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Abuse of Process - Administrative (2). Derenzis v. Gore Mutual Insurance Co.
In Derenzis v. Gore Mutual Insurance Co. (Div Ct, 2025) the Divisional Court dismissed a LAT SABS joint appeal-JR (Yatar), here where an issue was the admission in evidence of allegedly privileged affidavit "information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator".
Here the court considers the LAT's jurisdiction to make "non-dissemination and destruction orders" regarding offered evidence - which is an wide exploration of what I consider to be administrative 'administrative plenary jurisdiction' - including open court, equitable, abuse of process, control of process, record creation, that drawn from statutes (TARA, SPPA), and even more:Legal Framework
[81] Section 96(3) of the Courts of Justice Act (the “CJA”) grants the Court of Appeal and the Superior Court of Justice the power to grant equitable relief “unless otherwise provided”.
[82] Section 101(1) of the CJA limits jurisdiction over mandatory and injunctive relief to the Superior Court of Justice, unless explicitly conferred by statute: see Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (C.A.), at para. 8.
[83] Turning to the powers of the Tribunal, it is important to note that pursuant to s. 2 of the SPPA, powers granted are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”.
[84] The Tribunal has the power to control its own process which includes the power to strike evidence that is not admissible. It also has the power to strike segments of documents that are not admissible under the rules of evidence and to make ancillary orders under s. 15 of the SPPA to ensure proper conduct and control of its process under s. 23(1) and 25.0.1 of the SPPA and s. 3(2) of the LATA.
[85] Under s. 15(2) of the SPPA, the Tribunal has discretion to admit any relevant documents if it is not inadmissible and may determine if a document is privileged:(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute. [86] The Tribunal’s jurisdiction includes dealing with disputes in accordance with the SABS pursuant to the SPPA, s. 25.1:25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1. [87] In accordance with s. 2(2) of the Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (the “TARA”), the Tribunal may on its own motion order a portion or all of a record be treated as confidential if it determines that its non-disclosure outweighs the principle that records are public.
[88] These confidentiality orders may be filed with the Superior Court and are enforceable: TARA, s. 5.
[89] Reference was made to Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.), leave to appeal refused, 2024 ONCA 944, where the Divisional Court found that the Tribunal may have discretion to exercise equitable powers where it is just to do so on an application to ensure procedural fairness. The court found that these powers are available to ensure procedural fairness, in keeping with the objectives set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. At para. 63 of Davis, the court reiterates the “hallmarks of procedural fairness” stemming from Baker:a. The nature of the decision being made, and the process followed in making it;
b. The nature of the statutory scheme and the terms of the statute pursuant to which that body operates;
c. The importance of the decision to the individual affected;
d. The legitimate expectations of the person challenging the decision; and
e. The choices of procedure made by the deciding body itself. [90] In that case, the applicant had submitted that Aviva’s acceptance of her application for benefits raised an issue of “estoppel” and argued that the Tribunal had equitable powers and should have denied Aviva’s motion. The Divisional Court found that it had equitable powers and it was reasonable not to exercise those powers in the circumstances.
[91] The court relied on Botbyl v. Heartland Farm Mutual Inc., 2023 CanLII 72662 (ON LAT), where the applicants were spouses involved in a motor vehicle accident and sustained numerous injuries and had two motor vehicle policies at the time of the accident. They applied to Economical Insurance for accident benefits, but this policy did not have enhanced benefits. Heartland, the other insurer, denied any liability for the applicant’s enhanced benefits, as the applicants had already submitted an application to Economical. The applicant’s counsel requested relief from forfeiture and a request that Heartland reconsider their decision.
[92] The applicants first applied to the Superior Court requesting a declaration of relief from forfeiture. The court denied the application and found that the Tribunal holds the jurisdiction over such disputes and the matter should first be heard by the Tribunal as it has the jurisdiction to address this dispute involving the applicant’s entitlement to, or amount of accident benefits under s. 280(2) of the Insurance Act.
[93] The Tribunal found that the doctrine of relief from forfeiture can be applied and that the applicants were permitted to rescind their application for accident benefits with Economical and apply for benefits through Heartland. The Tribunal found that although the issue was framed as relief from forfeiture the applicants were really seeking entitlement to the enhanced accident benefits from Heartland that they had purchased which specifically would have increased the weekly IRB payment and increased monetary limits for medical and rehabilitation benefits: Botbyl, at para. 19.
