Abuse of Process

1. General
2. Attempts at Defining Abuse of Process
3. Abuse of Process Contrasted with Issue Estoppel and Res Judicata
4. Abuse of Process in Relation to Other Doctrine
5. Abuse of Process and the Rules of Civil Procedure
6. Abuse of Process and Criminal Procedure
7. Abuse of Process as a Tort

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1. General

Abuse of process is a new and relatively ill-defined doctrine, which to me indicates that it is a reflection of legal change. It has developed, and is developing, as a legal 'reason' for dealing with some underaddressed phenomenon of law. So trying to pinpoint it's essence is a bit of a mug's game right now, the easiest way to assess it right now is to just look for cases were judges have 'relied' up it, and characterize those situations.

So here goes.

2. Attempts at Defining Abuse of Process

. Phillion v. Ontario (Attorney General)

In Phillion v. Ontario (Attorney General) (Ont CA, 2014) the Court of Appeal quotes from the Supreme Court of Canada on the elements of abuse of process, citing the close relationship that the doctrine has with issue estoppel, and the broad (even primordial) relation that it bears to 'justice':

[29] The leading case on the doctrine of abuse of process is the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), 2003 SCC 63, [2003] 3 S.C.R. 77. Arbour J. explained, at paras. 35-37, that this doctrine represents the inherent and residual discretion to “prevent an abuse of the court’s process” when other doctrines such as issue estoppel may not be available. At para. 35, she adopted the words of McLachlin J. (as she then was) in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007, as follows:

[A]buse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.

Again, in Phillion, the court commented generally on the nature of abuse of process and that it was only to be found in the clearest of cases:

[49] In my view, the order dismissing the action as an abuse of process must be set aside. Such orders are only to be granted in the clearest cases and only when allowing the action to proceed would bring the administration of justice into disrepute. The motion judge erred in law in concluding that this was a case of relitigation and that it justified the application of the doctrine of abuse of process.

. Plate v. Atlas Copco Canada Inc.

In Plate v. Atlas Copco Canada Inc. (Ont CA, 2019) the Court of Appeal attempted to define abuse of process as follows:

[92] The doctrine of abuse of process provides the court the discretion to prevent re-litigation where necessary to preserve the integrity of the adjudicative process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, at paras. 42-43, 51; Intact Insurance, at para. 28. Re-litigation inevitably has a detrimental effect on the due administration of justice, as it can lead to inconsistent results, devalue finality, and contribute to the unnecessary expenditure of public and private resources, with no guarantee that the second result will be more accurate than the first: C.U.P.E., at paras. 51-52; Intact Insurance, at para. 28.

[93] Thus, re-litigation is to be avoided unless the circumstances dictate that re-litigation is necessary to enhance the credibility and effectiveness of the adjudicative process as a whole: C.U.P.E., at para. 52; Intact Insurance, at para. 28. While there is no closed list of circumstances in which re-litigation is necessary, courts will permit re-litigation if in the specific circumstances “fairness dictates that the original result should not be binding in the new context”: C.U.P.E., at para. 52-53; Intact Insurance, at para. 28.

3. Abuse of Process Contrasted with Issue Estoppel and Res Judicata

. The Catalyst Capital Group Inc. v. VimpelCom Ltd.

In The Catalyst Capital Group Inc. v. VimpelCom Ltd. (Ont CA, 2019) the Court of Appeal states this on the doctrine of abuse of process:

[61] It is well-recognized that the re-litigation of issues that have been before the courts in a previous proceeding will create an abuse of process. As stated by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, at para. 52:

[F]rom the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.

[62] The abuse of process doctrine applies to prevent the attempt to impeach a judicial finding by re-litigation in a different forum: C.U.P.E., at para. 46. It is a flexible doctrine unencumbered by the mutuality of parties requirement that applies to issue estoppel and cause of action estoppel: C.U.P.E., at para. 37. While abuse of process does include a finality requirement, that requirement is met in this case because the Supreme Court dismissed Catalyst’s application for leave to appeal from this court’s decision in the Moyse Action.

