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Collateral Attack (2). Jones v. Quinn
In Jones v. Quinn (Ont CA, 2024) the Ontario Court of Appeal considered the law of 'collateral attacks':[96] The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see generally Yan v. Hutchison, 2023 ONCA 97, at para. 16, leave to appeal refused, [2023] S.C.C.A. No. 203; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 71-72; R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 23. The discretionary rule is intended to promote the orderly administration of justice and is a particular application of the broader abuse of process doctrine: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 22; Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at paras. 15-16; and R. v. Irwin, 2020 ONCA 776, 398 C.C.C. (3d) 304, at paras. 28-29.
[97] In some circumstances, it might constitute an abuse of process for a party to obtain relief that they had requested and then abandoned at an earlier stage of the proceeding. For example, it would be an abuse of process for a party, inferring from a judge’s comments that their motion will fail, to abandon the motion, and then try to seek the same relief before a new judge. However, that is clearly not what happened in this case, and the appellant fairly makes no claim of an abuse of process. . Regan v. Esterbauer
In Regan v. Esterbauer (Ont CA, 2024) the Court of Appeal held (interestingly) that where a solicitor's negligence claim, that alleged that a court finding was made 'negligently' by impugned representing counsel, amounts to a collateral attack on the finding (presumably as the only route to challenge it was an appeal against the related order):[10] In order to succeed in his claim against the respondents, Mr. Regan must establish that, but for the respondents’ alleged negligence or breach of contract, the contempt finding by Gray J. and the decision of this court on appeal would have been different. We reject each of the grounds Mr. Regan raises.
[11] First, as the motion judge correctly found, this challenge amounts to an impermissible collateral attack on the decisions of Gray J. and this court on appeal: Lang Michener LLP v. King, 2017 ONSC 1917, at paras. 26-32, rev’d on other grounds, 2018 ONCA 471. On that basis, the motion judge correctly allowed the motion to dismiss Mr. Regan’s action as an abuse of process.
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