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Abuse of Process - Understanding

As far back as 2003 [Toronto (City) v. C.U.P.E., Local 79 (SCC, 2003)], the doctrine of 'abuse of process' related to the finality of both proceedings and specific fact-findings. For myself - who practised during this period - I always think of it as stemming most immediately from the issue estoppel doctrine which barred re-opening issues - but only when prior findings were between the same parties. When faced with litigation between different parties on the same issue courts rebelled against the possibility of inconsistent findings - thus the creation/application of 'abuse of process' to avoid this outcome.

But since then it has blossomed into a broad range of forms, now applying for example to the 'abusive' exercise of a statutory automatic stay (under RTA law) or to the failure to immediately advise opponents when part of multi-party litigation was partially settled (the Handley Estate line of cases) - and much more.

Abuse of process is an ill-defined 'doctrine' that has grown, perhaps exponentially, recently. Honestly, I hesitate to consider it a doctrine as that term implies a conceptual consistency that allows for functional definition. The true role of abuse of process is one of court management, one of efficiency and even one of 'saving face'.

Abuse of process is obviously a means for the courts, frustrated by a sense of overwork and the poor quality of the efforts of unrepresented parties (and also represented parties that don't move cases along quickly enough for the court's taste), to stay what they view as hopeless proceedings and thus clear their dockets.

Likely the most recent and best evidence of the functional role of 'abuse of process' is found in Ontario's R2.1 of the Rules of Civil Procedure (RCP), where it is ranked equally with the (equally fuzzy and pejorative) doctrines of 'frivolous' and 'vexatious'. And while abuse of process may be advanced by a party alone [SPPA 23(1); CJA 140(5) and the common law], when coupled with the authority of the court to "on its own initiative, stay or dismiss a proceeding" [RCP 2.1.01], this deck-clearing function becomes undeniable.

Of the constituent terms: 'abuse' and 'process', the latter is plain enough to conclude that it's not a substantive concept - it is 'procedural' through-and-through. Therefore it's essence lies in the term 'abuse', a term which is plain enough when we harken to it's use in such terms as: 'sexual', 'physical', 'emotional', 'substance' and 'alcohol' abuse. These usages leaves no doubt of the highly judgmental content that the term "abuse" has generally, and we should not be shy in recognizing that ethical severity here.

Noteworthy as well is that abuse of process has been located as a category of breach of procedural fairness in the administrative context, and as a free-standing tort.

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Last modified: 29-05-24
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