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Abuse of Process - Breach of Court Order. Buduchnist Credit Union Limited v. 2321197 Ontario Inc.
In Buduchnist Credit Union Limited v. 2321197 Ontario Inc. (Ont CA, 2023) the Court of Appeal considered abuse of process as a separate ground (as opposed to contempt) to respond to breach of a court order:[53] The court’s broad jurisdiction to craft an appropriate order in response to a breach of a court order arises from its well-established inherent jurisdiction to prevent an abuse of the court’s process. Section 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court express power to stay or dismiss a proceeding as an abuse of process. The deliberate breach of court orders strikes at the very heart of the administration of justice and can never be tolerated. It is beyond trite to say that a court order must be followed until it is set aside. Self-help remedies will never be tolerated because they undermine the rule of law. In United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 931, in the context of civil and criminal contempt, McLachlin J. (as she then was) wrote a strong affirmation of the connection between the rule of law and enforcement of the court’s process, which is apposite here: “The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”
[54] BCU’s creditor priority arguments ignore the consideration, in light of the motion judge’s finding of its breach, that its claim to the post-Mareva advances would never have arisen but for its breach of a clear court order. And they fail to take into account the court’s broad jurisdiction in response to BCU’s abuse of the court’s process by its breach of the Mareva Order. As this court noted in Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 92: “it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force”.
[55] The court’s broad jurisdiction in the face of a breach of a court order includes the power to dismiss or refuse to entertain a proceeding, strike pleadings, or adjourn a party’s request for relief: see, for example, Thrive Capital Management Ltd. v. Noble 1324, 2021 ONCA 722, 463 D.L.R. (4th) 377, at para. 22; Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), Laskin J.A. dissenting, aff’d 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6; Paul Magder Furs Ltd.; First Majestic Silver Corp. v. Davila Santos, 2015 BCCA 452, 391 D.L.R. (4th) 553, at paras. 19-25; Yao v. Li, 2012 BCCA 315, at para 41. The breadth of the court’s jurisdiction that would allow it to dismiss, refuse to entertain or adjourn proceedings in the face of a breach of an order clearly encompasses the jurisdiction to postpone the enforcement of a creditor’s claim arising solely from a breach of a court order.
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