Malicious Prosecution and Abuse of Process: What They Are and How They Differ

Malicious prosecution and abuse of process are two torts that protect individuals from improper use of the legal system. While each focuses on different aspects of wrongdoing, they both serve to deter parties from weaponizing courts for spiteful or ulterior motives. Below, we discuss what these torts entail, how they are proven, who can be held liable, and how they differ.

What Is Malicious Prosecution?

Malicious prosecution is an intentional tort designed to curb the misuse of the criminal justice process. Its overarching purpose is to compensate individuals who have been wrongfully subjected to criminal proceedings that either had no reasonable basis or were initiated primarily for improper motives, such as personal vengeance or spite.

Key Policy Rationale

• Protection from unjustified legal jeopardy
  Malicious prosecution ensures that innocent individuals are not left without a remedy if they’ve been hauled into court on spurious charges.

• Balance with prosecutorial discretion
  Courts are careful in applying this tort so as not to undermine the necessary independence of Crown prosecutors or deter legitimate complaints to the police.

Elements of Malicious Prosecution

Canadian courts generally agree on four elements, distilled from leading cases such as Nelles v. Ontario and Miazga v. Kvello Estate. To succeed in a malicious prosecution claim, a plaintiff (P) must prove four elements on a balance of probabilities. These elements ensure that only genuinely abusive criminal proceedings—not honest mistakes or well-founded prosecutions—lead to liability.

1. Initiation or Continuation of Proceedings by the Defendant (D)

   • D must have been “actively instrumental” in setting the criminal process in motion or continuing an existing prosecution.
     
     
   • Against a Crown prosecutor, this requirement can be met by showing that the prosecutor decided to proceed with or adopt charges laid by police or another party.
     
     

2. Favourable Termination of Proceedings

   • The criminal proceedings must have ended in a way that can be considered a victory or favourable outcome for P (e.g., acquittal, withdrawal, stay, or discharge at a preliminary hearing).
     
     
   • If there’s a negotiated resolution or plea bargain, courts look closely at the circumstances to see if the resolution truly favours P.
     
     

3. Lack of Reasonable and Probable Grounds

   • P must show that D lacked reasonable and probable cause to prosecute. This standard includes both a subjective and an objective component:
     
     
     • Subjective: D must have actually believed there was cause to proceed.
     • Objective: A prudent person in D’s position would also need to believe the case could succeed beyond a reasonable doubt in court.
       
       
   • The onus rests on P to prove that such grounds were absent.
     
     

4. Malice or an Improper Purpose

   • Malice, in this context, is more than negligence or recklessness; it requires an improper purpose or motive.
     
     
   • A Crown prosecutor, for instance, must be shown to have stepped out of the role of a “minister of justice.” Merely being mistaken or negligent does not suffice.
     
     
   • Malice can sometimes be inferred if there was a glaring lack of objective grounds, but a plaintiff must still establish an improper motive—like ill will, spite, or intentional abuse of the criminal process.
     
     

Only when these four elements converge is a claim for malicious prosecution likely to succeed. Because it scrutinizes the decision to initiate or carry on criminal charges, courts are cautious to ensure the claim isn’t merely a second-guessing of prosecutorial discretion.

Who Can Be Sued for Malicious Prosecution?

It’s often assumed that only the police or the Crown can be sued for malicious prosecution, but liability can extend to any person or entity who actively instigates or encourages baseless criminal proceedings out of malice.

• Private Complainants
  A private individual who knowingly provides false or misleading evidence in order to secure criminal charges may be liable if the remaining elements—especially absence of reasonable grounds and malice—are met.

• Police Officers
  While officers are expected to investigate and lay charges when they believe a crime has been committed, a plaintiff can sue if the officer “procured” the charges without reasonable or probable cause and acted from an improper motive.

• Crown Prosecutors
  Although prosecutorial discretion is broad, Crown attorneys can be held accountable if they proceed with a case they know to be unsupported by reasonable grounds and driven by an ulterior motive. Courts will require clear proof, given the importance of maintaining prosecutors’ independence.

• Corporate Entities or Employers
  Companies accusing ex-employees of criminal misconduct—like theft or fraud—may face malicious prosecution claims if they persist despite contrary evidence or if they act from malice rather than genuine concern.

Abuse of Process: A Related but Distinct Tort

What Is Abuse of Process?

