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Malicious Prosecution

. Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company

In Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company (Ont CA, 2015) the Court of Appeal stated as follows on the elements of the tort of malicious prosecution in an insurance context:
[61] Recall that here the parties expressly contracted for coverage for malicious prosecution. As noted by Sharpe J.A. in Hollinger, the tort of malicious prosecution requires a high level of intentional conduct. The elements of malicious prosecution are as follows: (i) legal proceedings must have been initiated by the defendant; (ii) those proceedings must have terminated in favour of the plaintiff; (iii) the defendant did not have reasonable and probable cause to initiate the proceedings; and (iv) the defendant’s conduct was characterized by malice or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-93; and Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII), 383 D.L.R. (4th) 383, at para. 45.

[62] Furthermore, the target must have suffered an injury. As noted in G.H.L. Fridman’s The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Limited, 2010) at p. 823: “The plaintiff must incur or suffer damage in consequence of the malicious prosecution. If he does not, no action will lie.” Or, as stated in Carolyn Sappideen and Prue Vines, Fleming’s The Law of Torts, 10th ed. (Sydney: Law Book Company, 2011) at p. 706:
We have seen that a claim for malicious prosecution must be founded on actual injury. This must consist either in injury to reputation, presumed wherever the plaintiff was accused of a crime involving scandalous reflection on the plaintiff’s fair name; or injury to the person, as when the plaintiff was imprisoned or put in jeopardy of it; or damage to the plaintiff’s pecuniary interests, such as being put to expense in defending himself against the charge.
[63] In essence, malicious prosecution involves intentional conduct and malice and no action will lie in the absence of actual injury.
. Patinios v. Cammalleri

In Patinios v. Cammalleri (Ont CA, 2017) the Court of Appeal briefly sets out the elements of the tort of malicious prosecution:
[2] The appellant acknowledges that the trial judge applied the correct test for malicious prosecution, set out in Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339. The plaintiff must prove that: (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3) there was an absence of reasonable and probable cause to commence the prosecution; and (4) the defendant's conduct in setting the criminal process in motion was fueled by malice.
. Pate Estate v. Galway-Cavendish and Harvey (Township)

In Pate Estate v. Galway-Cavendish and Harvey (Township) (Ont CA, 2013) the Court of Appeal stated the test for malicious prosecution:
[21] The test for malicious prosecution was set out by the Supreme Court of Canada in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-193:
There are four necessary elements which must be proven for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect.
. Curley v. Taafe

In Curley v. Taafe (Ont CA, 2019) the Court of Appeal stated as follows on the elements of the tort of malicious prosecution:
(1) Malicious prosecution: Initiation of the prosecution

[19] There are four necessary elements which a plaintiff must prove in an action for the intentional tort of malicious prosecution:

1. The proceedings must have been initiated by the defendant

2. The proceedings must have terminated in favour of the plaintiff

3. The plaintiff must show that the proceedings were instituted without reasonable and probable cause and

4. The defendant was actuated by malice.

See Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-93.

[20] The bar for a successful malicious prosecution action is deliberately set high, to avoid unduly chilling the willingness of individuals to seek recourse from the police. As Low J. observed in Correia v. Canac Kitchens (2007), 2007 CanLII 691 (ON SC), 56 C.C.E.L. (3d) 209 (Ont. S.C.), at para. 75, rev’d on other grounds 2008 ONCA 506 (CanLII), 91 O.R. (3d) 353:
It is often observed that the bar is set very high in a claim of malicious prosecution and that a plaintiff has a very difficult burden to meet to make out the claim. It is in the public interest that this be the case because criminal prosecutions are brought not for the benefit of the prosecutor nor for the benefit of the complainant but rather for the common welfare of society. Second, because the standard of proof is very high in a criminal prosecution, there will be many prosecutions brought that do not succeed not because the charge is unfounded but because the standard of proof has not been met. That the threshold for success is high in an action of malicious prosecution therefore balances the public interest in bringing to justice persons who may have broken the law against the private interest of persons who have been wrongfully prosecuted without reasonable grounds and for oblique or improper motives.
[21] As indicated in Nelles, the first element that a plaintiff in an action for malicious prosecution must establish is initiation of the proceedings by the defendant. Simmons J.A. elaborated on the nature of the conduct required to amount to initiation of a prosecution by a private citizen in Kefeli v. Centennial College of Applied Arts and Technology (2000), 23 C.P.C. (5th) 35 (Ont. C.A., in Chambers), at para. 24:
A claim for malicious prosecution requires that the defendant must have initiated the prosecution or set it in motion, and that, ordinarily, the court will view the police officer who laid the charge as being the person who set the prosecution in motion. However, he also submits, correctly, that the complainant may be treated as the prosecutor in exceptional circumstances, including the following:

• the complainant desired and intended that the plaintiff be prosecuted;

• the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and

• the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both. [Citations omitted.] [Footnotes omitted.]
. Biladeau v. Ontario (Attorney General) (Ont CA, 2014)

In Biladeau v. Ontario (Attorney General) (Ont CA, 2014) the Court of Appeal set out the elements of the tort of malicious prosecution as follows:
[17] The tort of malicious prosecution has four elements, namely, that the proceedings must have been: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect: see Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-194; see also Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 3. Only the third and fourth elements are at issue in this appeal.

[18] The third element in a malicious prosecution claim is focused on the trial Crown’s decision to initiate or continue with a criminal prosecution. This decision is one of the “core elements” of prosecutorial discretion, and is “beyond the legitimate reach of the court” unless a Crown prosecutor steps out of his or her role as “minister of justice”: Miazga, at paras. 6-7.

[19] A description of the Crown’s role as “minister of justice” that is often cited in our jurisprudence is found in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24:
It cannot be over‑emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]
[20] In R. v. Trochym, 2007 SCC 6 (CanLII), [2007] 1 S.C.R. 239, at para. 79, the Supreme Court added the following comment on the role of Crown counsel:
Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [Emphasis added.]
[21] The fourth element in a malicious prosecution claim – that the proceedings were motivated by malice – requires that the trial Crown commenced or continued the prosecution with a purpose inconsistent with his or her role as a “minister of justice”: Miazga, at para. 89.
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