Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs allege that criminal charges were instigated against them maliciously and without reasonable or probable cause.

• Defendants applied to strike the entire claim under Rule 9-5 on grounds it disclosed no reasonable cause of action and was an abuse of process.

• The Court considered whether the facts were so peculiarly within the defendants’ knowledge that independent discretion by Crown counsel was impossible.

• Judge held the plaintiffs’ pleadings, while prolix and flawed, raised arguable issues that warranted adjudication at trial.

• The claim survived due to the legal threshold for malicious prosecution not being plainly unmet at the pleadings stage.

• Costs of the application were awarded to defendants, but the action itself was not dismissed.

Facts and outcome of the case

Background and procedural history
Bradley and Darren Besler filed a civil claim on March 4, 2024, in the Supreme Court of British Columbia, alleging malicious prosecution against various individuals and entities associated with a neighboring commercial mushroom business. The dispute stemmed from tensions over a facility operated by Garnet Valley Holdings Ltd., doing business as What the Fungus Mushrooms, on property adjacent to the Beslers. Complaints about noise, odour, and bylaw compliance led to escalating conflict, culminating in criminal charges laid against the Besler brothers in 2019 for mischief and criminal harassment.

The charges were based on conduct ranging from dust clouds caused by vehicle activity to interference with camera installations. Although both were acquitted of criminal harassment, Darren was initially convicted of mischief, a finding later overturned on appeal in March 2022. That reversal served as a springboard for the plaintiffs’ malicious prosecution lawsuit, which named company owners, employees, and affiliates—including Bartlett Tree Experts, where one defendant was employed.

Allegations and scope of the claim
The claim, detailed in a 25-page Notice of Civil Claim (MP NOCC), alleged that the defendants pressured law enforcement to criminally charge the plaintiffs by supplying false or misleading information. Other allegations included breach of privacy, harassment, zoning violations, unjust enrichment, and vicarious liability. The defendants filed a Rule 9-5 application seeking dismissal of the entire action, asserting the claims were frivolous, vexatious, and devoid of legal foundation.

Legal analysis and reasoning
Justice Hardwick reviewed the four-part test for malicious prosecution, particularly whether the prosecution was initiated by the defendants in such a way that the Crown had no genuine discretion. The Court noted that proving this at the pleadings stage is a high bar. Although the plaintiffs' pleadings were described as prolix and legally deficient in structure, they nonetheless included material facts which, if proven, could satisfy the tort’s elements.

The Court acknowledged prior rulings in the related criminal and appellate cases and found it inappropriate to strike the entire claim based solely on pleadings. The judge emphasized that while many parts of the claim might later be struck or fail, it was not “plain and obvious” that the whole action would.

Outcome and costs
The motion to strike the entire malicious prosecution claim was dismissed. However, due to the excessive and unfocused nature of the pleadings—despite earlier warnings in a related case—the Court awarded costs of the application to the defendants, payable in the cause (i.e., not immediately). Bartlett Tree Experts, having not participated in the motion, was exempted from the costs order. No damages were awarded at this stage, as the ruling pertained only to the procedural motion.