[63] The need to protect the integrity of the adjudicative functions of courts compels a bar against re-litigation: C.U.P.E., at para. 43. If re-litigation leads to the same result, there will be a waste of judicial resources, and if it leads to a different result, the inconsistency will undermine the credibility of the judicial process: C.U.P.E., at para. 51. The law thus seeks to avoid re-litigation primarily for two reasons: first, to prevent overlap and wasting judicial resources; and second, to avoid the risk of inconsistent findings: Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367 (CanLII), 24 B.C.L.R. (5th) 4, at para. 71; see also C.U.P.E., at para. 51; Donald J. Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham, ON: LexisNexis Canada Inc., 2015), pp. 217-218.

....

[67] Catalyst’s submission that abuse of process is not intended to prevent the raising of a separate cause of action in a subsequent action should be rejected. As previously discussed, Catalyst could have raised the claims it advances in the Current Action in the Moyse Action. It elected not to. As this court recently held, abuse of process applies where issues “could have been determined” but were not: Winter v. Sherman Estate, 2018 ONCA 703 (CanLII), 42 E.T.R. (4th) 181, at para. 7. Moreover, it also applies to prevent re-litigation of previously decided facts: Winter, at para. 8. As previously stated, for Catalyst to succeed in the Current Action, a court would have to reach different factual findings from those of Newbould J. on the reasons why Catalyst failed to acquire Wind.

[68] Moreover, none of the factors the Supreme Court outlined in C.U.P.E. that would permit re-litigation apply in this case. The Supreme Court stated, at para. 52, that it might be appropriate to permit re-litigation in the following circumstances:

1) When the first proceeding is tainted by fraud or dishonesty;

2) When fresh, new evidence, previously unavailable, conclusively impeaches the original results; or

3) When fairness dictates that the original result should not be binding in the new context.

. Winter v Sherman Estate

In Winter v. Sherman Estate (Ont CA, 2018) the Court of Appeal points out the similarity between abuse of process and issue estoppel, and how abuse of process may be applied where elements of issue estoppel are lacking:

[7] Further, the appellants too narrowly construe the doctrine of abuse of process. This doctrine is flexible and unencumbered by the specific requirements of res judicata or issue estoppel: Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), [2013] 2 S.C.R. 227, at para 40; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2002] 3 S.C.R. 77, at para. 42. Where a precondition for issue estoppel has not been met, such as mutuality of parties, courts have turned to the doctrine of abuse of process to preclude re-litigation of the same issue: C.U.P.E., at para. 37. While the doctrine is similar to issue estoppel in that it can bar litigation of legal and factual issues “that are necessarily bound up with the determination of” an issue in the prior proceeding, abuse of process also applies where issues “could have been determined”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460, at para. 54; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633 (CanLII), 363 D.L.R. (4th) 470, at para. 13; McQuillan v. Native Inter-Tribal Housing Co-Operative Inc. (1998), 1998 CanLII 6408 (ON CA), 42 O.R. (3d) 46 (C.A.), at paras. 8, 10. As such, the doctrine of abuse of process is broader than res judicata and issue estoppel and applies to bar litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37.

[8] We agree with the motion judge that the whole evidentiary underpinning of this action is the same as that of the Royal Trust action and that it would be unfair and an abuse of process to allow the appellants to “in effect, re-litigate their case, with a new theory, to see if this one will succeed where previous theories have failed”. Moreover, the doctrine of abuse of process applies to prevent re-litigation of previously decided facts: Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73 (CanLII), 134 O.R. (3d) 241, at para. 28, leave to appeal refused, [2017] S.C.C.A. No. 98; R. v. Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 S.C.R. 316, at para. 46; C.U.P.E., at para 37. As the motion judge determined, the relief and issues put forward by the appellants in these proceedings “arise from the same relationships and subject matter that have already been dealt with by Perell J. and the Court of Appeal” in the Royal Trust action.

