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Abuse of Process - Remedies. Elizabeth Casey Cooke Family Trust v. Dioguardi
In Elizabeth Casey Cooke Family Trust v. Dioguardi (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a granted summary judgment motion in which a Will solicitor-related "Negligence Action was dismissed after the motion judge concluded that it was a collateral attack on the Certificate [SS: 'Certificate of Appointment of Estate Trustee With a Will'] and therefore an abuse of process."
Here the court considers a judge's 'abuse of process' remedial discretion:C. There is No Basis to Interfere with the Motion Judge’s Discretionary Decision to Dismiss the Negligence Action
[30] As an alternative argument, the appellants invite us to overturn the motion judge’s decision to dismiss the proceedings on the basis that judges are not compelled to remedy every case of an abuse of process. They submit that the dismissal in this case is unfair.
[31] I accept that judges have discretion to determine an appropriate remedy after finding an abuse of process: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 32; Abarca v. Vargas, 2015 ONCA 4, 123 O.R. (3d) 561, at paras. 28-30. The equitable doctrines at issue were developed to advance the interests of justice and need not be applied where doing so would create an injustice: see generally C.U.P.E., at para. 53; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 80; and Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at para. 16, leave to appeal refused, [2014] S.C.C.A. No. 96.
[32] The motion judge correctly articulated the concerns that were at play including judicial economy, consistency, finality, and the integrity of the administration of justice: see C.U.P.E., at para. 37. He concluded that fairness in this case favoured dismissing the underlying Negligence Action. He reasoned that if the Negligence Action was permitted to proceed and the appellants were successful, the result would be damages against Mr. Dioguardi that could have been mitigated by the appellants. Moreover, success in the Negligence Action could lead to some beneficiaries receiving greater benefits than they would have received if the Will had been drafted in alignment with James Sr.’s apparent intentions.
[33] I recognize the weight of the appellants’ submission that it is unfair to foreclose proceedings that would have examined whether Mr. Dioguardi should be held accountable for what may well have been a consequential drafting error that frustrated James Sr.’s testamentary intentions and deprived Elizabeth and Charlie of the gifts their grandfather intended that they receive. But the key point is that such proceedings could have been and should have been undertaken during the certificate process. There are pressing public policy considerations in estate law for applying the abuse of process doctrine to prevent belated attacks against the factual underpinnings of a certificate, which would call that certificate into question.
[34] The exercise of the motion judge’s discretionary decision to dismiss the Negligence Action is subject to deference on appeal: Métis Nation, at para. 32. I see no basis for interfering with the motion judge’s assessment, including his decision to dismiss the underlying action. . Mukwa v. Farm Credit of Canada
In Mukwa v. Farm Credit of Canada (Ont CA, 2022) the Court of Appeal considered the court's inherent jurisdiction to address abuses of it's process:[24] This court has implicit powers, that derive from the court’s authority to control its own process, to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice: Lochner, at para. 27; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; and R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58.
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