Suing for malicious prosecution in civil matters
It's time that Canadian courts reconsider their position on malicious prosecution in civil matters.
The tort of malicious prosecution as a remedy for defendants who have been damaged by unjustifiable criminal proceedings is well established in law. In various common law jurisdictions — namely in the United Kingdom and the United States — it has been gradually expanded to include unjustifiable or frivolous civil suits. Canada, however, has yet to officially recognize this new tort as there are lingering concerns about balancing competing public policy interests between having plaintiffs bring their complaints before courts without fear of recrimination and protecting citizens from the harassment of meritless litigation. However, it’s time that Canadian courts reconsider their position.
In a landmark 2016 decision, Willers v Joyce, the U.K. Supreme Court confirmed in 2016 that a person can sue another for malicious prosecution in civil proceedings. Lord Toulson, delivering the lead judgment, stated “it seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it.
The new tort offers a remedy for defendants who have suffered damages as a result of proceedings brought against them maliciously and without reasonable grounds.
One of the criteria is that proceedings must have been brought without reasonable and probable cause. This is not to say that the defendant must have believed that the proceedings would succeed. It is enough that there was a proper case to lay before the court. Malice is an additional requirement, which is separate from reasonable and probable cause, although they may intertwine. The critical feature here is that the proceedings instituted by the defendant were not a bona fide use of the court's process. Claimants have a heavy burden to discharge in establishing the existence of these elements. Still, a claimant who brings unfounded proceedings for malicious reasons will face the threat of additional sanctions, beyond the usual risk of receiving an adverse cost award.
In recognizing the existence of the malicious civil prosecution tort, the court considered numerous policy issues, including the risk a new tort might provoke a flood of unmeritorious claims, or deter those with valid claims from taking action. The majority ultimately determined that none of these policy concerns were sufficiently strong to displace the need to compensate a person for injury suffered as a result of malicious prosecution.
Many states in the U.S. recognize a similar tort — known as a "vexatious suit" — which involves the same test for alleging malicious prosecution in criminal proceedings.
To many commentators, the crux of proving a vexatious suit lies in proving lack of probable cause. US courts have stated that civil probable cause constitutes a "bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it". Given that no vexatious suit claim can stand where a litigant acts in good faith and takes a reasonable (albeit erroneous) position, proving lack of probable cause requires "an extraordinary showing of impropriety".
The reasonableness of a defendant's action must be judged in light of the total circumstances known to him at the time he initiated the proceeding. The courts view this as placing an onus on the defendant akin to a due diligence requirement, as understood by a reasonable person under the circumstances. To proceed on the basis of a mere rumor without investigation is unreasonable.
In some states — New York, North Carolina and Texas — one must also show the existence of special damages that may be the result, for instance, of the proceeding interfering with the plaintiff's freedom (e.g. arrest), property (e.g. attachment), or other similarly dire consequences going far beyond the physical, psychological or financial demands of defending a law suit. Proving this can be a significant hurdle, but has been deemed necessary by some courts to protect the policy of law, which is intended to afford fair opportunity to all to have their claims heard in court.
Canada has yet to confirm that liability for malicious prosecution can be established in civil proceedings, though the courts here have allowed, in limited contexts, similar claims against individuals other than the Attorney General or Crown prosecutors. In 1990 the Ontario Divisional Court held in Stoffman v Ontario Veterinary Association that a professional regulator could be sued for malicious prosecution based on wrongfully instituted disciplinary proceedings. In a 2013 ruling, Jo v Alberta, the Alberta Court of Queen's Bench imported malicious prosecution claims into child welfare proceedings. Importantly, in Drainville v Vilchez, the Ontario Superior Court of Justice also allowed a claim against an individual who had wrongfully reported an incident to the police and even awarded damages of $23,866.37.
A tort for malicious prosecution in a civil context may be allowable in Canada. In criminal proceedings the test is highly similar to ones relied upon in in the U.K. and in the U.S. (particularly in the states which do not require the "special damages" factor).
Proponents argue that a tort for malicious prosecution would deter bad faith conduct by defendants, encourage pre-litigation due diligence, maintain the integrity of the judicial process by preventing frivolous actions, and preserve judicial economy by limiting baseless actions.
Critics respond that there are other disincentives to frivolous litigation (namely the ability to award costs) and that recognizing a new tort would actually increase, rather than decrease, the burden on the legal system. In Stoffman, the court addressed some of these concerns in the administrative context. Specifically, it stated that the risks of a chilling effect on legitimate prosecutions and opening the floodgates of litigation were mitigated by the onerous and strict burden on the plaintiff with respect to establishing malice and the absence of reasonable and probable cause. What’s more, a recent study in Ontario shows there is no evidence that extending the tort to the administrative context opened the floodgates to litigation in the last 25 years.
While Canada continues to be reluctant to expand the tort of malicious prosecution outside of criminal proceedings, the recent decision of the U.K. Supreme Court in Willers and of the Ontario Superior Court in Drainville, suggest that it may be time for Canada to officially give the tort of malicious prosecution of criminal proceedings a new sibling in the civil context.
Jasmine Lothian is an articling student with MLT Aikins. The author's views are her own.