on that occasion Ms. Greidanus struck Mr. Pedersen while attempting to force him from her home. During the altercation, Mr. Pedersen put his foot in the door and Ms. Greidanus slammed the door on his leg several times to force him to leave. [27] Later that day Mr. Pedersen again returned to Ms. Greidanus' home. They sat on the sun deck and Mr. Pedersen apologized to Ms. Greidanus for his behaviour the previous evening. Mr. Pedersen told her that it was too hard for him to live in the same town as her. He said he could not deal with being around her. Mr. Pedersen was crying and

upset during this conversation. [28] Another incident took place at the Ozone pub in October 1999. According to Ms. Greidanus, she was sitting at a table in the pub when Mr. Pedersen arrived and started screaming at her, calling her profane names. Ms. Greidanus says the bouncers then escorted Mr. Pedersen from the bar. Ms. Greidanus says that Mr. Pedersen subsequently returned and again started yelling. Ms. Greidanus says Mr. Pedersen told her that she had a week to leave town, or he would come and get her. The bouncers again removed Mr. Pedersen from the pub. As they dragged him away, Mr. Pedersen kept repeating, "You're dead, you're dead, you're fucking dead." [29] Mr. Pedersen acknowledges being somewhat tipsy that evening. Mr. Pedersen says that when he saw Ms. Greidanus, he was shocked because he believed that she had moved back to Ontario. He says that he initially yelled at Ms. Greidanus, "What the hell are you doing here?" The bouncer then asked him to leave. [30] Mr. Pedersen says he went out to the parking lot, but returned shortly thereafter and had a further conversation with Ms. Greidanus. Mr. Pedersen says it was a loud conversation because of the music, but he denies that he was shouting. Mr. Pedersen says he started talking about his friend who had recently committed suicide and how tough it had been on him. Mr. Pedersen says that Ms. Greidanus had a smirk on

her face and seemed to be enjoying his discomfort. Mr. Pedersen says he then lost control and screamed at Ms. Greidanus, "You're going to fucking die," and that he screamed it over and over as the bouncers removed him from the premises. Mr. Pedersen says he did not mean it as a serious threat. Mr. Pedersen says that Ms. Greidanus liked to see him hurt and liked to provoke him. [31] A further incident occurred at the Ozone pub in February 2000. On that occasion, Mr. Pedersen had words with both Mr. Bidder and Ms. Greidanus. Mr. Pedersen told Mr. Bidder that he had figured something out. Mr. Pedersen said, "My life is shit and is going down - I am going down and I am going to take as many people as I can down with me." After repeating that comment, Mr. Pedersen then said to Mr. Bidder, "Death, death, death. Kill, kill, kill. Is that was you want to hear, Kelly? And you are at the top of my list." [32] After leaving Mr. Bidder, Mr. Pedersen walked over to where Ms. Greidanus was sitting. According to Ms. Greidanus, Mr. Pedersen came directly up to her, pointing and yelling. Mr. Pedersen told her that he wanted his money and, "If [he] did not get [his] money tomorrow, [he] was going to come over to [her] place with a crowbar." [33] Mr. Pedersen does not deny making the comments to Mr. Bidder and to Ms. Greidanus. Mr. Pedersen says, however, that the comments were made in a clearly

sarcastic manner and were not intended literally. [34] It does not appear that Ms. Greidanus was particularly frightened by this incident. The following day she attended alone at Mr. Pedersen's home and made a payment towards the outstanding rent. [35] Not all meetings between Ms. Greidanus and Mr. Pedersen turned ugly. While Mr. Pedersen withdrew, to a certain extent, from the social group because of his difficulties with Ms. Greidanus, they would still see each other from time to time on social and other occasions without incident. [36] In the fall of 1999, Ms. Greidanus was living in an area near Red's Country Store. On at least one, or possibly two, occasions, Mr. Pedersen came to the premises late at night. It was not uncommon for members of the social circle to drop in on each other in the early hours of the morning. There were people awake in the downstairs of the premises. Mr. Pedersen went to Ms. Greidanus' bedroom and spoke to her. [37] According to Ms. Greidanus, on the first of these occasions, Mr. Pedersen told her that it was too hard for him to live in the same town as her. He said it was too hard for him to see her out enjoying herself. He said it was his town and that she should leave. [38] Ms. Greidanus had, in fact, been thinking about returning to Ontario and Mr. Pedersen certainly encouraged her in that regard. Ms. Greidanus says that during the

conversation in her bedroom he offered her money to leave town. She says she made it clear that she did not want Mr. Pedersen's money and had to ask him several times to leave and finally had to push him before he ultimately departed. [39] Mr. Pedersen acknowledges going to Ms. Greidanus' room on one occasion. He says that Ms. Greidanus told him that she was thinking about going back to Ontario and he offered her money if she needed assistance. Mr. Pedersen thought it would be easier on him if Ms. Greidanus left Kimberley. Mr. Pedersen agrees that Ms. Greidanus became angry when he offered her money and that she had to push him before he would leave. [40] Evidence was called from Tom Shipley. He first met Mr. Pedersen some 15 years ago and, over time, they became close friends. They enjoyed skiing and other outdoor activities together. Mr. Shipley considered Mr. Pedersen a good friend. Mr. Shipley also became friends with Ms. Greidanus when she moved to the Kimberley area. [41] Mr. Shipley did not learn about the relationship between Ms. Greidanus and Mr. Pedersen until after it had ended and Ms. Greidanus had moved out of Mr. Pedersen's house. Mr. Shipley said he had discussions with Mr. Pedersen on several occasions concerning Ms. Greidanus. He says that initially after the break‑up Mr. Pedersen was upset, but over time he became more angry and obsessed with Ms.

Greidanus. [42] Mr. Shipley recalled an incident on the ski‑lift, either at the end of 1999 or early 2000, when Mr. Pedersen started to talk about Ms. Greidanus. Mr. Pedersen got angry and clenched his fist. According to Mr. Shipley, Mr. Pedersen said that she was ruining or had ruined his life. He also said to Mr. Shipley that it had to be either her or him. Mr. Shipley was concerned that Mr. Pedersen might be suicidal and tried without success to convince him to seek help. [43] Mr. Pedersen says that by October 1999 he had lost interest in Ms. Greidanus and there was nothing between them. His actions suggest otherwise. I accept Mr. Shipley's evidence that as time passed Mr. Pedersen became increasingly obsessed with Ms. Greidanus.