. Skypower CL 1 LP v Ontario Power Authority

In Skypower CL 1 LP v. Ontario Power Authority (Ont CA, 2015) the same theme was canvassed, that abuse of process can apply to prohibit the raising in future of issues which could have been raised in past proceedings:

[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.

. Phillion v. Ontario (Attorney General)

In Phillion v. Ontario (Attorney General) (Ont CA, 2014) the Court of Appeal the court repeats the same theme about the relationship of abuse of process with issue estoppel:

[30] As it relates to this case, the doctrine has been applied to prevent relitigation when the requirements of issue estoppel cannot be met (as is the case here, because the parties to the two proceedings are not the same), but when “allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37. The court emphasized that the focus of the doctrine of abuse of process is less on the parties and more on “the integrity of judicial decision making as a branch of the administration of justice”: C.U.P.E., at para. 43.

But at the same time cites this passage from the Supreme Court of Canada:

[31] In R. v. Mahalingan, 2008 SCC 63 (CanLII), 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 42, McLachlin C.J. expressed the view that the doctrine of abuse of process is vague and variable, pointing out that the Supreme Court has said that “successful reliance on the doctrine will be extremely rare”. Importantly for this appeal, she stated further, at para 42, that:

To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process. [Citation omitted.]

4. Abuse of Process in Relation to Other Doctrine

. Apotex Inc. v. Schering Corporation

In Apotex Inc. v. Schering Corporation (Ont CA, 2018) the Court of Appeal applies it's discretion not to apply the equitable doctrine of issue estoppel if it would an injustice in the case, and in doing so identifies the doctrines of issue estoppel and collateral attack as sub-categories of the larger doctrine of abuse of process:

IV: Analysis

[19] I would note, at the outset, that the scope of the “special circumstances” exception to issue estoppel constitutes a question of law. The standard of review is thus one of correctness: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, at para. 8.

[20] The requirements of, and purpose behind, the doctrine of res judicata were thoroughly canvassed in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460. In that decision, Binnie J. reviewed the historical development of the doctrine and its component parts: cause of action estoppel and issue estoppel. He also reviewed the development of the doctrine of collateral attack.

[21] As set out in Danyluk at para. 25, the preconditions to the operation of issue estoppel are: (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and, (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. It is clear that those three preconditions are met in this case.

[22] However, Binnie J. went on in Danyluk to point out that the court retained a discretion not to apply the doctrine where to do so would work an injustice. More specifically, Binnie J. adopted the observation in British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 1998 CanLII 6467 (BC CA), 159 D.L.R. (4th) 50 (B.C.C.A.) where Finch J.A. said, at para. 32:

It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.

[23] Binnie J. added, at para. 67:

The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.

[24] Finally, Binnie J. concluded with a statement of what he said was the most important factor in deciding whether issue estoppel ought to be applied in any given case. He said, at para. 80:

As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.

[25] The exercise of the discretion to apply issue estoppel was also the subject of the decision of this court in Minott v. O'Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.). Of particular importance, for the purposes of this case, is the observation of Laskin J.A. at para. 51 where he said:

If the decision of a court on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel will not prevent relitigating that issue in subsequent proceedings. It would be unfair to do otherwise.

....

[38] For the reasons set out above, the appellants’ proposed amendments are also not barred by the doctrine of collateral attack. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, the Supreme Court of Canada described issue estoppel and collateral attack as “particular applications of a broader doctrine of abuse of process” [italics added] (at para. 22). Though not entirely interchangeable, the Supreme Court went on to hold the following, at para. 53:

The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result.

As the application of collateral attack in this case would work the same injustice as issue estoppel, it should not be applied to block the proposed pleadings.

5. Abuse of Process and the Rules of Civil Procedure

The doctrine of abuse of process, while ill-defined, has seen itself taken up wholeheartedly by the court rules, here the Rules of Civil Procedure, the main rules of the workhorse Superior Court of Justice. It finds itself in such company as the 'doctrine' of frivolous and vexatious.

