The plaintiff has the burden of proving the torts of malicious prosecution and negligent investigation; each in accordance with a four-part test. A common element in both tests is the criminal proceedings must have terminated in favour of the plaintiff: Romanic v. Johnson, 2013 ONCA 23 at para. 6. The defendant contends the plaintiff’s communications with his defence lawyer are relevant to understanding how the withdrawal of the charges came about so as to determine whether the termination of the criminal proceedings was in favour of the plaintiff. Implicit in this argument is the defendant’s position that the plaintiff’s representations as to his innocence lacks credibility.
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