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Abuse of Process - Standard of Review. SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP
In SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP (Ont CA, 2025) the Ontario Court of Appeal considered an appeal from a stay order, here where the court below stayed one action on the grounds that the defendant could have been added to another existing action.
Here the court considers the SOR for issues of abuse of process:[19] The determination that proceedings constitute an abuse of process is a finding of mixed fact and law which is entitled to deference on appeal absent an extricable error of law: Davies v. Clarington (Municipality), 2023 ONCA 376, 167 O.R. (3d) 33, at para. 48. An appellate court should intervene “only if the motion judge misdirected himself, came to a decision that is clearly wrong … or gave no or insufficient weight to relevant considerations”: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 284. . Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In this quote, despite the fact that this proceeding is a judicial review (where the normal standard of review is "reasonableness"), the court assigns a 'correctness' standard since the issues are 'fairness' and 'abuse of process' - both which merit no deference on appeal or JR :Standard of Review
[43] The central issue, really the only issue on this judicial review, is whether in setting aside the decision that had been made and requiring that there be a de novo proceeding the Landlord and Tenant Board denied the tenants procedural fairness. In the case of Law Society of Saskatchewan v. Abrametz [2022 SCC 29] the Supreme Court of Canada clarified that the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal is correctness. . Hodge v. Registrar Real Estate and Business Brokers Act
In Hodge v. Registrar Real Estate and Business Brokers Act (Div Court, 2022) the Divisional Court located abuses of process as issues of law for standard of review purposes:[17] Issues of procedural fairness in the context of a statutory appeal are subject to appellate standards of review: Law Society of Saskatchewan v. Abrametz at para. 27. Abrametz was a case that raised issues of abuse of process, a component of procedural fairness. The Supreme Court discussed the relationship between abuse of process, fair play, and the relationship between administrative decisionmakers, those affected by the decisions and society. Questions of abuse of process are questions of law, and thus, we apply a standard of correctness to the question of procedural fairness in the context of this statutory appeal: See Abrametz at paras. 30-36. . Law Society of Saskatchewan v. Abrametz
In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada commented on standard of review for abuse of process, here in an appeal case:[30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.>
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