Can a Private Person be Guilty of Malicious Prosecution in Ontario?

At the core of the rights protected under the Canadian Charter of Rights and Freedoms are the basic human rights to life, liberty and security of the person (physical and psychological safety). In Canada, no individual can be deprived of these rights except through fair and just legal procedures in accordance with the principles of fundamental justice. It follows that the legal system must hold individuals accountable who intentionally start arbitrary, frivolous, or vexatious lawsuits against another. This article speaks to what happens when a private individual causes an improper (or “malicious”) criminal action against another individual.

An individual may sue another for malicious prosecution so that they may receive financial compensation when a criminal charge is caused to be laid by another, and that person is not convicted of the crime. This article will explain the legal principles in such cases, and when do you need a civil litigation lawyer.

In general, it is very difficult to succeed with a malicious prosecution claim. This is because those suing have the challenging task of proving a negative: that the party that caused the criminal charge to be laid did not have a “reasonable and probable cause” to do so, which is discussed in greater detail below. This is not to say it is impossible, and in Ontario, the test for Malicious Prosecution comes from Nelles v. Ontario, which outlines four elements plaintiffs must establish (the “Nelles test”):

  1. The proceedings must have been initiated by the defendant (complainant)

The first element of the Nelles test is that the criminal proceedings must have been started by the defendant, which is the individual(s) or institution that is sued. When someone wants to sue a private individual for malicious prosecution, they must prove that the following “exceptional circumstances” outlined in Kefeli v. Centennial College of Applied Arts & Technology were present:

  • that the individual that caused the charge to be laid wanted that person to be charged;
  • that there was a lack of independent investigation of the complaint, which may be due to the subject matter such as a complaint of sexual assault where it is difficult for the police to conduct an independent investigation before the individual is charged; and
  • the individual who caused the charge to be laid gave information to the police that was either false, or withheld information that if mentioned, may have caused the charge not to be laid.
  1. The proceedings must have terminated in favour of the plaintiff (accused)

This second requirement is straightforward. The question is whether the accused was ultimately convicted or not. If the criminal case against them was dismissed, the proceedings are said to have been “terminated in their favour” and they meet this necessary element of the test.

  1. The absence of reasonable and probable cause

Nelles states that reasonable and probable cause had both subjective (internal) and objective (external) components. This means that the complainant must have had an actual, honest belief in the guilt of the accused, and that belief must have been reasonable in the circumstances. Proving the absence of these beliefs in the mind of the complainant (at the time of the claims) can be very difficult. One way this has been established is where the complainant gave false information to the police, and it was later proven the complainant knew that the information was false. In this way, they could not have had an honest belief in the guilt of the accused.

  1. Malice, or a primary purpose other than that of carrying the law into effect

The final element the party claiming to have suffered from malicious prosecution must prove is that the complainant brought the criminal claim against them in malice, or with a primary improper purpose.  Importantly, “malice” in this context has a wider meaning than spite or vengeance, and is seen to include any other improper purpose, like gaining a private collateral advantage from having the accused convicted of a crime. An example of this is causing one to be charged with a crime in order to gain an advantage in a divorce proceeding.

Those who initiate malicious prosecutions can face significant legal consequences for the economic, emotional, and reputational harm caused to the innocent person by virtue of the claims brought against them. The damages that a complainant may face include payment of the accused legal fees and punitive damages to punish the complainant. As we see, private citizens can also be liable for bringing malicious criminal claims in “exceptional circumstances.” If you believe you have been maliciously prosecuted for a crime, or you are being accused of bringing a malicious criminal claim, Walker Law’s Civil Litigation Lawyers can help.

Tags: Civil Litigation Law, Appeals, Trials

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