Here is a typical such reference [others are located at R2.1.01, R2.1.03, R21.01(3), R25.11 and 37.16]:

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

6. Abuse of Process and Criminal Procedure

. R v Anderson

In R v Anderson (SCC, 2014), which examined the consideration to be given to the aboriginal status of a defendant in sentencing, the Supreme Court of Canada took the oppourtunity to expound on the range of judicial review available against the Crown, particularly with respect to prosecutorial discretion and abuse of process. It held that while all Crown decisions are reviewable for abuse of process, prosecutorial decisions are only reviewable for abuse of process. These passages are essential reading for anyone involved with these issues.

Review of Crown Decision Making

[35] There are two distinct avenues for judicial review of Crown decision making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.

[36] All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process.

(a) Prosecutorial Discretion

[37] This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justice system: Beare, at p. 410; R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749, at pp. 758-62; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at para. 19. In Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 47, the fundamental importance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”. More recently, in Sriskandarajah v. United States of America, 2012 SCC 70 (CanLII), [2012] 3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorial discretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of the criminal law”.

[38] Unfortunately, subsequent to this Court’s decision in Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, confusion has arisen as to what is meant by “prosecutorial discretion” and the law has become cloudy. The present appeal provides an opportunity for clarification.

[39] In Krieger, this Court provided the following description of prosecutorial discretion:

“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence. [para. 43]

[40] The Court went on to provide the following examples of prosecutorial discretion: whether to bring the prosecution of a charge laid by police; whether to enter a stay of proceedings in either a private or public prosecution; whether to accept a guilty plea to a lesser charge; whether to withdraw from criminal proceedings altogether; and whether to take control of a private prosecution (para. 46). The Court continued:

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added; emphasis in original deleted; para. 47.]

[41] Since Krieger, courts have struggled with the distinction between prosecutorial discretion, and tactics and conduct. The use of the word “core” in Krieger has led to a narrow definition of prosecutorial discretion, notwithstanding the expansive language used in Krieger to define the term, namely: “. . . decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (para. 47). Difficulty in defining the term has also led to confusion regarding the standard of review by which particular Crown decisions are to be assessed.

[42] The current appeal presents a good illustration of both problems. As noted earlier, the Newfoundland and Labrador Court of Appeal split on the issue of how to characterize the Crown’s decision to tender the Notice. Welsh J.A. held that it was a matter of “core” prosecutorial discretion, whereas Green C.J.N.L. and Rowe J.A. (following R. v. Gill, 2012 ONCA 607 (CanLII), 112 O.R. (3d) 423, at paras. 54-56), considered it to be a tactical decision and thus “outside [the] core” (para. 49).

[43] The court also diverged on the applicable standard of review. Welsh J.A. held that the distinction between core decisions and decisions falling outside the core was of no consequence as both types of decisions were reviewable on the same standard — the standard articulated in Gill, in which the Ontario Court of Appeal held that the decision to tender the Notice was reviewable if it (1) undermined the integrity of the administration of justice; (2) operated in a manner that rendered the sentencing proceedings fundamentally unfair; (3) was arbitrary; or (4) resulted in a limit on the accused’s liberty that was grossly disproportionate to the state interest in pursuing a particular course of action (Gill, at para. 59). Green C.J.N.L. and Rowe J.A. disagreed. In their view, tactical decisions (decisions “outside the core”) were reviewable according to the Gill standard, whereas “core” prosecutorial discretion was reviewable solely for abuse of process. The diverging views present in this case, and in many others, demonstrate the unsatisfactory state of the law.

[44] In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34 (CanLII), [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

[45] In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making. That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger, where the prosecutor’s duty to disclose relevant evidence to the accused was at issue:

In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [Emphasis added; para. 54.]

Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.

