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Abuse of Process - Re-litigation. Jeyanathan v. The Governing Council of the University of Toronto Academic Appeals et al.
In Jeyanathan v. The Governing Council of the University of Toronto Academic Appeals et al. (Ont Divisional Ct, 2025) the Divisional Court granted a motion to quash a JR as an abuse of process, which held to encompass collateral attack doctrine:[22] In Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.), Goudge J.A., in his dissenting opinion (approved by the Supreme Court on appeal: 2002 SCC 63, [2002] 3 S.C.R. 307), stated, at para. 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. ... [23] One aspect of the doctrine of abuse is the rule against collateral attacks. In Jones v. Quinn, 2024 ONCA 315, Coroza J.A. stated at para 96:The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see Yan v. Hutchison, 2023 ONCA 97, at para. 16, leave to appeal refused [2023] S.C.C.A. No. 203 (S.C.C.) ; Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 71-72; R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 23. The discretionary rule is intended to promote the orderly administration of justice and is a particular application of the broader abuse of process doctrine. . Canada v. Csak
In Canada v. Csak (Fed CA, 2025) the Federal Court of Appeal allowed a Crown appeal, this from a Tax Court ruling "concerning the respondent’s liability, pursuant to subsection 160(1) [SS: 'Tax liability re property transferred not at arm’s length']".
The court considered whether income tax re-assessments for 1988-1991, already appealed and dismissed at the Tax Court in 2006, could be re-litigated - here on the argument that the CRA's 1988-1991 re-assessments were limitation-barred. This occured as an aspect of a spouse's defence against 2012 arm's-length ITA s.160(1) collection assessment against her, which was the immediate appeal (from the Tax Court) being heard now:[7] The Tax Court did not accept that the respondent had provided consideration for the property but allowed the appeal on the basis that the reassessments for the 1988 and 1989 tax years were statute-barred. The reassessments for those years had been issued after the end of the normal reassessment period. Pursuant to subparagraph 152(4)(a)(ii) of the ITA, the Minister is permitted to reassess after the normal reassessment period if a taxpayer timely files a waiver. The burden of proof was on the Minister to establish that the reassessments were not statute-barred. While waivers for both years had been filed, the Tax Court found insufficient evidence that the 1988 waiver had been timely filed and concluded that the 1989 waiver had been filed one day late.
[8] .... Before this Court, the appellant contests the Tax Court’s conclusion on the respondent’s ability to challenge the underlying reassessments and the Tax Court’s determination that the reassessment for the 1989 tax year was statute-barred. ....
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A. The respondent’s ability to challenge the underlying reassessments
[10] The appellant submits that the Tax Court erred in law by allowing the respondent to challenge the validity of the underlying reassessments for the 1988 and 1989 tax years. It says that the validity and correctness of those reassessments were upheld in the earlier Tax Court proceeding in Makuz. The appellant submits that this Court’s decision in Gaucher v. Canada, 2000 CanLII 16513 (FCA), 2000 D.T.C. 6678, [2001] 1 C.T.C. 125 (F.C.A.) (Gaucher) is distinguishable, and that allowing the respondent to challenge the underlying assessments in her appeal is an abuse of process. The Tax Court rejected this argument.
[11] Gaucher, which was confirmed in Canada v. 594710 British Columbia Ltd., 2018 FCA 166, establishes that a taxpayer assessed by way of a derivative assessment under subsection 160(1) of the ITA may challenge the underlying assessment on which the derivative assessment is based.
[12] In Gaucher, the appellant was assessed under subsection 160(1) regarding a tax assessment of her former husband that had been confirmed in a proceeding at the Tax Court. The appellant challenged the subsection 160(1) assessment on the grounds that the underlying assessment was statute-barred, an argument that had not been raised by her former husband in his appeal. The Tax Court determined that it was not open to the appellant to raise the defence. This Court overturned that decision, concluding:[6] I am of the respectful view that the Tax Court Judge was in error in coming to this conclusion. It is a basic rule of natural justice that, barring a statutory provision to the contrary, a person who is not a party to litigation cannot be bound by a judgment between other parties. The appellant was not a party to the reassessment proceedings between the Minister and her former husband. Those proceedings did not purport to impose any liability on her. While she may have been a witness in those proceedings, she was not a party, and hence could not in those proceedings raise defences to her former husband’s assessment.
[7] When the Minister issues a derivative assessment under subsection 160(1), a special statutory provision is invoked entitling the Minister to seek payment from a second person for the tax assessed against the primary tax payer. That second person must have a full right of defence to challenge the assessment made against her, including an attack on the primary assessment on which the second person’s assessment is based. [13] The appellant attempts to distinguish Gaucher on the facts, as it did at the Tax Court. It submits that the respondent became involved in the Tax Court proceeding in Makuz after the death of her spouse, was responsible for making litigation decisions as the executrix of her late husband’s estate and was subject to discovery in that capacity. While the appellant acknowledges that the respondent was not herself a party to that litigation, it says that she could have raised the statute-barred argument. It distinguishes Gaucher on this basis since the appellant in that case "“could not”" raise defences to her former husband’s assessment: Gaucher at para. 6.
