Simon's Megalomaniacal Legal Resources

Abuse of Process - General

. La Française IC 2 v. Wires

In La Française IC 2 v. Wires (Ont CA, 2024) the Court of Appeal cites general doctrine of abuse of process:

[8] Abuse of process is a broad, flexible doctrine. It serves as an adaptable judicial tool to address circumstances that threaten the fairness and integrity of the court’s process and the administration of justice. It is not restricted to preventing the re-litigation of issues or addressing issues that could have been raised in previous proceedings. Rather, it becomes engaged “to prevent the misuse of [the court’s] procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 39-41, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A. (dissenting), rev’d 2002 SCC 63, [2002] 3 S.C.R. 307 and R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007, per McLachlin J. (dissenting). See also Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at paras. 34-35.

. Janssen Inc. v. Apotex Inc.

In Janssen Inc. v. Apotex Inc. (Fed CA, 2023) the Federal Court of Appeal explains the doctrine of abuse of process:

III. The Doctrine of Abuse of Process

[10] Judges have an inherent and residual discretion to prevent an abuse of the court’s process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35 (C.U.P.E.). The doctrine of abuse of process engages “the inherent power of the Court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute”: C.U.P.E. at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 194 D.L.R. (4th) 648, 51 O.R. (3d) 481 (C.A.) at para. 55. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel: C.U.P.E. at para. 37. Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice: C.U.P.E. at para. 37.

[11] The policy grounds supporting abuse of process by relitigation are:

A. That there be an end to litigation;

B. That no one should be twice vexed by the same cause;

C. To preserve the courts’ and the litigants’ resources;

D. To uphold the integrity of the legal system in order to avoid inconsistent results; and

E. To protect the principle of finality so crucial to the proper administration of justice (C.U.P.E. at para. 38).

[12] The focus of the doctrine of abuse of process is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice: C.U.P.E. at para. 43.

[13] There are various circumstances in which relitigation does not result in an abuse of process. Per C.U.P.E.:

52 … [R]elitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context ...

53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision. [citations omitted]

[14] As the Supreme Court of Canada held in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 18 (Danyluk), albeit in discussion of the doctrine of issue estoppel:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. … A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

[15] The obligation of litigants to put their best foot forward concerns not only questions or facts distinctly put in issue and directly determined, but extends to the material facts and the conclusions of law or of mixed fact and law that were necessarily (even if not explicitly) determined in the earlier proceedings: Danyluk at para. 24.

[16] The following additional guidance comes from the Supreme Court of Canada’s decision in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 120:

In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Brown and Evans, [Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998], at p. 9-68). According to L’Heureux‑Dubé J. in Power, [1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601], at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L’Heureux‑Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive.

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[42] ... In this case, I conclude that the Federal Court erred in law in that it applied the incorrect legal test in determining that there was no abuse of process.

[43] Although the power to stay proceedings for abuse of process is a discretionary one, it must be exercised in accordance with settled jurisprudence, and failure to do so amounts to an error of law. ....

. Binance Holdings Limited v. Ontario Securities Commission

In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").

In these quotes the court notes the broad range of the doctrine of abuse of process:

[36] In administrative proceedings, abuse of process is a question of procedural fairness: Law Society of Saskatchewan v. Abrametz, at para. 38. The standard of review is correctness: Law Society of Saskatchewan v. Abrametz, at para. 30. Similarly, the alleged error regarding promissory estoppel attracts the standard of review of correctness.

[37] The doctrine of abuse of process “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel”: Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 35, quoting Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 40.

[38] It is not disputed that the threshold to show an abuse of process is high, especially where the remedy would amount to a stay of the proceedings, in this case the investigation itself: see, e.g., Society of Saskatchewan v. Abrametz, at paras. 76, 83.

. 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc.

In 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc. (Ont CA, 2022) the Court of Appeal summarizes briefly the doctrine of abuse of process:

[19] Abuse of process engages the inherent and residual discretion of the court to prevent the misuse of its procedure: Toronto (City), at para. 35. The doctrine of abuse of process is characterized by its flexibility as it is unencumbered by specific requirements: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 40. As a result, it may be relied on to prevent re-litigation in circumstances that violate judicial economy, consistency, finality, and the integrity of the administration of justice. The primary focus of the doctrine is the integrity of the courts’ adjudicative functions, but it arises in an array of contexts: Toronto (City), at paras. 36-37, 43.

