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Abuse of Process - Stay Remedy. SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP
In SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP (Ont CA, 2025) the Ontario Court of Appeal considered an appeal from a stay order, here where the court below stayed one action [the 'A&B Action'] on the grounds that the defendant could have been added to another existing action - and that thus the continuance of the two proceedings was an abuse of process.
The court took this oppourtunity to consider the overlapping doctrines of multiplicity of proceedings, consolidation, joinder of parties, abuse of process (in it's R21.01(3)(d) 'frivolous and vexatious' context), and stays as an abuse of process remedy:[10] After setting out the procedural history, the motion judge turned to the parties’ submissions. A&B relied on this court’s decision in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, 274 O.A.C. 229, in support of its argument that the A&B Action was an abuse of process because the appellants ought to have moved under r. 26.02 for leave to add A&B as a defendant to the Main Action. The appellants relied on Abarca v. Vargas, 2015 ONCA 4, 123 O.R. (3d) 561, where this court concluded that an action against the plaintiffs’ own insurer based on the underinsured motorist coverage in their auto insurance policy was not an abuse of process, and permitted that action to proceed in tandem with a tort action against the other driver. The appellants asserted that, while the A&B Action arose out of the same factual matrix as the Main Action, the claims against A&B were distinct and sought unique, contingent relief against A&B. They also argued that the A&B Action was commenced separately to preserve their claim of solicitor-client privilege in the Main Action.
[11] The motion judge cited paras. 38 to 40 of Maynes, where this court concluded that there was an abuse of process where the plaintiffs had commenced a new action instead of seeking to add defendants to an existing action. He expressed the view that Abarca turned on “the legal and procedural complexities of multivehicle accidents involving tort, contract and insurance law, as well as administrative proceedings under the SABS.” He also noted that the Court of Appeal in Abarca distinguished Maynes on three grounds: (i) that the relief sought against the defendant insurer in the second action was distinct from the relief sought in the first action; (ii) that the claim against that defendant was not known when the first action was commenced; and (iii) that there was a real possibility that the claim against the insurer would be out of time, and the plaintiffs would be deprived of access to the underinsured motorist coverage. The motion judge observed that none of these features were present in the case before him.
[12] The motion judge concluded that “the reasoning in Maynes applies”. He stated that s. 138 [SS: 'multiplicity of proceedings'] of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), the rules of joinder in r. 5.02, and the provisions of r. 26.02 set out the appropriate procedures to follow in this case. The claim against A&B, in the absence of A&B’s consent, ought to have been advanced by way of a motion for leave to amend the Main Action under r. 26.02(c).
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[16] The motion judge concluded that the commencement of a separate action against A&B was an abuse of process, and that the appropriate remedy was a stay of the A&B Action and a direction that the appellants must move under r. 26.02 for leave to amend the Main Action if they wished to add A&B as a party and plead the allegations made in the A&B Action. ....
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D. Issues and Positions of the Parties
[18] The issues on this appeal are (1) whether the motion judge erred in concluding that the commencement of the A&B Action was an abuse of process; and (2) whether the motion judge erred in ordering a permanent stay of the A&B Action.
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(a) Avoiding a Multiplicity of Proceedings, Amendment and Joinder
[24] Section 138 of the CJA provides that “[a]s far as possible, [a] multiplicity of legal proceedings shall be avoided.” This is a general rule that informs the specific rules available to parties in civil proceedings concerning joinder of claims and parties, amendments to pleadings, consolidation and trial together of proceedings, and rr. 21.01(c) and (d) when invoked to stay or dismiss duplicative proceedings.
[25] Apart from r. 5.03, which requires all necessary parties to be joined as a party to a proceeding, the choice of parties to pursue in a proceeding is for the plaintiff or applicant. The rules of joinder are permissive; that is, a plaintiff may, but is not obliged to, pursue all of its claims involving the same factual circumstances in a single action.
