There is Nothing Civil About Being Malicious – Tort of Malicious Prosecution Extended to Civil Proceedings?

Until recently, it was thought by many that the tort of malicious prosecution did not apply to civil proceedings. Pursuant to the test established in Nelles v. Ontario, [1989] S.C.J. No. 86, 60 DLR 4th 609 (S.C.C.), the elements for a claim of malicious prosecution in Canada are as follows: 1.    The challenged prosecution must have been initiated or continued 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 grounds; and 4.    The Defendant must have acted out of malice or for a primary purpose other than that of carrying the law into effect. A recent decision of the Judicial Committee of the Privy Council has held that the tort of malicious prosecution can apply in the context of civil proceedings (Crawford Adjusters v. Sagicor General Insurance (Cayman) Ltd. et al., 2013 UKPC17). It remains to be seen whether the tort will be expanded in Canada in light of that decision.  It is submitted that the application of the tort within Canada might be unnecessary, especially to cases that are factually similar as Crawford.  In Crawford, the impugned claim involved allegations of conspiracy and fraud.  Such claims, if unsuccessful, already attract severe costs consequences for Plaintiffs in the common law jurisdictions in Canada.