Simon's Megalomaniacal Legal Resources

Abuse of Process - General

. 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc.

In 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc. (Ont CA, 2022) the Court of Appeal summarizes briefly the doctrine of abuse of process:

[19] Abuse of process engages the inherent and residual discretion of the court to prevent the misuse of its procedure: Toronto (City), at para. 35. The doctrine of abuse of process is characterized by its flexibility as it is unencumbered by specific requirements: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 40. As a result, it may be relied on to prevent re-litigation in circumstances that violate judicial economy, consistency, finality, and the integrity of the administration of justice. The primary focus of the doctrine is the integrity of the courts’ adjudicative functions, but it arises in an array of contexts: Toronto (City), at paras. 36-37, 43.

. Law Society of Saskatchewan v. Abrametz

In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada reviewed the history of the court's abuse of process jurisdiction:

(2) The Doctrine of Abuse of Process

[33] The doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 39; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at p. 612; P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243, at p. 243. The doctrine was recognized in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 135-37, where the Court drew from Dubin J.A. in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289 (Ont. C.A.), at p. 329, where he stated that

there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. [Emphasis added; p. 135.]

[34] Abuse of process is a broad concept that applies in various contexts: C.U.P.E., at para. 36; Behn, at para. 39. In criminal proceedings, unfair or oppressive treatment of an accused can constitute an abuse of the court’s process and warrant judicial intervention: R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 25, citing Power, at pp. 612-15; Jewitt, at pp. 136-37; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 59. In civil matters, it can warrant granting a motion to strike pleadings or to preclude relitigation of an issue: see Behn; Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d 2002 SCC 63 (CanLII), 2022 SCC 63, [2002] 3 S.C.R. 307.

[35] It is also characterized by its flexibility. It is not encumbered by specific requirements, unlike the concepts of res judicata and issue estoppel: Behn, at para. 40; C.U.P.E., at paras. 37-38. In Behn, at para. 40, LeBel J. referred with approval to Goudge J.A., dissenting, in Canam Enterprises Inc. (C.A.), where Goudge J.A. explained that 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. [Emphasis added; para. 55.]

Such flexibility is important in the administrative law context, given the wide variety of circumstances in which delegated authority is exercised.

[36] The primary focus is the integrity of courts’ adjudicative functions, and less on the interests of parties: C.U.P.E., at para. 43; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007. The proper administration of justice and ensuring fairness are central to the doctrine: Behn, at para. 41; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at paras. 24-25 and 31. It aims to prevent unfairness by precluding “abuse of the decision-making process”: Figliola, at para. 34, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 20.

. Ntakos Estate v. Ntakos

In Ntakos Estate v. Ntakos (Ont CA, 2022) the Court of Appeal considered the issue of abuse of process:

[44] The motion judge properly considered the relevant legal principles for deciding whether the claims were an abuse of process. Having regard to case law from this court and the Supreme Court of Canada, the motion judge stated that “[t]he law is clear that it is an abuse of process to relitigate a determination by a court in the hope of a different outcome”: see The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227. The motion judge explained that this principle applies to matters that “could have been determined” in prior proceedings: Catalyst, at para. 67, citing Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal to S.C.C. refused, 38899 (March 19, 2020); Behn, at para. 40. He further explained that this principle applies to proceedings decided on consent: D’Addario v. EnGlobe Corp., 2012 ONSC 1918, 1 B.L.R. (5th) 23, at paras. 268-69, aff’d 2014 ONCA 376, 28 B.L.R. (5th) 191. In addition, the motion judge correctly acknowledged that there are limited circumstances where a party may be entitled to relitigate an issue, such as “when the first proceeding is tainted by fraud or dishonesty”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52.

. Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario

In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court summarized the nature of abuse of process:

[6] The Applicant challenges the ICRC’s conduct as an abuse of process. An abuse of process will be established where proceedings are oppressive and vexatious and violate the fundamental principles of justice underlying the community’s sense of fair play and decency (Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at paras 35-36).

....

[43] In order to constitute an abuse of process, proceedings must be “unfair to the point that they are contrary to the interests of justice”. An abuse of process is established only 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.” (Toronto (City v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 35 (CanLII), 2003 SCC, at para. 35).

[44] The Applicant asks that the ICRC’s decision be quashed as an abuse of process. A stay of proceedings is the remedy for an abuse of process and is reserved for only the “clearest of cases” (R. v. Regan, 2002 SCC 12 at para. 53; R. v. Piccirilli (sub nom. R. v. Babos), 2014 SCC 16 at para. 31). Courts must consider whether the Applicant has been prejudiced and, if so, whether there is an alternate remedy capable of addressing the prejudice. Even where prejudice is established, the onus is on the Applicant to establish that the interest in denouncing the conduct outweighs the public interest in proceeding (R. v. Regan, at para. 57; Babos, at para. 32).