THE ASSAULT AND FIRE A. Ms. Greidanus' Evidence [44] On Friday, March 17, 2000, Mr. Pedersen telephoned Ms. Greidanus, asking again for payment of the outstanding debt. Ms. Greidanus advised Mr. Pedersen that she would pay him on the following Monday. It was a short, not particularly pleasant, conversation. [45] Ms. Greidanus had been living since November 1999 with Ms. Davies and Ms. Ducharme in rented premises located at 612 ‑ 5th Avenue in Kimberley, approximately two blocks from Mr. Pedersen's home. Constable Campbell, a member of the local R.C.M.P. detachment, lived across the street. [46] The home had a living area on the main floor and two bedrooms upstairs. Admission to the house was by a side door entrance adjacent to the kitchen. A sofa divided the living room. In front of the sofa was located a television and a VCR. Behind the sofa was a small table upon which was situated a portable CD player and a separate radio/tape player. Those items were plugged into a power bar, that was in turn plugged into an electrical receptacle located in the northwest corner on the north wall. Also on this table were various sheets of paper and other combustibles. [47] A craft table was also located in this area. It was situated under the window on the west wall. It also contained potential combustibles. There was a table lamp on the craft table and there was also a hanging lamp in the

northwest corner. There were some candles located in the living room. Packages of matches were on tables in the living room. [48] Mr. Pedersen had come to the house on but one occasion. He had done so looking for Ms. Ducharme's boyfriend, whom he mistakenly believed was living there. On that occasion, he had come to the house well past 1:00 a.m. The house was in darkness. He had knocked on the door. Ms. Ducharme opened the door and told him her boyfriend was not there. Mr. Pedersen then left without incident. He did not actually enter into the house. [49] I should note that Ms. Davies and Ms. Ducharme were originally plaintiffs in this proceeding. They discontinued their claims prior to the commencement of trial. On the weekend of the fire, both Ms. Davies and Ms. Ducharme were away. Ms. Davies' vehicle was in the driveway. [50] On March 18, 2000, Ms. Greidanus worked from 4:00 p.m. to 10:00 p.m. at the Kimberley Alpine Resort. Ms. Greidanus says she got up at approximately 11:30 a.m. that Saturday morning and left for work at 3:30 p.m. Ms. Greidanus denies consuming any drugs or alcohol prior to going to work or at work. She testified that she went directly home after work. [51] Ms. Greidanus testified that she got home between 10:30 p.m. and 11:00 p.m. and that she believed she had been driven home by one of her co‑workers. However, on March 22, 2000, some three days after

the fire, Ms. Greidanus had told Brian Brown, an independent fire investigator, that after work she had gone to the Bauern Haus, a restaurant located on the ski hill, from where she got a ride home from a friend around 11:00 p.m. [52] Ms. Greidanus says that when she arrived home there were no lights on. She turned on the kitchen light, said "hello" to her dog and went into the living room, where she turned on the television. Ms. Greidanus testified that she smoked a cigarette while sitting on a chair located on the southeast side of the living room. Ms. Greidanus said she then lay down on the sofa that divides the living room and fell asleep while watching television. Ms. Greidanus says she did not consume any alcohol or drugs after she came home, nor did she turn on the CD player or radio. She says she did not light any candles. [53] Ms. Greidanus says she woke up between 12:30 a.m. and 1:00 a.m. Ms. Greidanus says she then locked the entrance door, turned off the kitchen light, turned off the light that she had turned on in the living room, turned the television off and went to bed. Ms. Greidanus says that when she went to bed the bottom of the house was in darkness, illuminated only by an outside streetlight. Ms. Greidanus says she wore to bed the shirt that she had been wearing all day, together with her bra and panties. [54] When Mr. Brown interviewed her, Ms. Greidanus

indicated that she had watched television until approximately 1:30 a.m. and that she had smoked her last cigarette at around 1:00 a.m. She did not tell the investigator that she had fallen asleep. [55] Ms. Greidanus says she woke up hearing banging on the downstairs kitchen door. She testified that her initial thought was that one of her roommates had come home and was having trouble with the door. Ms. Greidanus said she heard banging, a period of silence, and then banging again. [56] Ms. Greidanus says she became aware of a light being turned on in the hallway at the bottom of the stairs. She heard footsteps coming up the stairs and again assumed it was her roommate. Ms. Greidanus heard someone go into her roommate's room. The person seemed to be rummaging around the room. Ms. Greidanus leaned over to see who was in her roommate's room and she saw Mr. Pedersen. He was then on the landing between the two upstairs bedrooms. [57] Ms. Greidanus says she asked Mr. Pedersen, "What the hell are you doing in my house?" To which he responded, "I told you I was coming - I am here." Ms. Greidanus says Mr. Pedersen looked irate. His eyes were bulging and his fists and teeth were clenched. [58] Ms. Greidanus says Mr. Pedersen marched into her room, jumped on top of her on the bed and pinned her down, straddling her. Ms. Greidanus says Mr. Pedersen then grabbed her hair and started bashing

her head into the wall. She said Mr. Pedersen was saying crazy things, like "I was going to meet Satan and find out that Satan is good." Ms. Greidanus says that Mr. Pedersen further said, "I am going to kill you - you know I have a shotgun." Ms. Greidanus believes Mr. Pedersen also said something about killing himself. [59] Ms. Greidanus says that as she came to realize the seriousness of the situation, she started to struggle with Mr. Pedersen. Ms. Greidanus was trying to get him off of her, but Mr. Pedersen still had her by the hair. Somehow, Ms. Greidanus slipped out of the shirt she was wearing. Ms. Greidanus says as the wrestling match continued, Mr. Pedersen continued to restrain her by holding her hair. Ms. Greidanus says she bit Mr. Pedersen on the arm as hard as she could, but he still would not let go. She then grabbed Mr. Pedersen's testicles and squeezed. Mr. Pedersen let go. He eventually passed out. Ms. Greidanus then got up and ran downstairs, through the living room and out the kitchen door. [60] As she departed the house, Ms. Greidanus noticed no lights on in the living room. She saw no evidence of a fire, nor did she smell smoke. Ms. Greidanus says the kitchen light was now on. The kitchen door was wide open. [61] As she ran down the driveway, she saw Mr. Pedersen's truck in the driveway with the engine running. She ran across the road to the home of Constable