[26] The rules respecting the amendment of pleadings to add a defendant to an action are also permissive. Rule 26.02 provides that a party may amend its pleading (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action; (b) on filing the consent of all parties and where a person is to be added or substituted as a party, the person’s consent; or (c) with leave of the court. Rule 5.04(2) provides that “[at] any stage of a proceeding the court may by order add, delete or substitute a party … on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” Again, a plaintiff may seek leave to add a defendant to an existing proceeding but is not required to do so.
[27] The joinder rules are similarly flexible and permit parties to move before the court for orders respecting the scope of a proceeding, particularly where the issue is whether claims should be advanced in a single proceeding.
[28] A defendant that objects to the joinder of claims or parties in a single action can bring a motion under r. 5.05 for relief against joinder. Where the court is satisfied that the joinder of multiple claims or parties in the same proceeding “may unduly complicate or delay the hearing or cause undue prejudice to a party”, the court can make various orders including ordering separate hearings; requiring one or more of the claims to be asserted in another proceeding; and staying the proceeding against a defendant pending the hearing of the other proceeding on condition that the defendant to the stayed proceeding is bound by findings made at the other hearing. Rule 5.05 reflects the reality that there may be any number of reasons why, even where the factual matrix is the same, it might be preferable for claims or parties to be pursued in separate proceedings.
[29] By contrast, r. 6 is available so that parties can seek consolidation or trial together of two or more proceedings that are pending in the court. An order can be made where the court is satisfied that (a) the proceedings have a question of law or fact in common; (b) the relief claimed in the proceedings arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason such an order should be made. The motion is necessarily brought on notice to the parties in all affected proceedings. The court can order that the proceedings be consolidated or heard together or one after the other, that one proceeding be stayed while the other proceeds, or that claims in one proceeding be asserted by way of counterclaim in another, and may give such directions as are just to avoid unnecessary costs or delay.
(b) Dismissing or Staying Duplicative Proceedings for Abuse of Process
[30] Where a plaintiff or plaintiffs have commenced multiple proceedings against a defendant, a defendant can move for relief before the court to dismiss or stay one or more of the proceedings.
[31] The authority to dismiss or stay an action that is an abuse of process derives from r. 21.01(3)(d) of the Rules (referring to an action that is frivolous or vexatious or is otherwise an abuse of the process of the court) and the inherent and residual jurisdiction of the court. The abuse of process doctrine “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”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved, 2002 SCC 63, [2002] 3 S.C.R. 307).
[32] Rule 21.01(3)(d) has been invoked to fill a gap when all of the elements of issue estoppel or res judicata could not be made out, but where the defendant asserts that the commencement of a second proceeding that overlaps with one already determined (through court order or settlement) would work an injustice: see e.g., Niagara North Condominium Corp. No. 125 v. Waddington, 2007 ONCA 184, 222 O.A.C. 66. More recently, r. 21.01(3)(d) has been relied on in support of motions to dismiss or stay an action where there is another, overlapping, proceeding pending. While 21.01(3)(c) permits a defendant to move to dismiss or stay an action on the ground that “another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter” (emphasis added), this rule does not assist a defendant who has not been sued in the other proceeding.
[33] Even where r. 21.01(3)(c) applies, that is, where the parties and subject matter are the same, a dismissal or stay of the second proceeding is not automatic. The court must be satisfied that such relief is warranted in the particular circumstances of the case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party. Factors relevant to prejudice include the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at paras. 15-16.
[34] Where the court finds that a proceeding is an abuse of process, the appropriate remedy will be case-specific. As this court observed in Abarca, at para. 29:There is no law supporting the conclusion that an abuse of process must lead inevitably to the dismissal of the associated claim. In each case the court must assess the gravity of the abuse in determining the severity of its response, bearing in mind the principle of proportionality. This approach is not surprising, since instances of abuse of process fall across the spectrum from egregiously contemptuous conduct to relatively minor breaches of procedural rules. (c) Maynes, Abarca, and other relevant cases
[35] The central issue before the motion judge was whether the A&B Action was an abuse of process. While it is not clear whether the parties confined their arguments to these two cases, the motion judge approached the issue as depending on which of this court’s decisions in Maynes and Abarca he should follow. Keeping in mind that the determination of whether a proceeding is an abuse of process depends on all of the relevant circumstances (see Birdseye Security Inc., at para. 15), it is helpful to recall the facts and reasoning of each case.
