What is the test for malicious prosecution?

Ontario, Canada


The following excerpt is from Curley v. Taafe, 2018 ONSC 3150 (CanLII):

In St. Jacques v. Doyle, 2008 CanLII 9381, Ferrier J. at paras. 8 and 9 states: Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant. The burden is on the plaintiff to show malice. With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence. The test for malicious prosecution requires that the plaintiff show that the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong motive. Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test.

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