Campbell. She was now dressed only in her bra and panties, having lost her shirt in the struggle. [62] Constable Campbell took her into his house. He got a blanket for Ms. Greidanus and some clothes. Ms. Greidanus saw Mr. Pedersen walk down the driveway, get into his truck and drive away. She indicates that approximately 10 minutes had passed from the time she left the bedroom until she saw Mr. Pedersen driving away. [63] About two minutes later, Ms. Greidanus saw an orange glow in the living room of her house. Constable Campbell returned shortly thereafter and asked her if there was anything of value in the house because it was on fire. [64] Later that morning, Ms. Greidanus gave a statement to the police. She did not accuse Mr. Pedersen of starting the fire. She subsequently gave a second statement to Constable Campbell. [65] An officer took her to the hospital, where she was examined for a possible concussion. Ms. Greidanus says that as a result of the attack some of her hair was pulled out, the side of her head and her jaw were sore and she had bruises and scratches on her arms and shoulders. No medical documentation or pictures were introduced to corroborate her injuries. [66] Constable Campbell did not testify in this proceeding. He is now stationed in New Brunswick. At the commencement of the trial, plaintiff's counsel applied to have his evidence given by

video-conferencing. The defence opposed the application submitting that Constable Campbell should give his evidence in person. [67] A difficulty in taking his evidence by video-conferencing was that the defence intended to refer various documents to Constable Campbell, none of which were in Constable Campbell's possession. A further difficulty that became apparent in the course of the application was the likelihood that Constable Campbell would be on the witness stand for at least a day or more. It was not clear whether the video‑conference facility was going to be available for the length of time required to take the constable's evidence. Faced with these problems, plaintiff's counsel withdrew his request before I could rule on his application. In these circumstances, I draw no adverse inferences from the absence of Constable Campbell. B. Mr. Pedersen's Evidence [68] Mr. Pedersen tells a much different story. He testified that on Saturday, March 18, 2000, he had skied until three or four in the afternoon. He then met Paul Barolet about 4:30 p.m. at the Canadian Hotel. They stayed approximately an hour or so and Mr. Pedersen had one or two pints of beer. [69] They then went to the Snowdrift Café for dinner and Mr. Pedersen may have had a beer with his meal. Following dinner, they went to the local arena and watched a hockey game. During the course of the game, Mr. Pedersen

drank five or six beers. At the hockey game they met up with Mr. Shipley. [70] After the game Mr. Pedersen, Mr. Barolet and Mr. Shipley went to the Rockies Pub, arriving around 10:30 p.m. They remained at the pub for two to three hours, leaving near closing. At Rockies, Mr. Pedersen drank three pints of beer followed by three or four gin and tonic. [71] Mr. Pedersen and Mr. Barolet, together with two young ladies they had met in the bar, then went to Mr. Barolet's home. At Mr. Barolet's, Mr. Pedersen was given a beer, but he only had a sip or two. [72] Mr. Pedersen fell asleep at Mr. Barolet's. When he woke up, he left Mr. Barolet's home intending to drive home, a trip of approximately 10 minutes. It was now around 3:30 a.m. He acknowledges that he should not have been driving. [73] On his way home, Mr. Pedersen passed Ms. Greidanus' house. Mr. Pedersen says the kitchen light and a light in the living room were on in the premises. He did not observe anybody in the house. [74] Mr. Pedersen continued driving to his own house. He testified that when he got to his driveway, he thought he would go back to Ms. Greidanus' house so he could tell her roommates that Ms. Greidanus had promised to pay him the money she owed on Monday. He believed that the roommates were home as he had observed Ms. Davies' car in the driveway. [75] When Mr. Pedersen returned to Ms. Greidanus' home, he says

lights were still on in the living room and in the kitchen. He parked his vehicle in the driveway behind Ms. Davies' car. He left his vehicle running. Mr. Pedersen was aware that there was a police car parked in front of the house across the street. [76] Mr. Pedersen says he knocked on the kitchen door, but there was no response. He says he did not know who was at home, although he expected at least Ms. Davies, because her car was in the driveway. He knocked again with no response. Becoming frustrated because no one answered, Mr. Pedersen then pounded on the door with his fists. He then kicked the door. Mr. Pedersen says it was not his intention to kick the door in, but in fact the door opened when he kicked it. [77] Mr. Pedersen says he felt foolish that he had kicked in the door. He says he entered the premises to warn the occupants that the door was broken and with the intent of offering to fix the door. He says once in the home he yelled loudly, "Is anybody here?" He received no response. [78] Mr. Pedersen went into the living room and observed that a light was on in the northwest corner. In the living room he observed the smell of a perfume that he had known Ms. Greidanus to wear; he did not however smell smoke, cigarettes, or the odour of marijuana. [79] Mr. Pedersen said he proceeded up the stairs to the upstairs bedrooms. He says he did not turn on the light. Mr.

