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Abuse of Process - Tort - 'Predominant Purpose of Other Indirect, Collateral and Improper Objective'. 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 - and then considers how the trial judge ERRED wrt the second element of this test ['predominant purpose of furthering some indirect, collateral and improper objective']:[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. ....
d. Maria did not prove that Jack’s predominant purpose was furthering an indirect, collateral and improper objective
[52] Jack’s appeal likewise succeeds based on the judge’s misapprehension of the second element of abuse of process.
[53] In the trial judge’s view, the second and third elements of abuse of process are intertwined. He found that Maria had proved both based on the following analysis:Jack had a collateral purpose when initiating the criminal process against Maria. Not only was Jack interested in ultimately painting Harold with the same criminal brush, he clearly sought to harm Harold’s personal and professional reputation to benefit his own reputation. The fact that Jack gave evidence that he asked Fritz [the lead investigator] and Pirraglia [the Crown prosecutor] to hold off announcing the withdrawal of the criminal charges against Maria so that he could pursue his own financial gain by way of a settlement with Harold is clear evidence of such collateral purposes.
In this Court’s view, having Maria charged a second time is itself an additional step in furtherance of Jack’s improper, collateral purposes. [54] The trial judge skipped a critical step in this analysis. Although he found that Jack had indirect, collateral, and improper objectives, he failed to determine whether the furtherance of such objectives was his predominant purpose in initiating the criminal investigation which led to charges against Maria.
[55] An improper and collateral motive does not amount to a predominant purpose. In Westjet Airlines Ltd. v. Air Canada, [2005] O.J. No. 2310, at para. 19, Nordheimer J. (as he then was) observed that commercial competitors are sometimes motivated to sue one another. This does not automatically imply that the predominant purpose is to further that objective:If the action itself is trumped up or completely spurious, the institution of the action for the goal of driving a competitor out of business might well be found to be instituted for an improper purpose since there would be no associated valid basis for the claim. However, if there is some basis for the claim, it seems to me that it then becomes difficult to characterize the action as having been instituted for an improper purpose just because a by-product of its successful prosecution may be the elimination of the defendant as a competitor. [56] Recognizing that Jack hoped to leverage a criminal prosecution against Maria for improper and collateral purposes (his vendetta against Harold) does not translate to a finding that this was his predominant purpose in filing police complaints against her. The trial judge found that Jack genuinely feared for his life and safety on July 21, 2010, when he gave the formal statement to police that led to Maria’s first arrest. This finding is irreconcilable with a finding that Jack’s predominant purpose in going to the police was to harm Harold. Likewise, although he was clearly motivated by malice in reporting Maria’s breach of her recognizance in June 2011, the resulting charge against her cannot be characterized as “trumped up or completely spurious”. As the trial judge found, there were valid and reasonable grounds for both of Maria’s arrests.
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