Simon's Megalomaniacal Legal Resources

Abuse of Process - Administration of Justice into Disrepute

. Canadian National Railway Company v. Kitchener (City) [administration of justice into disrepute]

In Canadian National Railway Company v. Kitchener (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an order granting partial summary judgment in favour of the respondent, Hogg Fuel & Supply Limited (“Hogg”), dismissing CN’s claims relating to coal tar contamination on its property".

The court considers the 'bringing of administration of justice into disrepute' as an aspect of the abuse of process doctrine:

[11] The motion judge rejected Hogg’s argument that the coal tar contamination claims were res judicata. He reasoned that because a final determination on the merits was not made in the 1989 Action, this doctrine did not apply. He was satisfied, however, that the coal tar contamination claims amounted to an abuse of process and accordingly dismissed them, concluding that “[i]f those claims were impossible to try fairly in the 1989 [A]ction, they are equally impossible to try fairly in this action.” He explained that the abuse of process doctrine is a flexible one that focuses on “the integrity of the administration of justice and the court’s inherent power to prevent the misuse of its procedure in a way that would bring the administration of justice into disrepute.”

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7. Bringing the Administration of Justice into Disrepute

[42] Nor did the motion judge err in concluding that allowing the 2014 Action to proceed would bring the administration of justice into disrepute. To begin, CN’s argument that there are no finality concerns in this case must be rejected. As the motion judge observed, CN is seeking to advance claims that Myers J. has already found could not be tried fairly and to accept CN’s argument would obviously undermine the finality of that decision.

[43] Further, I am not convinced that fairness concerns would ultimately weigh in CN’s favour. To be sure, dismissing the coal tar claims might result in some unfairness to CN in that coal tar could continue migrating onto its property. However, in failing to advance the 1989 Action in a timely fashion, CN is clearly the author of its own misfortune. Because of its delay in advancing the 1989 Action, it is now not possible to identify the source and location of the original coal tar deposit. Put another way, any consideration of unfairness to CN must be weighed against the unfairness to Hogg, which has lost the ability to claim against the original polluter. While Hogg is also responsible for not diligently advancing its crossclaim and counterclaim in the 1989 Action, this must be considered in the wider context of the 1989 Action, which was commenced by CN.

[44] Allowing CN to litigate claims that have already been dismissed is an abuse of process. CN had the opportunity to have its continuing coal tar claims tried on the merits, but as Myers J. noted, it delayed for 25 years and failed to preserve evidence, rendering it impossible to have the claims adjudicated fairly.

[45] Significantly, the cover letter CN’s counsel sent when serving the 2014 Action, which preceded the dismissal of the appeal in the 1989 Action, advised that CN had commenced the 2014 Action in part to protect CN’s rights in the event Myers J.’s order was not overturned on appeal. This suggests that had the 1989 Action been allowed to proceed, the 2014 Action would not have been necessary, which reveals the 2014 Action as a poorly veiled attempt by CN to resurrect arguments the court has already rejected.

[46] This cover letter also raises an interesting limitations issue that is not clearly answered in CN’s submissions on this appeal. In the letter, counsel writes that CN is seeking damages in the 2014 Action from the historical coal tar contamination that occurred during the applicable limitation period as well as the ongoing contamination. However, CN’s statement of claim in the 2014 Action contains no such restriction and its reply and defence to the counterclaim pleads that the 2014 Action is not barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B and alternatively that the Limitations Act “would only apply to damages that became due and payable more than two years prior to the issuance of the Notice of Action”. Given that the notice of action was issued on September 23, 2014, CN’s position appears to be that it can recover damages back to September 2012. If so, CN is claiming damages for the two-year period before Myers J.’s dismissal of the 1989 Action.

[47] Indeed, in its factum on this appeal, CN seeks damages relating to coal tar migration that has occurred since 2012. At the oral hearing, however, CN variably suggested that it seeks damages since 2012 or 2014; which represents a very important distinction as CN is potentially seeking damages for migration that occurred before the dismissal of the 1989 Action. All of which is to underscore the difficulty with CN’s claims and why they, as presently constituted, must be treated as an abuse of process.

[48] The motion judge did not err in concluding that the administration of justice would be brought into disrepute if the coal tar claims in the 2014 Action were allowed to proceed.

. Mazo v. Law Society of Ontario

In Mazo v. Law Society of Ontario (Div Court, 2024) the Ontario Divisional Court dismissed a JR, here against a Law Society Tribunal's refusal to issue a stay (for abuse of process) of misconduct charges.

Here the court sets out JR prematurity doctrine, and the limits on it's exceptions - including that abuse of process is not per se one:

[13] The other aspect of the serious issue to be heard in this application, involves the question of prematurity. Justice Davies left this issue open in her Rule 2.1 and extension findings. In David v. Law Society of Ontario, 2021 ONSC 4606 at paragraph 14, the Divisional Court held as follows,

It is well established that, absent exceptional circumstances, the court will not interfere with an administrative process until it has run its course. To do otherwise would unnecessarily fragment the proceedings and cause delay: Landry v. Law Society of Upper Canada, 2011 CanLII 99902 (Div. Ct.), at paras. 15-19. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para.33, exceptional circumstances are very narrow and do not even include “[c]oncerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts … as long as that process allows the issues to be raised and an effective remedy to be granted.

[14] In paragraph 16 of that decision, the court found that a claim of an abuse of process did not constitute exceptional circumstances. Mr. Hutchison submits that this abuse of process is different because it is brought under the residual or second head of the abuse of process doctrine whereby the court could find that the hearing itself could bring the administration of justice into disrepute. On that basis, we need to stop the hearing in order to prevent the very harm that the doctrine of abuse of process is designed to denounce and prevent.

[15] But, in my view, a lot of things can happen.

[16] The Law Society may not seek to introduce the disputed documents into evidence. The Law Society Tribunal could exclude them and draw an adverse credibility finding against the investigator. Ms. Mazo could win the proceeding and have all charges dismissed against her. Any of those findings could make this proposed judicial review proceeding moot. In other words, there are lots of possible outcomes irrespective of the alleged abuse of process.

[17] Fragmentation of the proceeding causes delay and extra costs. It’s inefficient and therefore generally not allowed unless absolutely necessary to avoid special circumstances or harm. In precedents like David, allegations of abuse of process were found not be a basis for a stay. Harm might occur or it might not.

[18] If the proceeding goes ahead, and ultimately the court finds that an abuse of process occurred, there can still be public denunciation and punitive costs awarded to compensate Ms. Mazo.

[19] In light of the clear findings though of Justice Schabas for the panel in Kahissay v. Insurance, 2023 ONSC 3650 at paragraph 9, I cannot find that an abuse of process can be a basis for interlocutory fragmentation of an administrative proceeding. In my view, this proceeding has no realistic chances of success on the merits because it is premature.

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[22] Given that the alleged abuse of process arguments will still be available to Ms. Mazo at the Law Society Tribunal and before the court in any ultimate appeal of the Law Society decision (after an intermediate appeal to the Law Society Appeal Tribunal of course), the balance of convenience favours getting the hearing done so that all necessary findings of fact and law on all issues will be available to the Appeal Tribunal and the court if necessary.