Pedersen says that while he was upstairs, he looked first into the bedroom on the left‑hand side. Mr. Pedersen says that Ms. Greidanus then confronted him in the hallway. He says Ms. Greidanus, on seeing him said, "What the fuck are you doing here, asshole?" Mr. Pedersen says he walked towards her and she backed away and sat on the bed. [80] Mr. Pedersen says he then brought up the issue of money and spoke of all the people to whom Ms. Greidanus owed money. Mr. Pedersen says he said to Ms. Greidanus, "Everybody loves Satan until they get to know her." Mr. Pedersen says "Satan" was a nickname by which several people referred to Ms. Greidanus. He says it was inspired from the South Park television show. [81] Mr. Pedersen says Ms. Greidanus was yelling at him and began to wave her hands. Mr. Pedersen says Ms. Greidanus began to get up from the bed and he grabbed her wrists in a defensive manoeuvre. He says he believed that Ms. Greidanus was about to strike him. [82] Mr. Pedersen says they then fell backwards and ended up on the bed. Mr. Pedersen says Ms. Greidanus grabbed him by the testicles and squeezed and also bit him on the arm. Mr. Pedersen says he grabbed her hair to try to get away. Mr. Pedersen says Ms. Greidanus grabbed his testicles a second time. Mr. Pedersen said he was punching her to try to make her let go. [83] Mr. Pedersen's next recollection is waking up on the

floor of Ms. Greidanus' bedroom. He says the entire fight had taken place on the bed and he has no recollection of how he got to the floor. Mr. Pedersen does not know how long he was unconscious. [84] Mr. Pedersen says that he did not intend to break into the home or to assault Ms. Greidanus. Mr. Pedersen says his actions in the bedroom were all defensive in nature. [85] Mr. Pedersen says that when he regained consciousness he was feeling horrible and was in considerable pain. He says he was angry because of the assault that had been committed on him. [86] Mr. Pedersen says he got up, went downstairs through the living room and into the kitchen, where he grabbed a ski pole. He says he then went back upstairs with the ski pole yelling for Ms. Greidanus. Mr. Pedersen testified that he wanted to take Ms. Greidanus to the police and charge her with assault. He thought the ski pole would be good protection. [87] When Mr. Pedersen returned upstairs and could not find Ms. Greidanus, he assumed that she had left the premises. Mr. Pedersen says he then shattered the ski pole against the doorframe of Ms. Greidanus' room and left the premises. [88] Mr. Pedersen testified that he walked through the living room on at least three occasions. He says he observed no change in lighting in the living room, no smell of smoke and no visible fire. [89] Mr. Pedersen denies that before leaving he

started a fire. Mr. Pedersen says when he left he intended to have Ms. Greidanus charged with assault. He says he assumed Ms. Greidanus had gone to Constable Campbell's home. Mr. Pedersen testified he did not go to Constable Campbell's home because he wanted to seek out a policeman who had not talked to Ms. Greidanus. [90] Mr. Pedersen says that when he returned home he contacted two friends and asked them come to his house, where he told his friends that he needed the police. His friends advised that there were police cars down the street and they returned with two police officers, including Constable Campbell. [91] Constable Campbell accused Mr. Pedersen of arson. Mr. Pedersen says he did not understand what Constable Campbell was speaking about and told Constable Campbell that this was an assault, not an arson case. Mr. Pedersen was taken away in a police car. The police car drove by the Greidanus' house and, according to Mr. Pedersen, it is only then that he learned of the fire.

THE WALKLEY REPORT [92] Mr. Walkley was directed by the Regional Fire Commissioner to investigate the fire. He prepared a report dated September 7, 2000, for the Office of the Fire Commissioner. The plaintiff in this proceeding tendered his report. [93] Mr. Walkley concluded that the point of origin of the fire was in the northwest corner of the living room of the residence and that the igniting object was some form of open‑flame device. In his opinion, it was a set fire. Mr. Walkley's opinion was the subject of intense cross‑examination. I will comment more fully on Mr. Walkley's report in the course of these reasons.

THE CRIMINAL PROCEEDINGS [94] On April 17, 2000 a four count information was sworn against Mr. Pedersen. He was charged with arson, breaking and entering, assault, and uttering a death threat. [95] The criminal trial proceeded in May 2001 before Mr. Justice Melnick and a jury. After the close of the defence's case, Mr. Justice Melnick entered a judicial stay of proceedings on the arson charge because of the failure of the Crown to preserve remnants of certain electrical components and wiring. See: R. v. Pedersen, [2001] B.C.J. No. 1229 (S.C.). The jury acquitted Mr. Pedersen on all other charges.

THE CIVIL PROCEEDINGS [96] The civil action was commenced on May 17, 2000. Plaintiffs' counsel actively pushed the action ahead. On November 22, 2000, he set the matter for trial commencing January 30, 2001. This date was set without the agreement of the defendant's counsel. [97] As other cases had priority, the matter did not proceed on January 30, 2001. Plaintiffs' counsel then re‑set the matter for February 19, 2001. This was done over the objection of the defendant's counsel. [98] There was considerable skirmishing between the parties in Chambers. The criminal trial, which had originally been scheduled for November 2001, was brought forward at the defendant's request to May 2001. Arrangements were then made to have the civil case heard before Mr. Justice Melnick in the summer of 2001. Following the criminal trial, Mr. Justice Melnick recused himself and the civil trial was set for November 2002. That trial date was subsequently adjourned. The civil trial finally proceeded on May 26, 2003.

ISSUES [99] It is the position of Ms. Greidanus that Mr. Pedersen is liable for assault and for deliberately starting the fire in the premises. She also claims punitive damages. [100] Mr. Pedersen claims damages against Ms. Greidanus for assault. He also brings claims against Ms. Greidanus for malicious prosecution, in regard to both the criminal and the civil proceedings, and for abuse of process. He seeks to recover under those heads general damages, together with the amounts he has had to pay to defend himself in the criminal and civil proceedings. Those sums exceed $100,000. He claims a further $3,000 for rent and outstanding telephone charges. He also seeks punitive damages. [101] I intend to first deal with the assault allegations that each party has brought against the other. I will then turn to the balance of plaintiff's claims, and finally I will turn to the issues raised by the counterclaim.

THE ASSAULT CLAIMS [102] Both sides accuse the other of assault. Although Ms. Greidanus clearly emerged victorious from the physical combat, there is a serious dispute as to how the battle began. For the reasons that follow, I am unable to accept in its entirety the evidence of either party. [103] In their pleadings, neither party distinguished between claims of assault and claims in battery. The distinction was explained by McEwan J. in Verigin v. Regnier, [1996] B.C.J. No. 2130 (S.C.) at ¶ 67: Battery is the intentional infliction of a harmful or offensive contact upon the body of another. Assault, properly speaking, is restricted to the tort of creating an imminent apprehension of harmful or offensive contact. In common speech "assault" is often understood to include battery. The term was used in that sense at various points in the trial and in submission. [104] As a result of discussions with counsel during the course of submissions, I held that their respective pleadings would be amended to include claims in battery. [105] Although neither party pled self‑defence, it is clear that they each believed they were forced by acts of the other to defend themselves. Self‑defence has long been recognized as a defence to claims in battery. It is available not only when harm is actually threatened, but also when a person reasonably believes that an attack is imminent. See: A.M.