[94] The adjudicator found the Tribunal was the most appropriate venue to hear the issue and referred to Continental Casualty Co. v. Chubb Insurance Co. of Canada, 2022 ONCA 188, 22 C.C.L.I (6th) 1, where the relief of forfeiture was directed to the Tribunal. At para. 108, the court stated in obiter that “potential unfairness arising from an insured’s errors when applying for SABS may, in some cases, be corrected by invoking relief from forfeiture ... .”
[95] After a review of cases, the Tribunal agreed with Justice Turnbull’s earlier decision in the case that there is another process in the SABS for the applicants and can be determined by the Tribunal.
[96] Other tribunals have made orders to control their own process to prevent its abuse.
[97] In Law Society of Ontario v. McDonald, 2024 ONLSTH 47, at paras. 1-3, 38 the Law Society Tribunal ordered a self-represented respondent to return a privileged document that had been inadvertently disclosed, destroy all electronic copies and notes and provide contact information on any individuals who had copies. The respondent was also restrained from using the information and ordered to keep it confidential.
[98] In Ontario Public Service Employees Union (Fortin) v. Ontario, 2017 CanLII 16719 (Ont. GSB), at paras. 25-31, the Tribunal refused to admit documents that the grievor had stolen from her government employer as it breached her duty of confidentiality. The Grievance Settlement Board ordered the grievor and her union to destroy any document and to confirm compliance.
[99] In JP v. Ontario (Health Insurance Plan), 2005 CanLII 77253 (Ont. HSARB), the Health Services Appeal and Review Board ordered a confidential document inadvertently filed by the respondent to be removed from the record and destroyed by the parties.
Application
[100] Statutory tribunals are specialized tribunals dealing with specialized fields and discrete issues and have jurisdiction to control their own processes.
[101] The Tribunal is in the best position to ensure that it maintains procedural fairness while balancing efficiency and participation by litigants before the Tribunal to ensure that there is natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560, at para. 16. It is “the master in its own house it also had the power to determine when it was most efficient and just to conduct a hearing of the appeal”: Toronto (City) v. Avenue Road Eglinton Community Assn., 2019 ONSC 146, 84 M.P.L.R. (5th) 239 (Div. Ct.), at para. 60.
[102] It is within the Tribunal’s purview to establish and control its own process and procedures as set out in the SPPA. Rules are to be liberally construed: SPPA, s. 2. Other tribunals have exercised this power to order parties not to distribute materials. However, in the past such orders have only involved the parties to the dispute.
[103] In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, 3 S.C.R. 77, the court states that the common law doctrine of abuse of process is flexible to ensure that the administration of justice and its integrity is not brought into disrepute. The Tribunal was not reaching beyond the matter at hand, as their order bound the parties, their counsel and the witness/affidavit, and the Tribunal was well placed to determine whether the parties and law firm had confidential information and its impact.
[104] The Tribunal has an obligation to establish and protect the record. It has the jurisdiction to direct the parties, their representatives and those involved in the case, i.e. witnesses and affiants to not disseminate materials that the Tribunal found to be privileged which had not been waived by the Tribunal. For that reason, the sealed documents in this court will remain sealed permanently.
[105] The Tribunal ordered the parties, their representatives and the witnesses and affiants in this case to not distribute the offending documents. Such an order does not constitute an order in rem.
[106] The Tribunal has the right to control its own process and record.
[107] The Tribunal can order destruction of materials. However, I note in passing that the more prudent process in many cases would be to seal the documents pending completion of any judicial review procedure or appeal which is what was done before the Divisional Court immediately following the Tribunal’s decision.
[108] Alternatively, the Tribunal may preserve the originals for the purposes of appellate review. The Tribunal can order that all copies be destroyed or turned over to the Tribunal. Such a slightly more limited order would preserve the ability of the appellate court to restore the copies to the parties in the event of a successful appeal or judicial review.
[109] As stated above, the sealed documents will remain sealed. . Dhaliwal v. College of Veterinarians of Ontario [delay]
In Dhaliwal v. College of Veterinarians of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed appeals from "decisions of the Discipline Committee (the “DC”) of the College of Veterinarians of Ontario (the “College”) involving three separate complaints. On each complaint, the DC held that Dr. Dhaliwal had engaged in professional misconduct and sanctions were imposed upon him".
Here the court considers appeal allegations of 'abuse of process', here inordinate delay:2. Inordinate delay:
[69] The other aspect of the abuse of process claim is the allegation that there was inordinate delay in the proceedings.