(i) The Standard of Review for Prosecutorial Discretion

[46] The many decisions that Crown prosecutors are called upon to make in the exercise of their prosecutorial discretion must not be subjected to routine second-guessing by the courts. The courts have long recognized that decisions involving prosecutorial discretion are unlike other decisions made by the executive: see M. Code, “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863, at p. 867. Judicial non-interference with prosecutorial discretion has been referred to as a “matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice” which also recognizes that prosecutorial discretion is “especially ill-suited to judicial review”: Power, at p. 623. In Krieger, the Court discussed the separation of powers doctrine as a basis for judicial deference to prosecutorial discretion:

In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive . . . . [para. 45]

[47] The Court also noted the more practical problems associated with regular review of prosecutorial discretion:

The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. [para. 32]

[48] Manifestly, prosecutorial discretion is entitled to considerable deference. It is not, however, immune from all judicial oversight. This Court has repeatedly affirmed that prosecutorial discretion is reviewable for abuse of process: Krieger, at para. 32; Nixon, at para. 31; Miazga, at para. 46.

[49] The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68).

[50] Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Crown decisions motivated by prejudice against Aboriginal persons would certainly meet this standard.

[51] In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post-Krieger “core” versus “outside the core” dichotomy. To the extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed.

(ii) The Threshold Evidentiary Burden

[52] The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities: Cook, at para. 62; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69, per L’Heureux-Dubé J.; R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751, at para. 19. However, given the unique nature of prosecutorial discretion — specifically, the fact that the Crown will typically (if not always) be the only party who will know why a particular decision was made ― this Court in Nixon recognized that where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the claimant establishes a proper evidentiary foundation: para. 60.

[53] In Nixon, this Court noted the following reasons as to why there must be a “proper evidentiary foundation” before the abuse of process claim should proceed:

. . . mandating a preliminary determination on the utility of a Charter-based inquiry is not new: R. v. Pires, 2005 SCC 66 (CanLII), [2005] 3 S.C.R. 343. Similar thresholds are also imposed in other areas of the criminal law, they are not an anomaly. Threshold requirements may be imposed for pragmatic reasons alone. As this Court observed in Pires (at para. 35):

For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. [Emphasis added; paras. 61-62.]

[54] Nixon involved the Crown’s repudiation of a plea agreement. The Court held that the repudiation of a plea agreement was “a rare and exceptional event” that met the evidentiary threshold and justified an inquiry into the propriety of the Crown’s decision: Nixon, at para. 63. Indeed, the evidence in Nixon was that only two other plea agreements had been repudiated in Alberta’s history. As a result, the Court held that

to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim. [para. 63]

[55] Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), [2004] 2 S.C.R. 248, at para. 95. It also accords with this Court’s statement in Sriskandarajah, at para. 27, that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives” (emphasis added).

[56] Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract: see R. v. Beaudry, 2007 SCC 5 (CanLII), [2007] 1 S.C.R. 190, at para. 45 (discussing police practices manuals).

(b) Tactics and Conduct Before the Court

[57] The second category in the framework for review of Crown activity was referred to in Krieger as “tactics or conduct before the court”: para. 47. As stated in Krieger, “such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum” (para. 47).

[58] Superior courts possess inherent jurisdiction to ensure that the machinery of the court functions in an orderly and effective manner: R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331, at para. 18; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 S.C.R. 3, at para. 26. Similarly, in order to function as courts of law, statutory courts have implicit powers that derive from the court’s authority to control its own process: Cunningham, at para.18. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.

[59] While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself. In R. v. S.G.T., 2010 SCC 20 (CanLII), [2010] 1 S.C.R. 688, at paras. 36-37, this Court explained why judges should be very cautious before interfering with tactical decisions:

In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel . . . . [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party

. . . .

The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel. Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 S.C.R. 209, at para. 68.

[60] Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet, at para. 21. Likewise, as this Court recently held in R. v. Auclair, 2014 SCC 6 (CanLII), [2014] 1 S.C.R. 83, a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation.

