A tort which compensates a person for the malicious, unfounded and unsuccesful institution of criminal or disciplinary proceedings.
Quoting from the Supreme Court of Canada decision in Nelles v. Ontario, 1989 2 SCR 170 (published at canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html) , the Alberta Court of Appeal, in 2006 ABCA 157 (Radford v Stewart), said:
"There are four elements to the tort of malicious prosecution: the prosecution must have been initiated by the defendant, the proceedings must have been terminated in favour of the plaintiff, there must be an absence of reasonable and probable cause and there must be malice or a primary purpose other than that of carrying the law into effect."
In 1999, the Alberta Court of Queen's Bench, in Chopra v. T. Eaton Co. (240 A.R. 201) adopted these words in relation to this tort:
"The underlying basis for actions founded on malicious prosecution is the allegation of facts which, if believed, would establish abuse of the judicial process while acting out of malice and without reasonable and probable cause and which judicial process did not result in a finding of guilt of the party alleging the abuse."
In Remedies in Tort, 2007, Volume 1, Chapter 15 (Carswell, Editor Rainaldi), the authors state:
"Traditionally, the proceedings must have resulted in economic loss to the plaintiff, involved him in scandal or subjected him to the possibility of imprisonment. As a result, most proceedings invove criminal prosecutions although there is no bindiung authority that this must be so. The courts have recognized malicious prosecution actions in the area of bankruptcy on the basis that, like criminal prosecutions, injury to the reputation of the plaintiff occurs before the plaintiff is given an opportunity to rebut the allegations against him."
Malicious prosecution claims have succeeded when unfounded and malicious complaints have been made to professional associations, such as in the 2006 decision of PEI's Supreme Court, published at 768 APR 88, Griffin v the City of Summerside, and in which the above extract from Remedies in Tort was relied upon.
"By far, the majority of cases of malicious prosecution are found to originate in a criminal context. However, there is no authority which has been cited which restricts a malicious prosecution action to a criminal proceeding. The case at bar arises from a disciplinary hearing against Griffin. It is common ground among all the parties, with which I agree, that the tort of malicious prosecution is available to the plaintiff, Griffin, in this case. The onus is on him to prove the tort and each and every element of the tort."
In Griffin, the plaintiff made out his malicious prosecution claim and was awarded general damages of $40,000 (plus $33,640 for his costs and disbursements).
► Also a part of Duhaime's Tort & Personal Injury Law Centre.