[36] In Maynes the plaintiffs had commenced three actions. The third repeated substantially the same allegations against the same defendants in two other ongoing actions and added new defendants. The motion judge granted the defendants’ motion to strike the statement of claim in the third action and dismissed the plaintiffs’ cross-motion seeking leave to amend that claim or to join the claim to the two ongoing actions. A number of issues were before this court on appeal: whether the third action was an abuse of process; whether the third action disclosed a reasonable cause of action against the new defendants; and whether any remaining claim against the new defendants ought to have been joined or consolidated with the ongoing actions.
[37] This court concluded that the third action was an abuse of process. The pleadings in the ongoing actions had closed and documentary and oral discovery in those actions was substantially complete. The plaintiffs initially sought to combine the ongoing actions and to add the new defendants and the claims against them to those proceedings, providing a draft amended statement of claim. The plaintiffs did not obtain the consent required by r. 26.02(b) to add a party after the pleadings had closed. Instead of bringing a motion under r. 26.02(c), the plaintiffs commenced the third action and sought joinder or consolidation of that action with the ongoing actions. The third action duplicated the same five claims the plaintiffs made against the original defendants in the ongoing actions and added new claims for declaratory relief against the new defendants.
[38] It was in those circumstances that this court upheld the finding in the court below that the third action constituted an abuse of process. This court held that the motions judge correctly identified the claims against the original defendants in the new action as an abuse of process “because they were virtually identical to the claims asserted against them in the [ongoing actions]”, and that if such claims were allowed to proceed “it would amount to a relitigation of the same issues as between the same parties”: at para. 36. This court went on to state that the claims against the new defendants were also an abuse of process because the purpose of the commencement of the new action was to name the added defendants as parties to the related litigation, effectively circumventing the express procedural requirement in r. 26.02(c) that leave of the court be obtained to add a non-consenting party to the proceeding after pleadings were closed.
[39] This court also upheld the motions judge’s dismissal of the new action on the basis that it did not disclose a reasonable cause of action against the new defendants. As such, there was no issue about the appropriate remedy for abuse of process, and the court did not have to consider the alternative claim for consolidation or trial together of the actions.
[40] In Abarca the plaintiffs commenced a tort action against an underinsured driver following a motor vehicle accident. This court upheld a motion judge’s finding that the plaintiffs, in commencing a new action, had abused the court’s process by disregarding an earlier direction of the court to bring a motion to amend a claim on notice. Lauwers J.A. held that this abuse of process, which he characterized as minor, did not warrant a dismissal of the second action because the result would be a potential loss of underinsured coverage by operation of a limitation period. He concluded however that the motion judge had erred in finding that, absent the earlier direction, it was an abuse of process for the plaintiffs to start a new action against the insurer in relation to the underinsured motorist coverage. He disagreed with the premise that starting a new action was necessarily abusive, and he rejected Maynes as the “ruling precedent”. He pointed out a number of circumstances in Maynes that were not present in the case before him, including that the third action had been commenced after the plaintiffs failed to obtain consent to add the new defendants and claims to the ongoing proceedings; that five of the six claims asserted in that action were “virtually identical” to the original claims and the sixth was for declaratory relief alone and disclosed no reasonable cause of action; and that “key representatives” of the new defendants were already involved in the original actions.
[41] I read this court’s decision in Abarca as rejecting the general principle that A&B advances here: that it is always an abuse of process when a second action is commenced in circumstances where the first action could have been amended to add a defendant or claim. Rules 26.02 and 5.04 govern the amendment of pleadings and adding parties to an action, but do not preclude the issuance of separate proceedings even if they involve common factual matrices and overlapping parties. Rather, the rules of consolidation and joinder exist to address situations where actions should be tried together or consolidated.