[61] Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.

7. Abuse of Process as a Tort

. Harris v. Glaxosmithkline Inc.

In Harris v. Glaxosmithkline Inc. the Court of Appeal comments on the elements of the tort of abuse of process:

Abuse of Process

[27] At para. 48 of his reasons, the motion judge defined the constituent elements of the tort of abuse of process as follows:

The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted:
Hawley v. Bapoo (2005), 2005 CanLII 36451 (ON SC), 76 O.R. (3d) 649 (Ont. S.C.J.) at para. 86, var'd (2007), 2007 ONCA 503 (CanLII), 156 C.R.R. (2d) 351 (Ont. C.A.); Metrick v. Deeb (2002), 14 C.C.L.T. (3d) 297 (Ont. S.C.J.) at para. 9, aff'd (2003), 2003 CanLII 804 (ON CA), 172 O.A.C. 229 (C.A.), leave to appeal ref'd, [2003] S.C.C.A. No. 378, 195 O.A.C. 398n (S.C.C.); Scintilore Explorations Ltd. v. Larache, 1999 CanLII 14948 (ON SC), [1999] O.J. No. 2847
(S.C.J.); P.M. Perell, "Tort Claims for Abuse of Process"
(2007) 33 Adv. Q. 193 at p. 193; J. Irvine, "The Resurrection of Tortious Abuse of Process" 47 C.C.L.T. 217. [page670]

[28] In my view, the motion judge correctly defined the elements of the tort of abuse of process. His conclusion finds support in academic writings and an established line of authorities.

[29] The appellant referred to this court's decision in Metrick v. Deeb, 2003 CanLII 804 (ON CA), [2003] O.J. No. 2221, 172 O.A.C. 229 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 378, as authority for the proposition that the tort of abuse of process consists of only two elements: (1) using the legal process for an improper or collateral purpose; and (2) the need for a definite act or threat in furtherance of the illegitimate purpose.

[30] Those two elements were taken from a passage in Fleming, The Law of Torts, 9th ed. (North Ryde, N.S.W.: LBC Information Services, 1998), at p. 668, which the court referred to as "instructive". In its brief endorsement, the court directed its attention to the second of the two elements and found that it had not been made out on the evidence.

[31] Metrick should not be taken as authority for the proposition that the tort of abuse of process consists of only two elements. The court in that case was not called upon to consider the constituent elements of the tort. It was simply responding to the particular issues raised in that case, one of which related to the need for a definite act or threat in furtherance of the illegitimate purpose. In that regard, the court found [at para. 3] the following quote from Fleming instructive: "Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions" (emphasis added).

. Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada)

In Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada) (Ont CA, 2014) the Court of Appeal noted plainly that abuse of process was a tort:

[83] If there is any evidence that Chartis intentionally misled the court or subverted the course of justice, there are remedies available, subject to any defences Chartis may have, including potential limitation defences. It is open to E & Y to move for appropriate relief, including perhaps the variation of the Houlden Order to include an assignment of CGT’s cause of action for a breach of the duty of good faith. Alternatively, E & Y might have a claim for abuse of process on the basis of a collateral attack on a court order: Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63 (CanLII), 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 34. Abuses of the court’s process are actionable in tort: Harris v. Glaxosmithkline Inc., 2010 ONCA 872 (CanLII), 2010 ONCA 872, 106 O.R. (3d) 661, at para. 27. In addition, although perhaps not available in these circumstances, an action for civil contempt might be available for breach of the strict terms of a court order: see Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614.

• Phillion v. Ontario (Attorney General) (Ont CA, 2014)
  
• Skypower CL 1 LP v Ontario Power Authority (Ont CA, 2015)
  
• Winter v. Sherman Estate (Ont CA, 2018)
  
• Apotex Inc. v. Schering Corporation (Ont CA, 2018)
  

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  Cases To Be Integrated
  
• R v Anderson (SCC, 2014)