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Civil Litigation - Orders - General

. Buduchnist Credit Union Limited v. 2321197 Ontario Inc.

In Buduchnist Credit Union Limited v. 2321197 Ontario Inc. (Ont CA, 2023) the Court of Appeal considered abuse of process as a separate ground (as opposed to contempt) to respond to breach of a court order:
[53] The court’s broad jurisdiction to craft an appropriate order in response to a breach of a court order arises from its well-established inherent jurisdiction to prevent an abuse of the court’s process. Section 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court express power to stay or dismiss a proceeding as an abuse of process. The deliberate breach of court orders strikes at the very heart of the administration of justice and can never be tolerated. It is beyond trite to say that a court order must be followed until it is set aside. Self-help remedies will never be tolerated because they undermine the rule of law. In United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 931, in the context of civil and criminal contempt, McLachlin J. (as she then was) wrote a strong affirmation of the connection between the rule of law and enforcement of the court’s process, which is apposite here: “The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”

[54] BCU’s creditor priority arguments ignore the consideration, in light of the motion judge’s finding of its breach, that its claim to the post-Mareva advances would never have arisen but for its breach of a clear court order. And they fail to take into account the court’s broad jurisdiction in response to BCU’s abuse of the court’s process by its breach of the Mareva Order. As this court noted in Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 92: “it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force”.

[55] The court’s broad jurisdiction in the face of a breach of a court order includes the power to dismiss or refuse to entertain a proceeding, strike pleadings, or adjourn a party’s request for relief: see, for example, Thrive Capital Management Ltd. v. Noble 1324, 2021 ONCA 722, 463 D.L.R. (4th) 377, at para. 22; Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), Laskin J.A. dissenting, aff’d 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6; Paul Magder Furs Ltd.; First Majestic Silver Corp. v. Davila Santos, 2015 BCCA 452, 391 D.L.R. (4th) 553, at paras. 19-25; Yao v. Li, 2012 BCCA 315, at para 41. The breadth of the court’s jurisdiction that would allow it to dismiss, refuse to entertain or adjourn proceedings in the face of a breach of an order clearly encompasses the jurisdiction to postpone the enforcement of a creditor’s claim arising solely from a breach of a court order.
. Libfeld v. Libfeld

In Libfeld v. Libfeld (Ont CA, 2023) the Court of Appeal emphasized to need for court orders to be clear:
[48] The ultimate sanction for non-compliance with a court order is a finding of contempt, which can be punishable by incarceration or other sanctions such as the imposition of a fine or community service. It also carries a heavy social stigma. The severity of these sanctions is one reason why courts have required orders to be sufficiently clear such that parties can understand what is needed to comply, and can arrange their affairs accordingly. Another reason has to do with efficiency and avoiding the allocation of court resources to resolve proceedings that could have been avoided with clearer orders: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at paras. 24, 35-36.
. Bouragba v. Ontario College of Teachers

In Bouragba v. Ontario College of Teachers (Div Court, 2023) the Divisional Court held that a withdrawal or discontinuance of a civil proceeding, made after an interlocutory order that established procedures for advancement of the case did not literally require the matter to continue - despite the earlier order:
Effect of the Court of Appeal Order

[17] Mr Bouragba argues that, in directing that the anti-SLAPP motion be remitted to the Superior Court, for a fresh hearing before a different judge, the Court of Appeal required that the anti-SLAPP motion be heard on the merits.

[18] In the ordinary course, an appellate court may order for a fresh hearing when it grants an appeal. Such an order returns the case to the court below to continue. Such an order does not foreclose the parties from settling the case, or the plaintiff from abandoning its claims. As an example, remitting a case for a new trial is a more common remedy in criminal than it is in civil cases. Such an order does not preclude the Crown from withdrawing the charges, or for the accused to entering a plea of guilty after plea-bargaining with the Crown. It is no different in a civil case where a matter is remitted for a fresh hearing.

[19] There are situations where an appellate court issues an order in the nature of mandamus, requiring a public official or decision-maker to fulfill his public obligation to attend to a matter. When these situations arise, the language of the court’s direction is clear. A routine order remitting a case back for a re-hearing is not such a situation.

[20] Mr Bouragba relies on Poffenroth Agri Ltd. v. Brown, 2020 SKCA 121, to argue that discontinuing the action is an abuse of process. This argument is misconceived. In Poffenroth the court gave directions about which of two courts should hear a jurisdiction motion. Purporting to discontinue the action in which the court had directed that the jurisdiction motion be heard was found to be an abuse of process, to defeat the court’s directions. This is not analogous to the present case. If, in the face of the court’s directions in Poffenroth, the plaintiff had decided to abandon all its claims against the defendants, with prejudice, the court’s directions respecting the proper forum for a jurisdiction motion would have been no impediment.

[21] The Master made no error in concluding that the order of the Court of Appeal directing a fresh hearing did not preclude granting leave to the plaintiff to discontinue the entire proceeding.

The Master’s Exercise of Discretion

[22] The Master correctly stated the test for granting leave to discontinue: R.23.01(1)(b); 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002, para. 47, Vitucci v. Dimakis, 2019 ONSC 6960, para. 18. The Master reasonably concluded that this case is closer to those where the case is not beyond the pleadings stage than those where the case is ready for trial. The Master identified the steps the parties would have to take to ready the case for trial if leave to discontinue was not granted. The Master concluded, reasonably, that both sides were seeking the same substantive result: dismissal of the proceeding.

[23] The Master identified potential prejudice arising from discontinuance of the proceeding and devised terms to address that potential prejudice. Discontinuance without terms would permit the plaintiff to re-commence proceedings (subject to limitations defences). Dismissal would not. Therefore, as proposed by the respondent, the Master added a term to the order precluding further litigation by the plaintiff of matters arising out of the events giving rise to the action: the court “further orders that the discontinuance shall be deemed a bar to any subsequent action(s) brought by the plaintiff arising from the same causes of action asserted in this Action.” The Master noted that Mr Bouragba would not be prejudiced respecting any claim for costs of the action because he was entitled to have this issue addressed under R.23.05(1).

[24] The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti-SLAPP motion, there is no resulting “prejudice” to the defendant.


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Last modified: 29-01-24
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