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Abuse of Process - 'Intimate Partner Violence' Re-litigation Exception
COMMENT
See this full topic at: Intimate Partner Violence.
CASES
. Malamas v. Wey
In Malamas v. Wey (Ont CA, 2026) the Ontario Court of Appeal partially allowed a plaintiff's appeal, here brought against a summary judgment order "dismissing the appellant’s action" and involving "allegations and evidence of intimate partner violence".
Here the court considers exceptions to the operation of 'cause of action estoppel' and 'abuse of process' (in it's re-litigation mode), here in an assessment of whether a 'genuine issue for trial' lay in a summary judgment context:3. Genuine Res Judicata and Abuse of Process Issues Require Trial
[48] The same record also bears on whether cause of action estoppel – a form of res judicata – or abuse of process bars the appellant’s claims. These doctrines may apply where a claim could have been advanced in an earlier proceeding, but both incorporate a discretionary component: Bear Island Foundation v. Ontario (1999), 1999 CanLII 9307 (ON CA), 126 O.A.C. 385 (C.A.), at paras. 31-32; Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at paras. 32, 38-40.
[49] The exercise of that discretion requires consideration of the circumstances in which the earlier proceeding occurred, including whether there was a reasonable basis for not advancing the claims at that time: Métis Nation, at para. 39; Continental Appraisals Ltd. v. Air Touch Communications Ltd., 2024 BCCA 304, at paras. 67-78, 94-96.
[50] The motion judge focused on whether the claims could have been brought in the earlier family proceeding, but did not address whether, in light of the evidentiary record, it would be unjust or inappropriate to bar them. That omission constitutes an error in principle warranting appellate intervention: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 65-66.
[51] On this record, there are genuine issues requiring a trial as to whether the discretionary component of these doctrines should be exercised to permit the claims to proceed. The appellant relies on evidence relating to housing insecurity, financial instability, and the alleged violence and its effects during the relevant period. Whether those circumstances are established, and their legal significance, are matters for trial.
[52] It is also arguable that the earlier family proceeding addressed related allegations primarily in support of interlocutory relief, including protection-related relief and interim possession of the home. If so, it may be open to a trial judge to conclude that the present claims do not undermine the objectives underlying res judicata or abuse of process: see McCann v. Barens, 2023 BCSC 2000, at paras. 44-46; compare Klassen v. Epp, 2025 BCSC 1056, 17 R.F.L. (9th) 95, at paras. 76-96.
[53] The appellant’s representation by counsel in the earlier proceeding is relevant but not determinative: Danyluk, at paras. 78-81; see also Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, at para. 83. Whether practical constraints or other circumstances affected the advancement of these claims is a genuine issue requiring a trial.
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