. Law Society of Saskatchewan v. Abrametz

In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada reviewed the history of the court's abuse of process jurisdiction:

(2) The Doctrine of Abuse of Process

[33] The doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 39; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at p. 612; P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243, at p. 243. The doctrine was recognized in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 135-37, where the Court drew from Dubin J.A. in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289 (Ont. C.A.), at p. 329, where he stated that

there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. [Emphasis added; p. 135.]

[34] Abuse of process is a broad concept that applies in various contexts: C.U.P.E., at para. 36; Behn, at para. 39. In criminal proceedings, unfair or oppressive treatment of an accused can constitute an abuse of the court’s process and warrant judicial intervention: R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 25, citing Power, at pp. 612-15; Jewitt, at pp. 136-37; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 59. In civil matters, it can warrant granting a motion to strike pleadings or to preclude relitigation of an issue: see Behn; Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d 2002 SCC 63 (CanLII), 2022 SCC 63, [2002] 3 S.C.R. 307.

[35] It is also characterized by its flexibility. It is not encumbered by specific requirements, unlike the concepts of res judicata and issue estoppel: Behn, at para. 40; C.U.P.E., at paras. 37-38. In Behn, at para. 40, LeBel J. referred with approval to Goudge J.A., dissenting, in Canam Enterprises Inc. (C.A.), where Goudge J.A. explained that the doctrine of abuse of process

engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. [Emphasis added; para. 55.]

Such flexibility is important in the administrative law context, given the wide variety of circumstances in which delegated authority is exercised.

[36] The primary focus is the integrity of courts’ adjudicative functions, and less on the interests of parties: C.U.P.E., at para. 43; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007. The proper administration of justice and ensuring fairness are central to the doctrine: Behn, at para. 41; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at paras. 24-25 and 31. It aims to prevent unfairness by precluding “abuse of the decision-making process”: Figliola, at para. 34, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 20.

. Ntakos Estate v. Ntakos

In Ntakos Estate v. Ntakos (Ont CA, 2022) the Court of Appeal considered the issue of abuse of process:

[44] The motion judge properly considered the relevant legal principles for deciding whether the claims were an abuse of process. Having regard to case law from this court and the Supreme Court of Canada, the motion judge stated that “[t]he law is clear that it is an abuse of process to relitigate a determination by a court in the hope of a different outcome”: see The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227. The motion judge explained that this principle applies to matters that “could have been determined” in prior proceedings: Catalyst, at para. 67, citing Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal to S.C.C. refused, 38899 (March 19, 2020); Behn, at para. 40. He further explained that this principle applies to proceedings decided on consent: D’Addario v. EnGlobe Corp., 2012 ONSC 1918, 1 B.L.R. (5th) 23, at paras. 268-69, aff’d 2014 ONCA 376, 28 B.L.R. (5th) 191. In addition, the motion judge correctly acknowledged that there are limited circumstances where a party may be entitled to relitigate an issue, such as “when the first proceeding is tainted by fraud or dishonesty”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52.

. Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario

In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court summarized the nature of abuse of process:

[6] The Applicant challenges the ICRC’s conduct as an abuse of process. An abuse of process will be established where proceedings are oppressive and vexatious and violate the fundamental principles of justice underlying the community’s sense of fair play and decency (Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at paras 35-36).

....

[43] In order to constitute an abuse of process, proceedings must be “unfair to the point that they are contrary to the interests of justice”. An abuse of process is established only where: “(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency.” (Toronto (City v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 35 (CanLII), 2003 SCC, at para. 35).

[44] The Applicant asks that the ICRC’s decision be quashed as an abuse of process. A stay of proceedings is the remedy for an abuse of process and is reserved for only the “clearest of cases” (R. v. Regan, 2002 SCC 12 at para. 53; R. v. Piccirilli (sub nom. R. v. Babos), 2014 SCC 16 at para. 31). Courts must consider whether the Applicant has been prejudiced and, if so, whether there is an alternate remedy capable of addressing the prejudice. Even where prejudice is established, the onus is on the Applicant to establish that the interest in denouncing the conduct outweighs the public interest in proceeding (R. v. Regan, at para. 57; Babos, at para. 32).