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Abuse of Process - Failure to Raise Issue at First Oppourtunity

Skypower CL 1 LP v. Ontario Power Authority (Ont CA, 2015)

The Court of Appeal upheld a motion judge who prohibited plaintiffs from raising new issues in an action that could have been raised at previous judicial review proceedings between the same parties, under the doctrine of abuse of process:
[2] As the motion judge found, the appellants could have raised in the judicial review application—in which they attacked the lawfulness of the Minister’s direction to the OPA, and the resulting changes to the FIT program — the allegation that they were specifically targeted. As this court said in Aba-Alkail v University of Ottawa, 2013 ONCA 633 (CanLII) at para. 12:
…the abuse of process doctrine can apply not only to bar re-litigation of issues that were actually determined in the administrative process, but also to issues that could have been determined (Ontario v. Lipsitz, 2011 ONCA 466 (CanLII) at para. 88). This gives further incentive to raise all issues at the administrative proceeding and to participate "with full vigour".
[3] The motion judge was correct in deciding that the appellants’ failure to raise the targeting allegation in the judicial review proceedings was sufficient for the abuse of process doctrine to apply.

[4] The issue then, is whether the motion judge erred in deciding not to exercise her discretion to permit the action to proceed nevertheless. She found the appellants had a good opportunity to put their position forward in the judicial review proceedings, and the respondents’ refusal to produce certain documents in those proceedings did not result in any unfairness. Her conclusion that “not applying the doctrine of abuse of process in this case would offend the principle of finality and undermine the credibility of the judicial process” is deserving of deference.

[5] We need not deal with the appellants’ other arguments, as the finding of abuse of process forecloses their equitable as well as their legal claims.

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