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Abuse of Process - Tort. Harris v. Glaxosmithkline Inc.
In Harris v. Glaxosmithkline Inc. the Court of Appeal comments on the elements of the tort of abuse of process:Abuse of Process
[27] At para. 48 of his reasons, the motion judge defined the constituent elements of the tort of abuse of process as follows:The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted: Hawley v. Bapoo (2005), 2005 CanLII 36451 (ON SC), 76 O.R. (3d) 649 (Ont. S.C.J.) at para. 86, var'd (2007), 2007 ONCA 503 (CanLII), 156 C.R.R. (2d) 351 (Ont. C.A.); Metrick v. Deeb (2002), 14 C.C.L.T. (3d) 297 (Ont. S.C.J.) at para. 9, aff'd (2003), 2003 CanLII 804 (ON CA), 172 O.A.C. 229 (C.A.), leave to appeal ref'd, [2003] S.C.C.A. No. 378, 195 O.A.C. 398n (S.C.C.); Scintilore Explorations Ltd. v. Larache, 1999 CanLII 14948 (ON SC), [1999] O.J. No. 2847 (S.C.J.); P.M. Perell, "Tort Claims for Abuse of Process" (2007) 33 Adv. Q. 193 at p. 193; J. Irvine, "The Resurrection of Tortious Abuse of Process" 47 C.C.L.T. 217. [page670] [28] In my view, the motion judge correctly defined the elements of the tort of abuse of process. His conclusion finds support in academic writings and an established line of authorities.
[29] The appellant referred to this court's decision in Metrick v. Deeb, 2003 CanLII 804 (ON CA), [2003] O.J. No. 2221, 172 O.A.C. 229 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 378, as authority for the proposition that the tort of abuse of process consists of only two elements: (1) using the legal process for an improper or collateral purpose; and (2) the need for a definite act or threat in furtherance of the illegitimate purpose.
[30] Those two elements were taken from a passage in Fleming, The Law of Torts, 9th ed. (North Ryde, N.S.W.: LBC Information Services, 1998), at p. 668, which the court referred to as "instructive". In its brief endorsement, the court directed its attention to the second of the two elements and found that it had not been made out on the evidence.
[31] Metrick should not be taken as authority for the proposition that the tort of abuse of process consists of only two elements. The court in that case was not called upon to consider the constituent elements of the tort. It was simply responding to the particular issues raised in that case, one of which related to the need for a definite act or threat in furtherance of the illegitimate purpose. In that regard, the court found [at para. 3] the following quote from Fleming instructive: "Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions" (emphasis added). . Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada)
In Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada) (Ont CA, 2014) the Court of Appeal noted plainly that abuse of process was a tort:[83] If there is any evidence that Chartis intentionally misled the court or subverted the course of justice, there are remedies available, subject to any defences Chartis may have, including potential limitation defences. It is open to E & Y to move for appropriate relief, including perhaps the variation of the Houlden Order to include an assignment of CGT’s cause of action for a breach of the duty of good faith. Alternatively, E & Y might have a claim for abuse of process on the basis of a collateral attack on a court order: Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63 (CanLII), 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 34. Abuses of the court’s process are actionable in tort: Harris v. Glaxosmithkline Inc., 2010 ONCA 872 (CanLII), 2010 ONCA 872, 106 O.R. (3d) 661, at para. 27. In addition, although perhaps not available in these circumstances, an action for civil contempt might be available for breach of the strict terms of a court order: see Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614.
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