Linden, Canadian Tort Law, 6th ed. at 77‑78. [106] In evaluating the evidence given by the parties concerning the commencement of the physical altercation, it is important to note that prior to the morning of March 19, 2000, Mr. Pedersen had never physically raised a hand to Ms. Greidanus. As he approached the Greidanus home, he noticed that Ms. Davies' car was in the driveway and the police car was across the street. Mr. Pedersen had no reason to believe that Ms. Greidanus was home by herself. [107] When he went the house, Mr. Pedersen initially attempted for some time to gain entry by knocking on the door. Ms. Greidanus acknowledges hearing those knocks. He says that when he kicked at the door it was not his intention to break into the home; he only continued into the premises because he recognized that he had broken the door and he wished to warn the occupants that the house was no longer secure. Once he was in the house, he was quite vocal in attempting to bring his presence to the attention of whoever might be at home. I accept this portion of Mr. Pedersen's evidence. [108] I also accept that at least the kitchen light had been left on in the premises. I find that Ms. Greidanus is mistaken in her recollection that all the downstairs lights were turned off. I do not believe that Mr. Pedersen would have attended at the premises at such an early hour if the house was in total

darkness. [109] I do not accept the evidence of Ms. Greidanus that she was unaware of who had entered her house until Mr. Pedersen appeared in her bedroom. She would have heard his yelling. I believe that prior to Mr. Pedersen coming up the stairs, she knew that it was Mr. Pedersen who was in the house. She, of course, was under no obligation to acknowledge his presence or otherwise respond to Mr. Pedersen's calls. Indeed, given her past experiences with Mr. Pedersen and the fact that she was in the house alone, it is most understandable why she would remain in her bedroom and stay mute hoping that Mr. Pedersen would leave before discovering she was at home. [110] I do not accept Mr. Pedersen's evidence as to when he first saw Ms. Greidanus. He claims that after she first confronted him in the hallway, she then proceeded to back into her bedroom as insults were exchanged between them. The difficulty with Mr. Pedersen's evidence is that it makes little sense that Ms. Greidanus, if she confronted Mr. Pedersen in the hallway, would then retreat and sit on her bed. She was taller than and as physically fit as Mr. Pedersen. There would be no reason for her to retreat. [111] I also have, however, difficulties with Ms. Greidanus' version of how the fight started. Her evidence was that after she asked him what he was doing there, Mr. Pedersen commented, "I told you I was coming, I am

here"; marched into her room; jumped on top of her; and commenced to physically assault her. [112] Such conduct would be clearly inconsistent with any previous acts of Mr. Pedersen. Although he had in the past been verbally abusive to Ms. Greidanus and, as I have found, remained obsessed with her, he had never struck her. Further, to accept Ms. Greidanus' evidence would be to conclude that Mr. Pedersen attended at the house that evening with the intention of causing Ms. Greidanus physical harm. [113] I do not believe that was his intention. He did not know she was home alone in the house. On those prior occasions when Mr. Pedersen had been verbally abusive, he had been provoked by comments or actions of Ms. Greidanus. Although such provocation does not excuse Mr. Pedersen's actions on those occasions, it does go some way to explain them. [114] I conclude that what most probably occurred was that when they first confronted each other, he was in the hallway and she was sitting up on her bed. After her initial insulting comments, Mr. Pedersen quickly forgot the damaged door and began to verbally berate Ms. Greidanus. Ms. Greidanus responded in kind. As she began to rise up from the bed, Mr. Pedersen grabbed her wrists. [115] I find that Mr. Pedersen, at the time that he grabbed Ms. Greidanus, reasonably believed that an attack by her on him was imminent. Even if he was mistaken,

he is entitled to be excused as long he made a reasonable error. Given his experience the morning following "JulyFest", I find that Mr. Pedersen had a reasonable belief that he was going to be attacked and accordingly he was justified in grabbing Ms. Greidanus in the manner that he did. [116] Ms. Greidanus, in turn, in my opinion, was equally justified, once her wrists were grabbed, to believe that she was under attack. As the violence escalated between them, each party believed they were attempting to protect their own person. In my opinion, the force applied by both Ms. Greidanus and Mr. Pedersen, given the battle in which they were embroiled, could not be considered excessive. They were each entitled to defend themselves against the other, and to the extent that they delivered or received significant blows or injury, it was not out of proportion to the urgency of the occasion. I do not find that either in the circumstances used excess force. See: Wackett v. Calder (1965), 51 D.L.R. (2d) 598 (B.C.C.A.) at 602. [117] In the result, therefore, I find that the claims brought by each party against the other for assault and for battery are dismissed.

THE FIRE CLAIM [118] In a civil action that depends upon proof that the other party has committed a criminal offence, the burden is discharged by proof of the fact in issue by a balance of probabilities and not proof beyond reasonable doubt as required in a criminal prosecution. See: Hanes v. The Wawanesa Mutual Insurance Company, [1963] S.C.R.