[14] Here, the Tax Court found that the respondent’s involvement in the Makuz group litigation was in a representative capacity only (as executrix of her late husband’s estate) and began approximately six years after the litigation had commenced. The Tax Court found that the respondent attended one meeting and paid legal fees but did not understand the nature of the appeal. The Tax Court concluded that for the respondent to be held responsible for raising the statute-barred issue in Makuz after her husband’s death was "“simply not tenable”": Reasons at paras. 95 and 101.
[15] Based on these findings, I do not accept the appellant’s arguments to distinguish Gaucher on the facts. The Tax Court correctly concluded that Gaucher supports the respondent’s ability to raise the statute-barred defence against her subsection 160(1) assessment.
[16] At the Tax Court, the appellant submitted that issue estoppel and abuse of process were grounds precluding the respondent from raising the statute-barred issue. The Tax Court found this "“misguided”" in light of Gaucher but addressed the submissions. The appellant does not appeal the Tax Court’s conclusions on issue estoppel but says that the conclusions on abuse of process were in error. It says that even if Gaucher applies (which it does not concede), an abuse of process argument was not before the Court in Gaucher, and accordingly, the decision does not give the respondent carte blanche to relitigate the underlying assessments.
[17] I acknowledge that there may be cases where, even if Gaucher applies to support a challenge of the underlying assessment, the circumstances of the challenge amount to an abuse of process. That is not the case here.
[18] The doctrine of abuse of process is rooted in a court’s inherent jurisdiction to prevent misuse of its process that would be unfair to a party or otherwise bring the administration of justice into disrepute. It is a discretionary remedy, characterized by its flexibility and unencumbered by the specific requirements of concepts such as issue estoppel: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para. 35; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35 and 37 (C.U.P.E.).
[19] Abuse of process by relitigation may exist where the parties are not the same (which is required to establish issue estoppel) but the litigation is found to be, in essence, an attempt to revisit the "“same issue”" as in a prior proceeding: C.U.P.E. at para. 37. Allowing the litigation to proceed may be considered to violate important principles such as judicial economy, consistency, finality and the integrity of the administration of justice: C.U.P.E. at para. 37.
[20] The appellant submits that although the statute-barred issue was not argued in Makuz, it goes to the validity of the underlying reassessments and the Tax Court implicitly accepted the validity of those reassessments when it confirmed their correctness. It says that the respondent is relitigating an issue decided by the Tax Court.
[21] The Tax Court determined, and I agree, that whether an assessment is statute-barred (and therefore null and void) is a separate issue from whether an assessment is correct: Reasons at paras. 107-109; see also Ereiser v. Canada, 2013 FCA 20 at para. 21; Rio Tinto Alcan Inc. v. The Queen, 2017 TCC 67 at paras. 154 and 173. The Tax Court concluded that the principle of abuse of process did not preclude the respondent from raising the statute-barred issue.
[22] I acknowledge the appellant’s argument that the validity of an assessment must be established before its correctness comes into play. In this way, it could be said that the validity of the underlying reassessments was effectively, although not explicitly, determined in Makuz. Nonetheless, it does not lead me to conclude that there is an abuse of process in this case.
[23] Ultimately, there must be a balancing of interests. In some cases, the second litigation may enhance the integrity of the judicial system because fairness dictates that the original result should not be binding in the new context: C.U.P.E. at para. 52; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 80. Here, the statute-barred issue in respect of the underlying reassessments was not before the Tax Court in Makuz, the respondent was not a party to that litigation and the Tax Court determined that it was "“untenable”" to expect her to have raised the issue. The respondent’s personal liability is now at issue. Fairness and respect for the "“basic rule of natural justice”" referred to in Gaucher outweigh concerns for possible inconsistency in the decisions.
[24] I conclude that the respondent is not precluded from raising the statute-barred issue for the underlying reassessments of the 1988 and 1989 taxation years. This ends the analysis for the 1988 tax year. As the Tax Court determined that there was insufficient evidence that a waiver was timely filed for that year, and the reassessment was issued after the end of the normal reassessment period, it was statute-barred. Whether the reassessment for the 1989 tax year was statute-barred turns on the analysis below. . Canada v. Csak
In Canada v. Csak (Fed CA, 2025) the Federal Court of Appeal allowed a Crown appeal, this from a Tax Court ruling "concerning the respondent’s liability, pursuant to subsection 160(1) [SS: 'Tax liability re property transferred not at arm’s length']".
Here the court considers abuse of process in it's re-litigation form:[18] The doctrine of abuse of process is rooted in a court’s inherent jurisdiction to prevent misuse of its process that would be unfair to a party or otherwise bring the administration of justice into disrepute. It is a discretionary remedy, characterized by its flexibility and unencumbered by the specific requirements of concepts such as issue estoppel: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para. 35; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35 and 37 (C.U.P.E.).
[19] Abuse of process by relitigation may exist where the parties are not the same (which is required to establish issue estoppel) but the litigation is found to be, in essence, an attempt to revisit the "“same issue”" as in a prior proceeding: C.U.P.E. at para. 37. Allowing the litigation to proceed may be considered to violate important principles such as judicial economy, consistency, finality and the integrity of the administration of justice: C.U.P.E. at para. 37. . 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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