|
Abuse of Process - Re-litigation (2). Derenzis v. Ontario
In Derenzis v. Ontario (Ont CA, 2025) the Ontario Court of Appeal partially allowed an appeal, this brought against a number of different R21 striking pleading grounds.
Here the court considers two forms of abuse of process in this auto insurance context, one for re-litigation and the other for collateral attack (though the latter was not identified as such):3. Did the motion judge err in striking the challenge to the constitutional validity of s. 55 [SS: 'Restriction on proceedings'] of the SABS and the challenge to s. 19 of the SABS based on an alleged breach of the Human Rights Code?
[23] Section 55 of the SABS requires a claimant to file an application for benefits but prohibits such an application if the claimant has failed to attend an insurer examination under s. 44. In the amended statement of claim, the appellants pled that the SABS permits violation of the insured’s person by way of the independent assessments, and violates ss. 7, 8, and 15 of the Charter. Section 19(3) of the SABS deals with the payment of attendant care benefits, which the claim alleged was discriminatory and breached the Human Rights Code.
[24] The motion judge struck both of these claims without leave to amend on the basis that they were an abuse of process. She made no error in her finding. Derenzis had asked the LAT to find that s. 55 of the SABS violated the Charter, but ultimately did not pursue that claim. This court has stated that it is an abuse of process to attempt to relitigate matters that were determined or could have been determined before the administrative tribunal: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470 at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491. That is precisely the situation with Derenzis, and the motion judge was correct to strike the pleading without leave to amend.
[25] Similarly, Derenzis challenges s. 19(3) of the SABS under the Human Rights Code, pleading that family members are treated differently in their compensation for providing care to injured family members. However, the legislation is clear that it is within the jurisdiction of the LAT to decide these disputes: Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sched. G, s. 5.1(4); Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. Derenzis made allegations of discrimination before the LAT which were rejected. She sought reconsideration which was also rejected. The motion judge properly found that any challenge to those findings lay with the Divisional Court. I agree with the finding that the pleading of this claim in the Superior Court of Justice constituted an abuse of process and was properly struck without leave to amend. . Jones-Moore v. Moore
In Jones-Moore v. Moore (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here where the "appellant’s statement of claim was struck under rr. 21.01(1)(b), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure".
Here the court characterizes 'abuse of process' in it's re-litigation form:[8] .... As this court recently held, “the doctrine of abuse of process serves to prevent the relitigation of issues that have already been decided … [and] can also apply to issues that could have been determined in prior proceedings”: Becker v. Walgate, 2025 ONCA 696, at para. 34; see also: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37; Aba-Aikhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, leave to appeal refused, [2013] S.C.C.A. No. 491, at para. 12. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a partly-successful motion to strike a claim in the context of a lawsuit relating to an administrative finding that the appellant's "application for a [SS: lawyer] licence was deemed abandoned."
Here the court considered the 'abuse of process' doctrine:[11] The doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 33; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 SCR 220, at para. 33; and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 35.
....
[21] We also agree with the non-LSO defendants that the proposed claim in negligence against them is an abuse of process because it is a claim the appellant could have made in his original statement of claim. As this court has recognized, the doctrine of abuse of process applies to claims that were made or that could have been made in a prior proceeding: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491; Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal refused, [2019] S.C.C.A. No. 438; The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 284. While the motion judge did not deal directly with this argument, it is an additional compelling reason why the appellant should not be allowed to proceed with his claim in negligence against the non-LSO defendants.
|