154. In Hanes, the court adopted the view of Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 (C.A.) at 459, that even though the standard of proof was not as high as in a criminal charge, the degree of probability had to be commensurate with the gravity of the offence. [119] No more than 10 minutes after she left the premises, Ms. Greidanus observed Mr. Pedersen drive away. Approximately two minutes after Mr. Pedersen's departure, Ms. Greidanus observed an orange glow in the living room of her home. Shortly thereafter, Constable Campbell told her the house was on fire. [120] Plaintiff's counsel submits that the evidence can lead to no other conclusion than a finding that Mr. Pedersen had started the fire. He relies on the report of Mr. Walkley and the common sense submission that residential houses do not spontaneously burst into flame in the middle of the night. [121] Plaintiff's counsel submits that Mr. Pedersen had motive, means and the exclusive opportunity to start the fire. He says following the fight, Mr. Pedersen was in physical pain and in a fragile emotional state. Counsel suggests that after awakening on the floor of Ms. Greidanus' bedroom, Mr. Pedersen, driven by hurt, anger and frustration, sought revenge on Ms. Greidanus by burning down her home. [122] Counsel for the defendant, although acknowledging that the case against Mr. Pedersen might give rise to

suspicion, says there is no evidence that ties Mr. Pedersen to the fire. He points out that there was no evidence that an accelerant was used, nor is there evidence of multiple points of origin, both of which are common characteristics of a set fire. The statement of defence alleges that the fire was caused or contributed to by the use of defective electrical components in proximity to combustible material, which foreseeably created a risk of fire. [123] In paragraph 16 of the counterclaim, the defence goes further and alleges that the fire foreseeably occurred through the negligent, reckless or intentional acts or omissions of Ms. Greidanus. The particulars alleged include that Ms. Greidanus set the fire by use of a liquid or other accelerant at or about the time Mr. Pedersen was unconscious in the house, or alternatively, she caused the fire by improper use of smoking materials, candles, or other lit or open‑flame devices. [124] In building its submission that Ms. Greidanus intentionally set the fire, the defence submits that the case against her is stronger than that against Mr. Pedersen. It submits that she was very angry; she had some history of prior violence toward the defendant; she was smoking prior to the fire; she was on the sofa near the point of origin; she was aware of non‑hydrocarbon accelerants and their location, including rubbing alcohol in the bathroom; she

knew exactly where matches and paper were located; she was familiar with the fact that a fire on the floor behind the sofa might not initially be seen in or outside the house until it was too late; she was still wearing her day clothes; she had been outside her house 7 - 10 minutes before an orange glow was seen; and she did not initially accuse the defendant of setting the fire when it would have been timely for her to do so. [125] Defence counsel also submits that an adverse inference should be drawn against Ms. Greidanus. He suggests that Ms. Greidanus either misled Mr. Brown or is misleading this court, given certain contradictory answers she gave concerning her activities on March 18 and 19. He also suggests, partly because of the clothes she was wearing, that Ms. Greidanus fell asleep downstairs and only woke up on Mr. Pedersen's arrival, at which time she hurried upstairs. He suggests that Ms. Greidanus was likely smoking either cigarettes or marijuana and in her haste to go upstairs may have failed to extinguish the smoking material. [126] The defence does acknowledge that there is no direct evidence that Ms. Greidanus intentionally set the fire, but says that the circumstantial evidence points more clearly to Ms. Greidanus than Mr. Pedersen. It further submits that even if Ms. Greidanus did not act intentionally, there is substantial evidence concerning a possible

negligent or accidental electrical fire, or a fire started by Ms. Greidanus' negligent use of smoking materials and/or candles. [127] The evidence does indicate that Ms. Greidanus is a smoker and she indeed acknowledged smoking that evening after she returned home. The evidence also indicates that Ms. Greidanus was a heavy user of marijuana. Ms. Greidanus denies having used marijuana on the evening in question. The testimony of Mr. Pedersen, who denies smelling the odour of marijuana when he was in the premises, supports her evidence. Similarly, Ms. Greidanus denies having lit a candle on the night in question. Mr. Pedersen has no recollection of seeing a lit candle while he was in the premises. [128] The most telling evidence against the submissions that the fire may have been started either deliberately or accidentally by Ms. Greidanus is the evidence of Mr. Pedersen. He was in the house well after Ms. Greidanus left. He testified that he went through the living room on at least three occasions. At no time did he smell smoke or observe fire. If Ms. Greidanus started the fire prior to her departure, that fire would have been clearly evident to Mr. Pedersen. [129] Ms. Greidanus had no reason to intentionally burn down her own home and destroy her own and her roommates' possessions. There is no evidence, just speculation, to support the proposition that she acted negligently. I

reject the submissions that Ms. Greidanus in some manner caused the subject fire. In reaching this conclusion I am aware of and have taken into account the various inconsistencies in Ms. Greidanus' evidence. [130] The defence is most critical of the report prepared by Mr. Walkley. I should note that Mr. Walkley is an independent witness. He conducted his examination on behalf of the Office of the Fire Commissioner. His report was not prepared at the request of, or on behalf of, the plaintiff. Indeed, plaintiff's counsel did not meet with Mr. Walkley prior to him giving testimony at this trial. [131] It was Mr. Walkley's conclusion that this was a set fire. He concluded that the point of origin was in the area of the living room behind where the sofa was located. In his report, Mr. Walkley concluded that all accidental igniting objects had been eliminated, leaving the only reasonable conclusion that the igniting object was an open‑flame device. Mr. Walkley also noted that he could not find any equipment in the point of origin that could generate heat or cause ignition, thereby leading him to conclude that the form of ignition had been introduced into the point of origin. [132] The defence says that Mr. Walkley failed to properly investigate matters essential for the elimination of all other causes. It submits that Mr. Walkley gave contradictory evidence on material points,

thereby rendering his evidence incapable of contributing to the discharge of the burden of proof faced by the plaintiff. [133] The defence says that Mr. Walkley did not make enquiries to accurately and completely determine the location of combustible matter within the area of origin. It says that Mr. Walkley also failed to make enquiries as to the possibility that the fire could have been started by smoking or the use of candles. It says that Mr. Walkley made no enquiries in regard to the electrical components or the use of extension cords. [134] Mr. Walkley spoke briefly to Ms. Greidanus the afternoon of the fire. He did not interview either of her roommates prior to preparing his report. Mr. Walkley was not aware of all the furniture located behind the sofa. He agrees that such information would have been helpful. [135] The defence called Mr. Schick, an electrician who had examined the wiring at the request of Mr. Walkley. Mr. Schick found the internal wiring to the premises to be in good order. He testified that only one circuit‑breaker in the house had tripped. That circuit‑breaker serviced the electrical wall outlet in the northwest corner of the premises, close to Mr. Walkley's point of origin. It is the receptacle into which the power cord which operated the CD player and radio/tape player was plugged. Mr. Schick testified that the circuit‑breaker could have tripped

