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Abuse of Process - Tort - General. Konstan v. Berkovits
In Konstan v. Berkovits (Ont CA, 2024) the Ontario Court of Appeal set out criteria for the tort of abuse of process:[27] As held in Harris v. Glaxosmithkline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, leave to appeal refused, [2011] S.C.C.A. No. 85, at paras. 27-28, a plaintiff alleging abuse of process must prove that:1. The plaintiff was 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. The plaintiff has suffered special damages as a result. . Globe POS Systems v. Visual Information Products Inc.
In Globe POS Systems v. Visual Information Products Inc. (Div Court, 2022) the Divisional Court stated the elements of a abuse of process tort claim:(b) No Tenable Claim for Abuse of Civil Process in this Case
[16] In any event, the proposed counterclaim cannot meet the test for the tort of abuse of civil process. That test, as held by the Ontario Court of Appeal in Smith v. GlaxoSmithKline Inc., 2010 ONCA 872, para. 27, is as follows:i. the plaintiff is a party to a legal process initiated by the defendant;
ii. the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;
iii. the defendant took or made a definite act or threat in furtherance of the improper purpose; and
iv. some measure of special damage has resulted. [17] The proposed counterclaim cannot meet branches (ii) and (iii) of the test. No “indirect, collateral or improper objective” is pleaded. Inducing Rossi to leave his subsequent employment is not an “indirect, collateral or improper objective.” That was one of the direct goals of the lawsuit – to preclude Rossi from working for Globe in alleged breach of his employment contract and fiduciary duty. The propriety of Rossi’s employment with Globe was the very essence of the claims asserted by Visual, and cannot be characterized as an “indirect, collateral and improper objective.” If Visual’s allegations are devoid of merit – as seems to be the premise of the counterclaim – then the course available to Globe and Rossi is to defend those claims and seek costs.
[18] The proposed counterclaim does not plead “a definite act or threat in furtherance of the improper purpose.” Instead, Globe argues that “the essence of [Visual’s] legal proceeding was to threaten the business and economic prospects of Globe. In other words, the alleged “definite act” is the bringing of the lawsuit – there is no “conduct” alleged other than the lawsuit. To quote from Teledata Communications Inc. v. Westburne Industrial Enterprises Ltd., 1990 CarswellOnt 812, para. 9:… the bringing of an action, even if factually groundless, together with wrongful motives for bringing the action, are not sufficient to constitute the tort of abuse of process. What lies at the heart of the cause of action is an act, or threat of an act, outside the ambit of the action. The essence of the action therefore is the use of legal process to gain an end which the legal process does not entitle the plaintiff to obtain. No “act or threat of an act outside the ambit of the action” is pleaded. What is relied upon instead are alleged consequences of the lawsuit itself – Rossi’s resignation and Globe’s alleged losses as a result. Malicious use of the litigation process itself is not actionable; that kind of conduct is addressed in the exercise of the court’s discretion as to costs: P.H. Osborne, The Law of Torts (5th ed., 2015), pp. 278-279. Earlier, when considering the principle that commencing a civil proceeding by itself cannot constitute a constituent element of a tort, the court made an exception for the tort of abuse of process (due to it's nature of involving 'proceedings'):[14] In its factum, Globe argues that the Associate Justice erred in law in making the following statement:Commencing a lawsuit does not give rise to a civil cause of action. Issuing a civil claim is not an unlawful act, and it cannot give rise to civil liability. (Decision, para. 16) This statement, plucked from the context in which it was made, is not consistent with the test for the tort of abuse of civil process, which carves out a narrow exception to the general principle stated by the Associate Justice. The context in which this statement arises, however, was an analysis of the tort of unlawful interference with economic relations. Bringing a lawsuit, in that context, is not an “unlawful means”. It is a lawful means for seeking redress. . Harris v. Glaxosmithkline Inc.
In Harris v. Glaxosmithkline Inc. (Ont CA, 2010) 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. . 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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