5) False Imprisonment and Malicious Prosecution

False imprisonment and malicious prosecution are mutually exclusive causes of action. False imprisonment lies in respect of the direct detention of another by a non-judicial person or official. On the other hand, if the detention arises, or is continued, as a consequence of the exercise of judicial discretion, malicious prosecution is the appropriate cause of action. The case of Roberts is again illustrative. The defendant's employee reported the incident with the gate to the police and she requested the police to apprehend the plaintiff. The police stopped the plaintiff and detained him at the side of the highway before taking him to a police station. This initial detention was a false imprisonment by the employee because she directed the police who are ministerial officers to apprehend the plaintiff. [Note 32: It was also, of course, a false imprisonment by the police for which they were able to establish the defence of legal authority.] Later, the defendant's employee swore an information before a justice of the peace who ordered that the plaintiff be held in custody. The justice of the peace, unlike a police officer, is a judicial officer. Because the detention after the laying of the information was at the direction of a judicial officer, the only cause of action available against the employee was malicious prosecution. The source of this distinction lies in the fact that false imprisonment derives from the action in trespass, which requires a direct act, and malicious prosecution derives from the action on the case that addresses indirect acts.

6) Malicious Procurement and Execution of a Search Warrant

The tort of malicious procurement of a search warrant is closely related to the tort of malicious prosecution. The foundation of each is the intentional abuse of the processes of the court. The elements of this cause of action were recently discussed by the Privy Council in Gibbs v. Rea. [Note 33: [1998] A.C. 786 (P.C.)] In that case, search warrants were issued on the ground that the plaintiff was suspected of trafficking in drugs or benefiting from the drug trade. The Court held that the plaintiff must establish that the defendant made a successful application for a search warrant, that the defendant had no reasonable and probable cause to make the application (what amounts to reasonable cause depends on the requirements of the legislation controlling the reasons for the grant of the warrant), that the defendant acted with malice, and that the plaintiff suffered damage. The tort was established in Gibbs because there was absolutely no evidence suggesting that the plaintiff was, in any way, involved in the drug trade, and the defendant presented no evidence in justification of their actions.

7) Abuse of Process

Malicious prosecution is usually restricted to criminal and quasi-criminal proceedings. The tort of abuse of process is applicable in respect of the improper use of the civil litigation process. This tort is easier to establish than malicious prosecution because the plaintiff does not have to establish either that the proceedings terminated in the plaintiff's favour or that the plaintiff lacked reasonable and probable cause to bring the action. There are four elements of the tort. First, the defendant must have brought the civil action or process. Second, the proceedings must be brought for a collateral and improper purpose. Third, there must be evidence of some overt act or threat, independent of the litigation, designed to secure the defendant's improper purpose. Fourth, the plaintiff must prove damage.

It is noteworthy that the malicious use of the litigation process is not, in itself, actionable. There must in addition be proof of some overt act, independent of the litigation, that is designed to advance the defendant's wrongful purpose. Imagine, for example, that two rival employees, Jones and Smith, are in line for a future promotion in a workplace that is not governed by a collective bargaining agreement. Jones makes some uncomplimentary remarks about Smith to some of their fellow employees. Smith seizes on this opportunity to instigate an action in defamation against Jones solely for the purpose of disrupting Jones's chances for the promotion. The collateral purpose is established. Later, Smith says to Jones, "If you drop out of the race for the promotion, your litigation woes are over." This satisfies the requirement of an overt act. If Jones drops out of the race and loses the promotion that would otherwise have been his, he suffers damage and the tort is complete.

The requirement of an overt act has proved to be a significant obstacle to plaintiffs. This has led some courts to dispense with the requirement and to emphasize the inherent wrongfulness of the abuse of the right to litigate. Other courts continue to emphasize the importance of establishing an overt act not merely as compelling evidence of malice but as an essential independent control device on the scope of the action. [Note 34: See J. Irvine, "The Resurrection of Tortious Abuse of Process" (1989) 47 C.C.L.T. 217; and Klar, above note 8 at 60.]

8) Intentional Infliction of Nervous Shock

Liability for the intentional infliction of nervous shock was first recognized in the famous case of Wilkinson v. Downton. [Note 35: [1897] 2 Q.B. 57.] In that case, the defendant, by way of a practical joke, told the plaintiff that her husband had been seriously injured in an accident and that he was lying in a tavern with both of his legs broken. The defendant's statements were false. The plaintiff became seriously ill from the shock to her nervous system and she suffered serious and permanent physical consequences. The Court imposed liability on the basis of the defendant's constructive intent to shock and harm the plaintiff.

There are three elements to the tort of intentional infliction of nervous shock. First, there must be outrageous or extreme conduct coupled with an actual or constructive intent to cause a severe impact on the plaintiff's psychological well-being. The circulation or communication of shocking and false information about the plaintiff or her family, unwarranted accusations of criminal wrongdoing or immorality made to the plaintiff, [Note 36: If such statements were made to third parties, they would be defamatory. ] threats of future violence, serious harassment, stalking, and other terrifying conduct are likely to be sufficient to ground liability. Most cases involve a single shocking event similar to that in Wilkinson. However, it was held in Clark v. R. [Note 37: [1994] 3 F.C. 323 (F.C.T.D.).] that proof of a pattern of behaviour involving many incidents of sexual harassment of a female police officer by her male colleagues and supervisors cumulatively causing her nervous shock was sufficient to impose vicarious liability on the Crown.

Second, the plaintiff must prove nervous shock, which is defined, as it is in the tort of negligence, as a recognized psychiatric illness or physical harm. Anguish, worry, and emotional distress are insufficient to support an action. This is a significant obstacle to some plaintiffs who have suffered severe emotional distress. For example, in Radovskis v. Tomm, [Note 38: (1957), 65 Man. R. 61 (Q.B.).] the plaintiff mother was unable to secure a remedy from an offender who had committed a serious sexual assault on her five-year-old daughter because she presented no evidence of illness. In recent years, however, there has been some relaxation in the interpretation of nervous shock and, under the cover of traditional doctrine, the courts are edging towards recognizing severe emotional distress as sufficient damage, particularly where the defendant's conduct is utterly outrageous.

Third, the plaintiff must not have a particular predisposition or susceptibility to shock. This element, however, seems to be receiving less emphasis today and unless there is compelling evidence to the contrary, the plaintiff will be assumed to be of average mental sturdiness.

There is one situation where the tort of intentional infliction of nervous shock is inapplicable. In Frame v. Smith [Note 39: [1987] 2 S.C.R. 99.] the Supreme Court refused to apply it in the circumstances of marriage breakdown and consequential custody and access disputes. The Court held that the risk of vindictive and extortionate litigation was too high and that these disputes were more appropriately resolved by the sophisticated regime of federal and provincial family law, which provides a wide range of remedies to protect the interests of family members.