either as a result of the fire or as a result of a malfunction in the electrical components prior to the fire. He could not determine which cause was the more likely. The defence submits that this evidence supports their position that the fire could have been caused by an electrical malfunction. [136] Although I have some concerns with Mr. Walkley's report, his evidence is not without value. He concluded that the point of origin of the fire was in the west end of the living room. He reached this conclusion based on his observations that the heaviest fire damage and lowest burning in the building were in this area. The fire travel indicators and the depth of charring also indicate that the fire started in the west end of the living room and spread upwards and outwards to the rest of the living room and, eventually, to the bedrooms on the second floor. Burn patterns on the back of the couch were considerably deeper and heavier than those on the front of the couch, further indicating fire travel in the living room as being from west to east. This evidence is uncontradicted. I accept Mr. Walkley's conclusion as to the point of origin of the fire. [137] I do accept the defence submission that I cannot safely rely on Mr. Walkley's report in and of itself in relation to his conclusion that the igniting object was some form of open‑flame device. I agree that Mr. Walkley's investigation

was not sufficiently thorough that all other potential causes could be eliminated. That said, I do accept Mr. Walkley's opinion that an open‑flame device is a possible source of ignition. I also accept that the fire scene was consistent with a set fire. [138] The defence also submits that by reading into evidence certain answers given by the defendant on his examination for discovery, the plaintiff must be taken to have adopted that evidence. It relies on Tsatsos v. Johnson (1970), 74 W.W.R. 315 (B.C.S.C.). [139] I do not agree. This is not a case like Tsatsos in which the plaintiff put into evidence contradictory accounts of what took place. In this case the defendant is the only person who knows what took place in the residence after Ms. Greidanus departed. I must consider and weigh that evidence with all other proven circumstances to see whether it should be accepted or rejected. See: Atkins v. Ulrichsen (1973), 37 D.L.R. (3d) 368 (B.C.S.C.). [140] I find that the plaintiff has established to a degree of probability commensurate with the gravity of the offence that Mr. Pedersen started the fire. He had the means and the exclusive opportunity. In the living room combustibles and matches were readily available. Mr. Pedersen was obsessed with and had previously threatened violence to Ms. Greidanus. I am satisfied that, humiliated by a physically beating, an enraged Mr. Pedersen

started the fire. His shattering of the ski pole is clear evidence of his loss of control. [141] I am mindful of the suggestions made by defence counsel of other ways the fire could have started. The difficulty is that there is no factual foundation to support the suggestion that there were problems with the electrical components. There is no evidence of any prior failures. There is no evidence that the CD player or radio were even operating that evening. There is no evidence to support the theory that a cigarette or candle could have started the fire. The defence submissions are no more than speculation. [142] Most telling is the discovery of the fire within two minutes of Mr. Pedersen's departure from the house. It strains credibility, given the events of that evening, that moments after Mr. Pedersen leaves the home, a fire would have started by some accidental means. As noted by the plaintiff's counsel, residential houses do not spontaneously combust.

DAMAGES ARISING FROM THE FIRE [143] Ms. Greidanus lost many personal possessions in the fire. Her cat died. She submitted a list of well over a 100 individual items that she valued on a replacement‑cost basis at $19,830. [144] Prior to trial, plaintiff's counsel had advised that Ms. Greidanus had no documents in support of her claim. This assertion was repeated at a pre‑trial conference that took place on May 9, 2003, some two weeks before the start of the trial. Unfortunately, apparently unknown to her counsel, the plaintiff had, in fact, replaced many of the items damaged in the fire and, on the eve of trial, provided to her counsel, copies of receipts for the items she had replaced. I was told approximately one‑third of the damaged goods had been replaced. [145] Defendant's counsel, who was not provided with the receipts until well into the trial, quite properly took the position that he could not possibly, in the time available, review the receipts in any meaningful way. I reviewed the book of receipts and was satisfied that the position of counsel was not unreasonable. Most reluctantly, I agreed that the damage claim would be adjourned and proceed, if necessary, at a later date. [146] Given the conclusions I have reached on the fire, it will now be necessary to set the damage claim for a further hearing. Given the nature of the claim being put forward, and the relatively limited amounts involved, I would hope that counsel could agree on damages. If they cannot, they will have to make arrangements to set the matter before me so I may hear such additional evidence as may be necessary to decide this issue.

PUNITIVE DAMAGES [147] The plaintiff claims punitive damages. The law concerning punitive damages was recently canvassed by the Supreme Court of Canada in Whitten v. Pilot Insurance Co., [2002] 1 S.C.R.

595. Mr. Justice Binnie wrote the majority judgment. He set out at ¶ 94 the factors that should be taken into account by the trier of fact in assessing punitive damages. Punitive damages must be rationally proportionate to the ends sought to be achieved. See: Whitten at ¶ 111‑123. [148] I am satisfied that Mr. Pedersen's action of starting the fire was misconduct that represents a marked departure from ordinary standards of decent behaviour. His conduct calls out for punishment and denunciation. [149] In considering the appropriate award of punitive damages I have taken into account that Mr. Pedersen's conduct was not planned in advance. He did not attend the Greidanus home with the intent of doing violence. Nor can it be said that Mr. Pedersen has in any way benefited from his misconduct. Indeed, the costs of his defence in the criminal and civil proceedings are far in excess of any monetary damage he may have caused. An award of punitive damages will carry a significant stigma in the small community in which Mr. Pedersen resides. I have also taken into account that Ms. Greidanus was vulnerable and that the harm directed to her was significant. As a result of the outcome of the criminal proceeding, the defendant has to date suffered no punishment for his actions. [150] After considering all of the above matters, together with the Supreme Court's admonition that moderate awards

are generally sufficient, I award punitive damages in the sum of $10,000. THE DEFENDANT'S COUNTERCLAIM A. Malicious Prosecution - Criminal Proceedings [151] In Nelles v. Ontario, [1989] 2 S.C.R. 170, the Supreme Court of Canada re‑affirmed that the four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution are: (a) the proceeding must have been initiated by the defendant; (b) the proceeding must have been terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; and (d) malice, or a primary purpose other than that of carrying the law into effect. [152] The indictment was sworn against Mr. Pedersen on April 17, 2000. In British Columbia, the decision to lay charges is made by Crown counsel: see s. 4(3) (a) of the Crown Counsel Act, R.S.B.C. 1996, c.