[70] The DC, in its decision of February 28, 2023 in the Henderson matter, considered this issue, at paras. 47 – 57. It began by citing Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 72, to establish the applicable test:The test for whether delay amounts to an abuse of process has three steps. First, the delay must be inordinate. This is determined on an assessment of the context overall. Second, the delay must have caused significant prejudice. When these two requirements are met, the court or tribunal is to conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute: Behn , at paras. 40-41. ....
[80] In Abrametz (supra), the Supreme Court of Canada clarified the applicable standard of review in statutory appeals such as the one before this court. At paras. 29-30, Rowe J., speaking for the majority (Côté J. dissenting), said the following:This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at paras. 24-25.
Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness. [81] Rowe J. made it clear, at para. 47, that the court was not about to “Jordanize” the issue of delay in administrative proceedings, in response to strict timetables imposed on criminal proceedings by R. v. Jordan, 2016 SCC 27. Jordan flows from a Charter right to be tried within a reasonable time. No such right is at stake in administrative proceedings.
[82] The fact that a process took considerable time does not, in itself, amount to inordinate delay. Rather, one must consider the time in light of the circumstances of the case [para. 50]. Factors to be considered include (a) the nature and purpose of the proceedings, (b) the length and causes of the delay, and (c) the complexity of the facts and issues in the case [para. 51]. If a party caused the delay, it cannot amount to an abuse of process [para. 62]. If the applicant asked for a suspension of the proceedings, or acted in a way that unequivocally suggested that they acquiesced to a delay, it can constitute a waiver [para. 63].
[83] Prejudice is a question of fact [para. 69]. On an appellate review of a hearing committee’s decision on an abuse of process claim, deference should be accorded as to its findings of fact and mixed fact and law [para. 106].
[84] Here, the DC correctly identified the proper legal test to be applied in determining whether an abuse of process had been established. We see no palpable and overriding error in its findings of fact as to the chronology of this prosecution, nor in its finding that the appellant suffered no prejudice as a result of the delay. In that regard, Abrametz makes it clear, at para. 68, that prejudice cannot result from the stress and other negative consequences that flow from the fact that disciplinary proceedings were undertaken, but must instead be caused or exacerbated by inordinate delay in those proceedings. . Peel Standard Condominium Corp. No. 779 v Rahman
In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the trbunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)". In these quotes the court [Corbett J] considers whether the respondent acted in a vexatious manner, here during consideration of an abuse of process allegation by the appellant:[10] I see no basis for staying or dismissing Mr Rahman’s parking claims on the basis of abuse of process. The Tribunal has exclusive jurisdiction over the parking issue. It may be that other proceedings initiated by Mr Rahman constitute an abuse of process – bringing multiple proceedings in multiple courts or tribunals can be an abuse of process. However, even if it were found that Mr Rahman has been engaging in abuse of process, this would not disentitle him to a decision on the merits in a proceeding before a court or tribunal with jurisdiction. In this instance, the proper venue for a decision on the merits was the Tribunal, and it was no abuse of process to pursue these issues there.
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Issue 2: Abuse of Process
[25] Mr Rahman has commenced a proceeding before the Human Rights Tribunal, an action in the Superior Court, and multiple matters before the Tribunal. These other proceedings are not solely in respect to the parking issue, but all are connected to an over-arching allegation of harassment by the appellant, of which the allegations respecting the parking issue are alleged to be a part.
[26] As this court stated to the parties at the outset of oral argument, the conduct of the parties, towards each other and in pursuing multiple steps against each other, has been unreasonable. Both sides are to blame for this, but it appears that Mr Rahman’s conduct, as a party to conflict-resolution processes, has been egregious. During oral argument, Mr Rahman advised the court that he has brought, or will be bringing, legal proceedings against counsel for the appellant and against the Tribunal itself in the Superior Court. This court does not have these other proceedings before it. However, suing opposing counsel (who owes no duty to Mr Rahman), or purporting to sue an administrative tribunal (which has absolute adjudicative privilege), is a hallmark of vexatious litigation. And, even though Mr Rahman is in the right on this appeal, Mr Rahman’s conduct before this court was likewise vexatious in some respects.
[27] The usual consequence of acting vexatiously may be curtailment of unfettered access to the justice system. It is not, however, denial of justice itself in respect to matters properly before a court or tribunal.
