Can malicious prosecution be a cause of action in civil proceedings?

British Columbia, Canada


The following excerpt is from Lawrence v. Sandilands, 2003 BCSC 211 (CanLII):

Malicious prosecution as a cause of action in civil proceedings rarely succeeds. In Olorenshaw v. International Chem-Pro Industries Inc., [1991] B.C.J. No. 2061 (BCSC), the court noted at p. 2: Malicious prosecution as a cause of action in civil proceedings is even more rare as Fleming comments in the sixth edition of his Law of Torts (at p. 578): Extending the action to wrongful civil proceedings has encountered anything but enthusiastic response. Admittedly, there is nothing in the history of the action nor any pronouncement of binding authority to suggest that the action is categorically confined to criminal proceedings alone. Yet in practice this comes close to being the case in consequence of so interpreting the conventional requirements of legally recognized damage. First of all, it has been peremptorily denied that any civil proceedings could possibly expose the person sued to scandal…. In an ordinary civil action it is not the bringing of the suit that does harm but the publicity of the proceedings, and the fair fame of a person improperly maligned is supposedly cleared in open court by a determination in his favour.

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