87. To support his submission that an individual complainant can be found to have initiated criminal proceedings, the defendant relies on Petrovich v. Campbell, [1992] B.C.J. No. 20 (S.C.). Petrovich involved an alleged assault on a patron by a bouncer. The patron was adamant that criminal charges be laid. The court, in finding him liable for malicious prosecution, concluded he had initiated the criminal charges. [153] This case, in my respectful opinion, is distinguishable from Petrovich. In Petrovich, the investigating police officers and the Crown counsel involved in laying the charges testified. In this case none of the police officers involved in the investigation were called as witnesses, nor was the Crown counsel who approved the charges. None of the statements taken in the course of the police investigation were introduced, including those given by Ms. Greidanus. No evidence was led as to the reason that criminal charges were laid. Given this lack of an evidentiary foundation, I cannot find that Ms. Greidanus initiated the criminal proceedings. [154] As it is necessary for the defendant to establish all four elements of malicious prosecution in order to succeed, this finding must lead to the dismissal of the malicious prosecution claim insofar as it relates to the criminal proceedings. I need not consider the remaining elements. B. Malicious Prosecution - Civil

Proceedings [155] Whether an action exists for malicious prosecution in civil proceedings is a matter of some doubt. In Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette Inc., [1989] 3 All E.R. 14 (C.A.) the Court of Appeal in England expressed doubts as to the availability of a cause of action for malicious prosecution arising out of civil proceedings. In British Columbia, Lamperson L.J.S.C. (as he then was) in Metz v. Pellegrin, [1990] B.C.J. No. 845 (S.C.) and Lander J. in Olorenshaw v. International Chem‑Pro Industries Inc., [1991] B.C.J. No. 2061 (S.C.) both doubted that a claim could be brought for the malicious prosecution of a civil proceeding. [156] Assuming that such a claim does exist, one of the elements which must be established is that the proceedings are terminated in favour of the party bringing the claim. In this case, the civil proceedings have not been terminated in Mr. Pedersen's favour. In the result, the claim for malicious prosecution of civil proceedings, assuming but not deciding such a claim in law indeed exists, is dismissed. C. Abuse of Process [157] The necessary elements to an abuse of process claim are a collateral improper purpose and a definitive act or threat in furtherance of a purpose that is not a legitimate use of the process. See: Voorhis v. Fifteenth Avenue Properties Ltd., [1999] B.C.J. No. 2799 (S.C.) at ¶ 93. [158] The requirement

of an improper purpose was stressed by Finch J. (as he then was), in D.K. Investments Ltd. v. S.W.S. Investments Ltd. (1984), 59 B.C.L.R. 333 (S.C.), affirmed (1986) 6 B.C.L.R. (2d) 291 (C.A.) at p. 339: The essence of the tort of abuse of process is the misuse or perversion of the Court's process for an extraneous or ulterior purpose. There must be a purpose other than that which the process was designed to serve. [159] The defendant in this case alleges that the improper purpose is the desire of Ms. Greidanus to drive Mr. Pedersen into bankruptcy. Although affidavit material filed by Mr. Pedersen in support of an adjournment application shows the financial hardship he has suffered arising from the criminal and civil proceedings, there is no evidence that Ms. Greidanus was motivated to bring these proceedings for any improper purpose. I am satisfied that Ms. Greidanus brought this action to recover damages for the losses she has suffered. Absent proof that the claim was brought for an ulterior purpose, the claim in abuse of process cannot succeed. The claim for abuse of process is dismissed. D. Rent [160] Mr. Pedersen claims that when she left his premises, Ms. Greidanus owed $3,000 for rent and telephone charges. Ms. Greidanus says that the rent was up to date as of July 1998, when they commenced their sexual relationship. She says that Mr. Pedersen made no request for rent

while that relationship continued. Ms. Greidanus further says that after she left the premises, Mr. Pedersen advised that she owed him $1,000 and she agreed to pay that sum. She made two payments, totaling between $400 and $600. [161] Mr. Pedersen does acknowledge receiving the two payments. He did not indicate exactly how much was received. Mr. Pedersen also agrees that he mentioned the figure of $1,000 to Ms. Greidanus, but says that it was just an interim amount. He does acknowledge that he never mentioned the $3,000 figure to Ms. Greidanus. [162] In the telephone conversation of March 17, 2000, Mr. Pedersen says that Ms. Greidanus agreed to pay him the following Monday the sum of $450. It is Ms. Greidanus' evidence that the Monday payment was to be for the balance then owing. I do not accept Mr. Pedersen's evidence that he was owed more than $1,000 when Ms. Greidanus left his premises. If he had been, I am sure he would have brought the total amount to Ms. Greidanus' attention. He did not do so. I award Mr. Pedersen the sum of $450 on his counterclaim for rent.

COSTS [163] The question of costs was reserved for submissions following the release of this judgment. If the parties are able to come to an agreement on damages in regard to the property loss suffered by Ms. Greidanus in the fire, submissions on costs should be made in writing. If they are unable to conclude such an agreement, and it is necessary to call further evidence before me on that question, then the submissions for costs can be made at that subsequent hearing.

SUMMARY [164] I have made the following orders: (a) The plaintiff's claim in assault is dismissed. (b) The plaintiff is entitled to damages for the destruction of her property in the fire. The amount of such damages remains to be agreed or assessed. (c) Punitive damages are awarded against the defendant in the sum of $10,000. (d) The defendant's claim in assault is dismissed. (e) The defendant's claims for malicious prosecution in regard to both the criminal and civil proceedings are dismissed. (f) The defendant's claim for abuse of process is dismissed. (g) The defendant is awarded $450 in rent. (h) Costs are reserved pending submissions. "R.B.T. Goepel, J." The Honourable Mr. Justice R.B.T. Goepel