February 27, 2007

The Supreme Court of Canada had this to say about abuse of process:

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.[1]

 As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonourable, or status of the parties.

In the context of estate litigation, where emotions are often raw and grievances long held, a party to an action cannot be blinded by perceived motives when considering whether to strike a claim as an abuse of process.

The best way to approach abuse of process is to consider claims that the court has held to be an abuse of process.  A good example is where a party re-litigates a claim, however disguised, solely to achieve a more favourable judicial result or harass the other side.  Such a case is both manifestly unfair to the defendant as well as bringing the administration of justice into disrepute. Even if the parties are not exactly the same as in the earlier claim, e.g. if a party commenced an action against an estate trustee and then commenced essentially the same action against a beneficiary, the doctrine of abuse of process can be used to prevent re-litigation.

The real attraction of the doctrine of abuse of process is its flexibility and the latitude it provides the court in its application.  However, as with all procedural or early motions, it is often a difficult case to meet.  The facts must be clear in order to successfully argue that a claim should be struck as an abuse of process.

Historically, a party arguing abuse of process would bring a motion either under Rule 21 (a motion to a proceeding as an abuse of process) or 25.11 (striking out or expunging all or part of a pleading or other documents that is an abuse of process). However, preparing such motions means incurring costs – which are sometimes significant. An alternative can be found in the new Rule 2.1. This Rule allows the court, on its own initiative, to stay or dismiss a proceeding (i.e. an action or application) or motion if same appears on its face to be an abuse of the process of the court. Any party to a proceeding or motion may file a written request with the registrar that such an order be made. This written request should be a one or two line request for the making of a referral and should not include any evidence or argument.[2]

If the court is considering making such an order, the plaintiff (or applicant or moving party as the case may be) will have 15 days to provide written submissions. The court may dismiss or stay the proceeding or motion if it does not receive such submissions or after receiving these submissions. If the court needs more information, it can seek written submissions from the defendant (or respondent or responding party) within 10 days.

As Justice Myers held in Gao v. Ontario WSIB, Rule 2.1 is aimed “at clearer cases of abuse” than motions which should be brought pursuant to the Rules. It should be invoked where the normal court process would either be “misused by the target” or where the substance is “so clearly frivolous as to make proceeding on regular notice an utter a waste for time, money, and resources for all involved.”[3] Note that at this time there has not been a judicial pronouncement on whether a defendant and/or responding party is liable for costs if their request under Rule 2.1 is rejected.

Rule 2.1 should not be used as an opening tactical gambit or where the frivolous or vexatious nature of the proceeding or motion is a close call. However, it can – and should – be used as a cost-effective way to fight claims or motions which are clearly an abuse of process.



[1] See Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 and Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.)

[2] Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801

[3] Gao v. Ontario WSIB, 2014 ONSC 6497