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Abuse of Process - Multiplicity of Proceedings. Saskatchewan (Environment) v. Métis Nation – Saskatchewan
In Saskatchewan (Environment) v. Métis Nation – Saskatchewan (SCC, 2025) the Supreme Court of Canada dismissed a provincially-brought JR seeking "a declaration that Saskatchewan breached its duty to consult by failing to consult MNS about the impact of the exploration permits with respect to title and commercial harvesting rights". The appeal relates to an interlocutory "motion to strike portions of MNS’s application, based on abuse of process", due to the existence of other proceedings involves the same matters:[23] The Court of Appeal unanimously allowed MNS’s appeal and reinstated the paragraphs in question in the 2021 Originating Application.
[24] The Court of Appeal stated that the doctrine of abuse of process is a “flexible tool” that is “employed to prevent the administration of justice from being misused” (para. 46). It is often “necessary to consider all the relevant context and background of a matter” (para. 46). The court noted that a proceeding may be abusive where a party is “attempting to relitigate an issue that has already been decided, or is currently being decided, in another forum”, as this would “waste the resources of the parties, courts and witnesses alike, while risking inconsistent results and undermining the credibility of the entire judicial process” (para. 46).
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V. Analysis
A. Standard of Review
[31] Whether there is an abuse of process is a question of law (Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 30). Thus, the applicable standard of review is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8).
[32] That said, I would add the following for clarity. Where an abuse of process has been established, a subsequent question arises: What remedy is to be granted? That decision is discretionary (see King’s Bench Rules, r. 7-9(1)(a)). Being a discretionary decision, it is “generally entitled to deference” and “may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being ‘so clearly wrong as to amount to an injustice’)” (Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, at para. 41, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15).
B. The Abuse of Process Doctrine
[33] The doctrine of abuse of process is concerned with the administration of justice and fairness (Behn, at para. 41). The doctrine engages the inherent power of the court to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37; Behn, at para. 39; Abrametz, at para. 33).
[34] In Abrametz, this Court reiterated that abuse of process is a broad concept that applies in various contexts (para. 34, citing Toronto (City), at para. 36, and Behn, at para. 39). The Court noted that the doctrine of abuse of process is “characterized by its flexibility. It is not encumbered by specific requirements, unlike the concepts of res judicata and issue estoppel” (para. 35, citing Behn, at para. 40, and Toronto (City), at paras. 37-38).
[35] One way in which an abuse of process can arise is by relitigation, that is, “where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined” (Behn, at para. 40, quoting Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 56, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; see also Abrametz, at para. 34; and D. J. Lange, The Doctrine of Res Judicata in Canada (5th ed. 2021), at pp. 1-5). Relitigation will be an abuse of process if it violates “such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (Toronto (City), at para. 37; Behn, at para. 41). Where warranted, the doctrine of abuse of process can be relied on to strike pleadings so as to prevent relitigation of an issue (see Behn; Canam Enterprises Inc.).
[36] Abuse of process is not limited to relitigation. For example, in Behn, this Court found that “raising a breach of the duty to consult and of treaty rights as a defence”, in circumstances where the defendants had a fair opportunity to initiate proceedings and raise such claims earlier, was abusive (para. 37). In that case, it was held that permitting this litigation tactic would lead courts to condone “self-help remedies” pursued outside litigation, namely the creation of a blockade (para. 42; see also para. 1). This Court has held that an inordinate delay that causes serious prejudice can give rise to an abuse of process (see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 115). In criminal proceedings, the doctrine can be used to preclude unfair or oppressive treatment of an accused (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-37; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 59; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 25; Abrametz, at para. 34). This list is illustrative, not exhaustive.
[37] Before turning to the circumstances of this case, I will consider the doctrine of abuse of process in the context of a multiplicity of proceedings, as that is the primary ground upon which Saskatchewan seeks to have the paragraphs in question struck from the 2021 Originating Application.
[38] A multiplicity of proceedings which engage the same issues can amount to an abuse of process. In the foundational case of McHenry v. Lewis (1882), 22 Ch. D. 397, Sir George Jessel observed that: “. . . it is prima facie vexatious to bring two actions where one will do” (p. 400). Examples of where a multiplicity of proceedings has amounted to an abuse of process include: where two parallel class actions involving the same parties were brought in two different jurisdictions (Englund v. Pfizer Canada Inc., 2007 SKCA 62, 284 D.L.R. (4th) 94, at paras. 38-40); where plaintiffs initiated multiple actions claiming Aboriginal and treaty rights over the same land and natural resources (Dixon v. Canada (Attorney General), 2015 ABQB 565); and where the plaintiffs provided “no viable explanation” for bringing a second action that duplicated the issue of ownership of a trade name which encapsulated the original defendants (Cashin Mortgages Inc. v. 2511311 Ontario Ltd., 2024 ONCA 103, 170 O.R. (3d) 107, at para. 14).
[39] However, the fact that there are two or more ongoing legal proceedings which involve the same, or similar, parties or legal issues, is in itself not sufficient for an abuse of process. As this Court recognized in Toronto (City), “[t]here may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system” (para. 52). Similarly, there may be instances where parties have a valid reason for bringing separate, but related, proceedings; in such cases, a multiplicity of proceedings can serve to enhance the administration of justice (see, e.g., Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at paras. 20-22). The inverse can also be true: pleadings do not need to be identical in order for a multiplicity of proceedings to amount to abuse of process (see, e.g., Dixon, at para. 85; Fillion v. Degen, 2005 MBCA 58, 195 Man. R. (2d) 2, at para. 23).
[40] Thus, the abuse of process analysis does not end when multiple or similar proceedings exist. Rather, the analysis needs to focus on whether allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, as discussed above. Where, for example, having duplicative proceedings would waste the resources of the parties, courts and witnesses, or risk inconsistent results and therefore undermine the credibility of the judicial process, this can amount to an abuse of process.
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