Prior to 1989, individuals who had been found innocent of crimes were unable to seek civil actions against their prosecutors, regardless of circumstance, due to absolute immunity for Crown Prosecutors and the Attorney General. After the case of Nelles v Ontario, however, the Supreme Court ruled this standard unjustifiable, arguing that it unfairly deprived citizens the right to redress after being severely wronged in Court. Additionally, in Pate Estate v. Galway-Cavendish (Township) 2013 ONCA 669 – the civilian was seen to be the cause of the prosecution as he pressured the police to press charges and withheld exculpatory information.

This is not to say, however, that the Supreme Court decision has opened the floodgates for frivolous lawsuits. On the contrary, the decision of Nelles v Ontario – a case where a nurse, wrongfully accused of murdering four babies at the hospital she worked, sued the government over the high-profile investigation – created a rigid standard for the tort of malicious prosecution, consisting of four elements:

  1. The proceedings must have been initiated by the defendant;
  2. The proceedings must have been terminated in favour of the plaintiff;
  3. The proceedings must have been instituted without reasonable and probable cause; and,
  4. The defendant must have acted out of malice or for some other reason than that of carrying the law into effect.

This standard, which has since come to be known as the Nelles test, has since been used in several landmark cases, establishing a clear precedent. While the first two requirements are reasonably self-explanatory, the remaining two are more difficult to define.

The requirement for reasonable and probable cause requires the plaintiff to demonstrate either that the defendant did not honestly believe the plaintiff was guilty of the crime with which they were charged, or that under normal circumstances, a reasonable person would not have believed a conviction would ensue in a jury trial. The fourth requirement – the hardest to prove in court – required the plaintiff to prove that since the defendant did not honestly or could not reasonably be sure of their guilt, there was some other reason to charge them. Such reasons could include a personal vendetta against the accused or some private advantage such as career advancement or raising their personal profile.

Since the Nelles case, successful suits of malicious prosecution have been relatively rare, largely owing to the strict application of the Nelles test. Recently, however, the tort of malicious prosecution has been extended in Canada to include suits against private individuals, further expanding the potential for restitution after being wrongfully accused and/or tried for a crime. If we consider requirement one of the Nelles test, one could argue that it is impossible for a private citizen to initiate legal proceedings or criminal investigations, as these are the responsibilities of the Crown Prosecutor or the police. In Drainville v Vilchez, however, the Ontario Superior Court ruled that individuals who misrepresent the facts of a case to the police can be seen as the primary instigator, and in the case of the above, Mr. Vilchez was required to compensate Mr. Drainville for all legal fees and other expenses related to the case.

Important to note is that a claim for malicious prosecution may also coincide with a claim for negligent investigation (police) and false arrest/false imprisonment – your lawyer will advise you if this is appropriate for your case.