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Abuse of Process - Costs. 9383859 Canada Ltd. v. Saeed
In 9383859 Canada Ltd. v. Saeed (Ont CA, 2023) the Court of Appeal considers (but does not rule on) a costs argument that appeal courts, despite being creatures of statute, have "implicit powers that derive from [their] power to control [their] own process":Costs
[13] The respondents make a novel argument in support of their submission that a costs award should be made against Mr. Singh personally. That submission is premised on the proposition that appellate courts, while creatures of statute, nevertheless have “implicit powers that derive from [their] power to control [their] own process”: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27. These powers include the ability “to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice”: Mukwa v. Farm Credit of Canada, 2022 ONCA 320, at para. 24.
[14] According to the respondents, 938’s litigation strategy, as implemented by Mr. Singh, amounts to an abuse of process. Therefore, to protect the court’s process, they submit that Mr. Singh should be ordered to pay costs personally, similar to orders made in the Superior Court against non-parties who are directors, shareholders, or principals of corporations, as described in 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641.
[15] It is unnecessary for me to determine whether this court has the power to make such an order because I am not satisfied that Mr. Singh’s litigation strategy amounts to an abuse of process. Instead, it appears that Mr. Singh has used every appeal process available to 938. While I can understand the frustration the respondents are feeling with the delays in this litigation, this conduct does not qualify as an abuse of process. In any event, if this court does have the power to make the order sought, it should, in my view, be reserved for the clearest of cases.
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