[42] I agree with the appellants that the result in the present case did not depend on whether Maynes or Abarca should be followed, but on how the principles in those and other cases respecting abuse of process and overlapping proceedings ought to be applied. In my view Maynes reflects the application of the relevant rules to the facts of that case, but does not mandate a finding of abuse of process in every case where a second proceeding is commenced instead of adding a defendant to an overlapping existing proceeding, nor does it preclude consolidation or other procedural orders as an appropriate response to a multiplicity of proceedings.
[43] Subsequent cases have recognized that whether the commencement of a second and overlapping action is an abuse of process will depend on the particular factual circumstances, including the purpose of the commencement of the subsequent action. In a number of cases, judges have determined that a second action was an abuse of process when it was commenced in order to circumvent a court order, such as a costs order (see Living Water (Pressure Wash Services) Ltd. v. Dyballa, 2011 ONSC 5695), or an order requiring the posting of security for costs (see Carbone v. DeGroote, 2018 ONSC 109). In Nuco Jewelry Products Inc. v. Lynott, 2016 ONSC 5532, the court found that claims alleging conspiracy and fraud were inextricably intertwined with the liability of a defendant to a related action, and the defendants’ liability was alleged to be joint and several. The court stayed the second action to permit the plaintiff to bring a motion to add a new defendant to the related action, anticipating that the stay could be lifted if such relief were refused.
[44] In other cases, judges have declined to find an abuse of process where a second and overlapping action was commenced, and instead have addressed concerns about a multiplicity of proceedings by granting orders for consolidation or trial together: see e.g., Zhu v. Siew, 2020 ONSC 7045, 153 O.R. (3d) 219; Dimakos v. Dimakos, 2021 ONSC 3248; and Howlett v. Northern Trust Company, 2023 ONSC 4531.
[45] These cases recognize that, while the commencement of a second proceeding may give rise to concerns about overlapping questions of law and fact or the risk of inconsistent verdicts, it is not necessarily an abuse of the process of the court. While a party might require a remedy in order to avoid prejudice caused by a multiplicity of actions, that remedy is frequently an order under r. 6.01 for consolidation or trial together, with appropriate procedural directions to address the interests of all parties. At paras 46-63 the court considers these doctrines on the case facts.
. R. v. Babos
In R. v. Babos (SCC, 2014) the Supreme Court of Canada considers when an abuse of process may justify a stay, here in a criminal case:[1] This appeal provides the Court with an opportunity to revisit the law of abuse of process as it relates to state conduct that impinges on the integrity of the justice system but does not affect trial fairness — sometimes referred to as the “residual category” of cases for which a judicial stay of proceedings may be ordered. In particular, we are tasked with clarifying the approach to be followed when determining whether a stay of proceedings should be ordered where such conduct is uncovered.
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A. Abuse of Process and Stays of Proceedings
[30] A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.
[31] Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.
[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57). [33] The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids “schizophrenia” in the law (O’Connor, at para. 71). But while the framework is the same for both categories, the test may — and often will — play out differently depending on whether the “main” or “residual” category is invoked.
[34] Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.
[35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
[36] In Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, this Court described the residual category in the following way:For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91] [37] Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657), as does using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh (1985), 1985 CanLII 3557 (NS CA), 68 N.S.R. (2d) 247 (S.C., App. Div.)).
[38] Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.
[39] At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
[40] Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed (Tobiass, at para. 92). When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.
