McNabb v. Ontario (Attorney General)

Decision 1: Plead malicious prosecution with full Rule 25.06(8) particularity from the start

The Supreme Court of Canada in Nelles v. The Queen in right of Ontario, [1989] 2 S.C.R. 170 sets out the elements of malicious prosecution against the Crown: (a) proceedings initiated by the defendant; (b) terminated in favour of the plaintiff; (c) absence of reasonable and probable cause; (d) malice or a primary purpose other than carrying the law into effect. Rule 25.06(8) of the Ontario Rules of Civil Procedure requires that fraud and malice be pleaded with full particulars.

Most malicious prosecution claims against the Crown fail at Rule 21 because the plaintiffs plead the elements at a level of generality that does not satisfy Rule 25.06(8). We did not. Our statement of claim, supplemented by particulars in response to the defendants’ demand, set out ten specific factual allegations (summarized at para. 7 of Justice Chapnik’s decision):

1. The OPP attended at Mark Commandant’s home under false pretences;
2. Mr. McNabb was prohibited from making a phone call to a lawyer of his choosing;
3. The OPP and Constable Mulligan directed and conducted an illegal search and seizure of Mr. McNabb’s truck;
4. Mark Commandant was never given an opportunity to give a statement and was never interviewed during the fire investigation, after, or during his detention;
5. Constable Mulligan prepared a false statement which witness Dahlia Sahnatien refused to sign;
6. Ms. Sahnatien’s videotaped statement said the plaintiffs were innocent — ignored;
7. The arrest was based on hearsay (double and triple) from seven individuals;
8. Potential exculpatory witnesses were never interviewed;
9. No alternative suspects were ever considered;
10. The criminal trial judge found no prima facie case.

Justice Chapnik adopted this framing directly (para. 7): “the plaintiffs have provided the defendants with sufficient particulars necessary to support a cause of action for malicious prosecution.” The other allegations — abuse of process, abuse of statutory powers, bad faith, breach of statutory duties — were “subsumed in the allegation of malicious prosecution” (para. 8).

Decision 2: Use the criminal trial judge’s “no prima facie case” finding as the load-bearing fact for the “absence of reasonable and probable cause” element

The hardest Nelles element to plead at the start of a civil action is element (c) — absence of reasonable and probable cause. Plaintiffs typically have to allege facts they will need to prove later, with limited access to the police investigation file. Most cases stumble here.

We anchored on the strongest possible existing finding: Justice Bice’s January 8, 1999 dismissal of the arson charges “on the grounds that there was no evidence for a ‘prima facie’ case.” A judicial finding by a criminal court that the Crown could not even establish a basic factual case is the strongest available evidentiary anchor for the “absence of reasonable and probable cause” element. Justice Chapnik accepted this finding as part of the pleadings (para. 11): “the finding of the trial judge in the criminal trial that there was no evidence to establish a prima facie case was not disputed by the defendants and must be taken as true at this juncture.”

Decision 3: Frame negligence allegations as a continuum from investigation through prosecution to acquittal — bringing them within the “continuance of injury” exception in s. 7(1) PAPA

Section 7(1) of the Public Authorities Protection Act imposes a 6-month limitation period on actions against public authorities. The defendants argued the cause of action arose on the date of arrest (June 25, 1998) — meaning the action commenced June 29, 1999 was already over six months out of time. If accepted, the negligence claims would have been struck.

We anchored on the “continuance of injury or damage” exception in s. 7(1). The pleadings were drafted to frame the negligent investigation and prosecution as a single continuum spanning from June 1998 (arrest) through January 1999 (acquittal). The argument: the negligent acts — ignored exculpatory evidence, false witness statements prepared, no follow-up on alternate suspects — continued throughout the period the prosecution remained alive. The cause of action did not crystallize until the prosecution ended.

Justice Chapnik adopted that framing (para. 23): “the plaintiffs refer to the investigation and prosecution of the plaintiffs — the allegations of negligence form part of a continuum which spans both elements ... I find that the acts complained of continued to the date of the acquittal. Thus, the cause of action for this proceeding arose on January 8, 1999 when the charges were dismissed.” Within the 6-month period from acquittal to filing.

1. Malicious prosecution against the Crown requires full Rule 25.06(8) particularity from the first pleading. The Supreme Court of Canada in Nelles v. Ontario set the elements; Rule 25.06(8) requires malice and fraud to be pleaded with particulars. Most claims fail at Rule 21 because the plaintiff has pleaded the elements at a level of generality that does not satisfy 25.06(8). Don’t plead “malice” in the abstract — plead the specific acts of investigation or prosecution that constitute malice.

2. The criminal trial judge’s findings — particularly a “no prima facie case” dismissal — are the strongest available anchor for the “absence of reasonable and probable cause” element. A judicial finding by a criminal court that the Crown could not establish a basic factual case is conclusive at the pleadings stage and is the most defensible evidentiary basis going into discovery. If your client was acquitted on a procedural ground (rather than a finding on the merits), the malicious prosecution claim becomes substantially harder.

3. The 6-month limitation period in s. 7(1) of the Public Authorities Protection Act has a “continuance of injury” exception — but it is narrow and does not apply uniformly across causes of action. Negligent investigation/prosecution claims, framed as a continuum, can run from acquittal under Al’s Steak House and Tavern. False arrest claims do not — Nicely v. Waterloo Regional Police sets the limitation period from the date of arrest. Plead each cause of action separately and structure the timeline carefully. A single date of acquittal will not save every cause.