Duhaime's Law Dictionary


Malicious Prosecution Definition:

An intentional tort which redresses losses flowing from an unjustified prosecution.

A tort which compensates a person for the malicious, unfounded and unsuccessful institution of criminal or disciplinary proceedings.

In 2009, Canada's Supreme Court wrote, in Miazga:

"Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution....

"Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any damage that results...."

"The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay. However, where the termination does not result from an adjudication on the merits, for example, in the case of a settlement or plea bargain, a live issue may arise whether the termination of the proceedings was in favour of the plaintiff....

"The third element which must be proven by a plaintiff — absence of reasonable and probable cause to commence or continue the prosecution — further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused....

"Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fueled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect."

Quoting from the Supreme Court of Canada decision in Nelles v. Ontario, the Alberta Court of Appeal, in 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, 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, 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 involve criminal prosecutions although there is no binding 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, 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).

French: poursuites abusives.

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