[28] In the case at bar, Mr Rahman raised an issue with the Tribunal that is within the Tribunal’s exclusive jurisdiction – the parking issue. The Tribunal correctly concluded that it had jurisdiction over this claim and that it should not dismiss the claim simply because Mr Rahman was acting badly in conflict-resolution processes. Where an issue may be within the jurisdiction of more than one adjudicative body, it can be appropriate to stay or dismiss a proceeding in favour of the issue being decided elsewhere. Here, the Tribunal correctly concluded that the issue was properly before it and should be decided by it. I would not give effect to this ground of appeal.
[29] This does not mean that the parties can behave vexatiously before the Tribunal. These parties have consumed extraordinary and unacceptable Tribunal resources, and the Tribunal is entitled to control its own process to ensure that matters are pursued reasonably. In the first five months of 2023, alone, the Tribunal has issued the following decisions between these parties:2023 ONCAT 48
2023 ONCAT 46
2023 ONCAT 37
2023 ONCAT 36
2023 ONCAT 10
2023 ONCAT 9 But this is not all Mr Rahman, by any means. Both sides have acted unreasonably before the Tribunal. It is for the Tribunal to take the steps it considers appropriate to restore order and proportionality to the parties’ disputes before the Tribunal, and this broader issue is not before this court on this appeal. . Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In this quote the court considers the 'location' of fairness violations in administrative law, particularly it's relation to abuse of process and the appellate standard of review:[16] In its most recent pronouncement on the subject, the Supreme Court has held that questions of procedural fairness are legal questions to be reviewed on the correctness standard: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328 (Abrametz), at paras. 26-30. The issue in that case was whether the Law Society’s conduct amounted to an abuse of process. While not every instance of procedural fairness amounts to an abuse of process, every abuse of process amounts to a breach of procedural fairness: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 151-155 (per Lebel J. dissenting, but not on this point). As a result, any debate as to whether questions of procedural fairness are questions of law reviewable on the standard of correctness – see Hussey v. Bell Mobility Inc., 2022 FCA 95, 2022 C.L.L.C. 210-052 at para. 24, Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paras. 54-56 – has been put to rest. . 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 the court locates 'abuse of process', when occuring in an administrative context, with administrative fairness:[69] In administrative proceedings abuse of process is a question of procedural fairness.[Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (CanLII) at para. 38 referring to Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 105-107 and 121] ... . De Rose v. Windsor-Essex Catholic District School Board
In De Rose v. Windsor-Essex Catholic District School Board (Div Court, 2022) the Divisional Court considered a JR of an HRTO decision to stay a complaint as an abuse of process. In these quotes the court discusses abuse of process, here in a context of a labour grievance:[65] We start with the definition of an abuse of process. We accept the Applicant’s submissions that the doctrine of abuse of process is invoked only in the clearest of cases. Waterloo (City) v. Wolfraim, 2007 ONCA at para. 3. However, it is important to understand that the doctrine of abuse of process is broader than the principles of res judicata. Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
[66] In Canam Enterprises v. Coles, (2000) 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607 (C.A.), Goudge J.A. set out the following explanation of abuse of process.
[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
[67] While Goudge J.A. was dissenting, the decision was appealed to the Supreme Court of Canada and this explanation of abuse of process was adopted by the Court when it adopted Goudge J.A.’s reasons in toto. See Canam, 2002 SCC 63.
[68] The doctrine of abuse of process can be invoked even in cases where there is no final decision. Indeed, in Waterloo, supra, the Court noted (at para. 4) that it was “not necessarily an abuse of process” to bring a subsequent action where, inter alia, the specific issue in the subsequent action was not decided by the Court in the earlier action (emphasis added). The corollary of this point is that, in some cases, it can be an abuse of process even where the specific issue has not previously been decided by the Court.
[69] Given the inherently flexible nature of the doctrine of abuse of process it can be used in cases where the specific issue has not finally been decided. As the Court noted in Waterloo, at para. 5:
[5] Overall, the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute. This case lacks those attributes.
[70] The HRTO has also grappled with the issue of the application of abuse of process in circumstances where there was a grievance process ongoing. While the Vice-Chair noted that there was no case directly on point, she did reference several cases that dealt with the interaction between grievance arbitration proceedings and HRTO applications. The two most relevant of those decisions are Nash v. Ottawa-Carleton District School Board 2012 HRTO 2299 and Cunningham v. Toronto District School Board, 2018 HRTO 1462.
[71] The Nash decision is particularly instructive. In Nash, the Vice-Chair found (at para. 17) that, although the grievance had been dismissed, no evidence has been called and no one had been cross-examined. The Vice-Chair went on to conclude (at para. 47) that there could be cases where abandonment of a grievance could be an abuse of process, although the case before him was not such a case.
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