Abuse of process involves the misuse or manipulation of court procedures for a purpose not intended by law. Whereas malicious prosecution targets the wrongful initiation or continuation of criminal charges, abuse of process can occur in any type of legal proceeding—criminal or civil—when the process itself is hijacked for an improper aim.

Core Elements to Prove Abuse of Process

1. Use of a Legal Process
   The defendant must have set the wheels of litigation or criminal prosecution in motion, such as filing a lawsuit, criminal charge, or making certain motions in court.

2. Collateral and Improper Purpose
   The plaintiff must show that the defendant employed the court’s process mainly to achieve something outside the legitimate scope of the proceeding (e.g., extortion, harassment, or forcing an unrelated concession).

3. Intentional or Willful Act
   Negligent or careless filings typically won’t suffice. The defendant’s actions must be intentional and directed at achieving an ulterior objective through the judicial system.

How Abuse of Process Differs from Malicious Prosecution

• Scope
  Malicious prosecution specifically addresses wrongful criminal proceedings. Abuse of process can arise in both civil and criminal contexts, wherever legal mechanisms are misapplied.

• Focus
  Malicious prosecution hinges on whether there were reasonable and probable grounds for the criminal charges and whether the defendant acted with malice. Abuse of process emphasizes whether the proceedings (even if valid at the outset) were twisted to serve an illegitimate end.

• Remedial Goals
  Malicious prosecution stops unfounded criminal charges from being brought maliciously. Abuse of process addresses misuse of the court’s tools, regardless of whether the underlying case had some merit or not, if a collateral aim overshadowed the genuine pursuit of justice.

Practical Tips for Plaintiffs and Defendants

If You Believe You Have a Claim

• Collect Evidence of Malice or Improper Purpose
  Courts don’t grant malicious prosecution or abuse of process claims lightly. Written communications, witness statements, and documented timelines can help establish a lack of reasonable grounds and the presence of improper motives.

• Show Favourable Termination (Malicious Prosecution)
  For malicious prosecution specifically, be prepared to detail how the criminal proceedings ended in your favour—and why that outcome indicates the charges were baseless from the start.

• Demonstrate Collateral Purpose (Abuse of Process)
  If alleging abuse of process, gather proof that the defendant used the court proceeding to achieve a goal external to the legal dispute, like blackmail or harassment.

If You’re Facing Allegations

• Establish Reasonable Grounds
  Show that any charges were rooted in legitimate evidence or circumstances, and that you believed in good faith that the prosecution or lawsuit was warranted.

• Highlight Honest Mistakes vs. Malice
  Being incorrect or negligent does not automatically amount to malicious intent. Demonstrate that any errors were genuine misunderstandings or oversights rather than deliberate attempts to harm.

• Emphasize Proper Motives
  For abuse of process claims, underscore that you pursued the legal process to resolve a genuine dispute, not to secure an unrelated advantage over the plaintiff.

Final Thoughts

Both malicious prosecution and abuse of process protect the integrity of Canada’s legal system by preventing individuals from being dragged into baseless proceedings. However, courts balance this protection against the need to allow law enforcement and litigants to act without excessive fear of lawsuits. Consequently, each tort requires a high level of proof—demonstrating malicious intent or a collateral purpose rather than mere error or negligence.

When properly applied, these torts offer a vital remedy for those who have been subjected to groundless and harmful legal actions. If you suspect you’ve experienced malicious prosecution or abuse of process, or if you’ve been accused of either, seeking legal advice early can help clarify your rights and responsibilities.

How Grigoras Law Can Help

If you believe you were unjustly prosecuted or subjected to legal action for an improper purpose—or if you’re facing allegations of malicious prosecution or abuse of process—Grigoras Law is ready to assist. Our firm can:

• Assess Your Case: We’ll evaluate the strength of your evidence to determine if the high legal threshold for these torts is met.
  
  
• Build a Robust Strategy: Whether pursuing or defending a claim, we help gather essential documents, witness testimonies, and expert insights.
  
  
• Negotiate or Advocate in Court: We’ll aim to resolve disputes efficiently while safeguarding your rights, whether through negotiation, mediation, or litigation.
  
  

Contact Grigoras Law today for guidance on malicious prosecution, abuse of process, and other complex legal matters. We are committed to helping you navigate these difficult situations and protecting the integrity of the legal system.