The Uncertain Scope of Malicious Prosecution: Insights from Canada
Tort Law Review, March 2016, Forthcoming
35 Pages Posted: 5 Feb 2016
Date Written: February 4, 2016
In the last fifteen years, courts throughout the commonwealth have been struggling to redefine the scope of malicious prosecution. The vexing question is whether the cause of action may lie for wrongful administrative and civil proceedings, or whether it is restricted to criminal ones. This is exemplified by a number of divergent judgments in the United Kingdom and Australia, which are very difficult to reconcile on principled grounds. This paper brings the Canadian experience to bear on this issue through an empirical analysis of cases from Ontario, which extended malicious prosecution to administrative proceedings 25 years ago and thus offers a natural experiment of the implications of broadening the tort. This analysis shows that fears about opening the floodgates of litigation are unsubstantiated. Most claims in the sample did not make it to trial and three-quarters of them were dismissed. Furthermore, defendants usually prevailed on pre-trial motions to dismiss, which suggests that baseless claims may be disposed of quickly. Not surprisingly, the most common ground for dismissal was absence of malice, which indicates that the tort is sufficiently onerous to keep it in check. In addition to this empirical analysis, the article examines both the early and more recent case law, concluding that defining the scope of the tort based on the nature of the underlying proceeding is unsupportable. Specifically, such a categorical approach produces inconsistent and arbitrary outcomes that have little to do with the tort’s policy rationale. And malicious prosecution fills a real gap in the law because other torts do not apply, meaning that without it victims of wrongful administrative or civil proceedings would be left uncompensated.
Keywords: Tort Law, Malicious Prosecution
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