[41] However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.[5] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
[42] This Court’s recent decision in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, attests to the need for balancing when the conduct in question falls solely within the residual category. In Bellusci, the accused was assaulted in the back of a van by a prison guard while he was shackled and handcuffed. The accused was charged with assaulting the guard and intimidating a justice system participant. Fish J., writing for a unanimous Court, upheld the trial judge’s decision to issue a stay of proceedings for state misconduct falling in the residual category. In doing so, he noted that the trial judge hadappreciated the need to balance the competing interests at play in contemplating a stay of proceedings. He expressly took into account the difficult position of prison guards, the importance to the justice system of ensuring their protection, the seriousness of the charges against the accused, the integrity of the justice system, and the nature and gravity of the violation of Mr. Bellusci’s rights. Only then did he conclude that a stay was warranted. [Emphasis added; para. 29.] [43] The Ontario Court of Appeal has also recently emphasized the importance of the balancing stage when the residual category is in issue:In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. [Emphasis added.] (R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60)
[44] Undoubtedly, the balancing of societal interests that must take place and the “clearest of cases” threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare” (Tobiass, at para. 91). But this is as it should be. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).
[45] To recapitulate, while the framework is the same for both categories, the test may — and often will — play out differently depending on whether the “main” or “residual” category is invoked.
[46] The following hypothetical may serve as a useful illustration. Take a case where it is discovered, after trial, that the police have tampered with the jury in order to secure the conviction of an accused. Manifestly, the police conduct would impinge on the accused’s right to a fair trial — but it would also impinge on the integrity of the justice system.
[47] Ordering a new trial would probably redress the unfairness of the original trial. But the inquiry would not end there. The court would also have to decide whether ordering a new trial, or some other remedy, would suffice to dissociate it from the prejudice occasioned to the integrity of the justice system by the police misconduct. If no remedy would suffice, the court would have to engage in the balancing process and determine whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits. Given the seriousness of the misconduct — jury tampering strikes at the very heart of the criminal justice system — the residual category might well necessitate a stay of proceedings to redress the threat to the integrity of the justice system, even though the unfairness that marred the first trial could be cured by a second trial. . Waxman v. Waxman
In Waxman v. Waxman (Ont CA, 2022) the Court of Appeal considered a permanent stay as a remedy at trial for non-disclosure of litigation-related settlements which the court held to be an abuse of process:[42] The appellants argue that an automatic stay is a “draconian” remedy for abuse of process in a case such as this and that the motion judge should have exercised his discretion to redress the failure to disclose through other means.
[43] The appellants further submit that while an automatic stay may be justified in the face of Mary Carter agreements that are not disclosed, in this case, “the plaintiffs did nothing wrong and did not deceive or mislead anyone.” They argue the motion judge erred by applying an automatic stay in these circumstances without considering the alternatives.
[44] I disagree.
[45] In Aecon, MacFarland J.A. stated, at para. 16:The obligation of immediate disclosure is clear and unequivocal. It is not optional. Any failure of compliance amounts to abuse of process and must result in consequences of the most serious nature for the defaulting party. Where, as here, the failure amounts to abuse of process, the only remedy to redress the wrong is to stay the Third Party proceedings and of course, by necessary implication, the Fourth Party proceedings commenced at the instance of the Third Party. Only by imposing consequences of the most serious nature on the defaulting party is the court able to enforce and control its own process and ensure that justice is done between and among the parties. To permit the litigation to proceed without disclosure of agreements such as the one in issue renders the process a sham and amounts to a failure of justice. [Emphasis added.] [46] Citing Aecon, the motion judge reiterated, at para. 44, “The Court of Appeal described the obligation to disclose as clear and unequivocal and noted that its breach constituted an abuse of process. Only by imposing a stay is the court able to control and enforce its own process to ensure that justice is done.”
[47] I see no basis on the facts of this case to depart from the clear consequences for a breach of this principle set out by this court in Aecon and affirmed a number of times since then, including in Handley Estate, at para. 45, and most recently in Tallman, at para. 28. In Tallman, after imposing the automatic stay as the only remedy appropriate for an undisclosed settlement agreement, the court added, at para. 28, “This remedy is designed to achieve justice between the parties. But it does more than that – it also enables the court to enforce and control its own process by deterring future breaches of this well-established rule.”
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