Malicious Prosecution

Payne v Mak, 2017 ONSC 243 (CanLII)

[201] In Russell v. York (Regional Municipality) Police Services Board, [2011] O.J. No. 3541 (S.C.J.), D. M. Brown J. (as he then was), said the following, at para. 193:

Non-pecuniary damages for torts such as false arrest, false imprisonment and malicious prosecution are intended to compensate for the deprivation of liberty, public humiliation, loss of reputation and mental anguish. They reflect the nature of the events, the character of the person wronged, and the community where the events occurred. In the 2004 decision of Hanisch v. Canada the British Columbia Court of Appeal regarded an award of general damages for such torts in the amount of $25,000 at the upper end of the scale of appropriate damages. In its 2005 decision in Trudgian v. Bosche the Saskatchewan Court of Appeal regarded the normal range of "substantial" damages for these torts as in the area of $30,000. From my review of the cases submitted by counsel, including the very helpful Table of Cases at Tab 2 of the Defendants' Memorandum & Brief of Facts & Law, I conclude that the upper range for general damages for those torts, absent extraordinary circumstances, falls in the range of $25,000 to $30,000. Although plaintiff's counsel referred me to the decision of our Court of Appeal in Oneil v. Marks in which that court upheld a jury's award of damages for malicious prosecution of $75,000, a close reading of that case reveals that the award for general damages was only $12,500, and that in a case where the plaintiff was put through a criminal trial.

Maxwell v. Wal-Mart Canada Corp., 2013 ABQB 625 (CanLII)

[107] In Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170 at 199, the Supreme Court held that in order to establish the tort of malicious prosecution, a plaintiff must prove that:

a) the proceedings were initiated by the defendant;

b) the proceedings were terminated in favour of the plaintiff;

c) there was no reasonable and probable cause; and

d) malice, or a primary purpose other than that of carrying the law into effect.

[108] The burden on a plaintiff in a malicious prosecution case is onerous and strict: R v Miguna, [2007] OJ No 512 at para 21 (SC).

[109] There is no dispute that the proceedings against the Plaintiff were terminated in his favour.