Abuse of process

The appellant appealed his convictions for sexual touching and sexual assault against his son.

At trial, the Crown was permitted to lead similar fact evidence of an incident that had been the subject of a prior trial ending in a 'judicial stay' when the complainant refused to testify.

The Court of Appeal held that the prior judicial stay was the functional equivalent of an acquittal, and therefore the doctrines of issue estoppel and abuse of process precluded the Crown from leading the evidence.

The appeal was allowed and a new trial ordered.

The appellant appealed a motion judge's decision refusing to permit the addition of lawyer defendants to a statement of claim.

The motion judge had determined the proposed claims were not tenable at law.

The Court of Appeal allowed the appeal, finding that the proposed fresh as amended statement of claim, which alleged the lawyers provided incorrect advice regarding a share repurchase and litigation exposure, disclosed a tenable cause of action.

The Court also noted the motion judge improperly engaged in an assessment of the merits rather than solely assessing whether the claims were tenable at law.

The appellants appealed a motion judge's refusal to dismiss the respondents' civil action based on statutory immunity under s. 38.1 of the Independent Health Facilities Act and abuse of process.

The respondents cross-appealed the striking of allegations relating to investigations under the Health Professions Procedural Code.

The Court of Appeal dismissed both the appeals and the cross-appeal, holding that while s. 38.1 provides immunity for losses resulting from specific regulatory orders, factual findings at trial are required to determine if any claimed losses fall outside this protection.

The abuse of process arguments were also left open for trial.

The appellant, a Canadian citizen, was charged with fraud in Ontario and reached a plea agreement for a conditional sentence.

Due to a clerical error, the plea was delayed.

Meanwhile, the United States sought his extradition for the same conduct, where he faced a much longer sentence.

The provincial Crown stayed the domestic charges.

The appellant appealed his committal for extradition and sought judicial review of the Minister's surrender order.

The Court of Appeal dismissed the committal appeal, finding no abuse of process.

However, the Court allowed the judicial review, holding that the Minister failed to properly consider the unusual facts, including the thwarted plea agreement and sentence disparity, when assessing the appellant's section 6(1) Charter rights.

The matter was remitted to the Minister for reconsideration.

The respondent's bail hearing was delayed by four days due to an illegal strike by correctional officers.

The trial judge granted a stay of proceedings, finding the delay and the strike shocked the conscience of the community.

The Crown appealed.

The Court of Appeal allowed the appeal and set aside the stay, holding that the illegal strike was not state misconduct, the delay was brief, and there was no evidence of actual prejudice to the respondent.

The appellant, a police informer, had their identity and confidential information inadvertently recorded during a police interview.

The police and Crown failed to verify the appellant's informer status or redact the transcript, resulting in the full interview being disclosed to defence counsel in another case.

The appellant suffered retribution in custody.

The trial judge dismissed the appellant's application for a stay of proceedings.

On appeal, the Court of Appeal found the conduct of the police and Crown amounted to gross negligence and breached the absolute class privilege of informers.

The appeal was allowed and a stay of proceedings was entered.

The appellant, a store clerk, sold cigarettes to a 17-year-old test shopper without asking for identification and was convicted under the Smoke Free Ontario Act.

He appealed, arguing that the random compliance check constituted entrapment because the authorities lacked reasonable suspicion that he or the store were engaged in illegal activity.

The Court of Appeal dismissed the appeal, holding that the criminal law doctrine of entrapment, specifically the requirement for reasonable suspicion, does not apply to bona fide random test shopping used to monitor compliance with regulatory statutes.

The appellant, a person of Roma ethnicity who was granted 'protected person' status in Canada, appealed his committal for extradition to Hungary and sought judicial review of the Minister of Justice's decision to surrender him.

He argued that the extradition judge erred in refusing a stay for abuse of process, that the judge's comments created a reasonable apprehension of bias, and that the Minister of Justice erred in consulting the Minister of Citizenship and Immigration regarding his risk of persecution.

The Court of Appeal dismissed the appeal and the application for judicial review, finding no reasonable apprehension of bias and holding that the Minister of Justice properly assessed the risk of surrender under the Extradition Act framework, which differs from the immigration risk assessment.

The appellant appealed an order striking its claim against the respondent employees on a Rule 21 motion.

The motion judge had concluded that a release executed by the corporate parties included the employees and that the action was an abuse of process.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the release covered the employees, and that the motion judge impermissibly weighed evidence.

The Court also held that bringing a subsequent action against the employees was not an abuse of process, as the specific issues and duties of care were not decided in the earlier action against the principal.

The appellant appealed his convictions for criminal harassment, attempting to obstruct justice, and breach of recognizance.

On the scheduled trial date, the trial judge ruled that the appellant's counsel was no longer on the record due to a prior endorsement, forcing the appellant to proceed unrepresented.

The Court of Appeal found that the trial judge erred in interpreting the prior endorsement and that counsel remained on the record.

The Court held that the appellant's right to be represented by counsel was violated, requiring a new trial without the need to demonstrate actual prejudice.

The appellants, directors of a preservation society, appealed a non-party costs award of $105,852.14 made against them personally following an unsuccessful application regarding the use of church lands and trust funds.

The Court of Appeal found that while the application judge did not err in concluding the litigation was not public interest litigation, he erred in awarding costs personally against the directors.

The Court held that the directors did not stand to gain personally, were not acting to vindicate a private interest, and did not receive adequate warning that costs would be sought against them personally.

The appeal was allowed and the personal costs order was set aside.

The appellant appealed his committal for extradition to the United States on drug trafficking charges and sought judicial review of the Minister's surrender order.

He argued that the Canadian authorities' withdrawal of domestic charges without notice constituted an abuse of process, depriving him of the opportunity to build a record to argue against extradition.

The Court of Appeal dismissed the appeal, finding no error in the extradition judge's refusal to grant a stay, as the domestic charges were not a ruse and the appellant had other avenues to raise his arguments.

The Court also upheld the Minister's surrender order, finding it was not unjust or oppressive despite the potentially severe penalty in the United States.

The respondent in a family law appeal brought a motion to stay the appeal, arguing that the appellant had failed to pay the full amount of support ordered by the trial judge.

The appellant argued that a single judge lacked jurisdiction to hear the motion and that he was unable to afford the full payments.

The single judge of the Court of Appeal held that he lacked jurisdiction, as a stay would effectively dispose of the appeal and thus required a panel of three judges under Rule 61.16(2.2) and s. 140(5) of the Courts of Justice Act.

In any event, the judge would have dismissed the motion on the merits, as the appellant had provided an uncontradicted explanation for his inability to pay the full amount and was not simply refusing to comply.

The motion was dismissed with no order as to costs.

The Crown appealed an order staying a charge of rape against the respondent due to late disclosure of threatening phone messages left by a witness for the complainant.

The trial judge granted the stay before trial, finding the delay caused prejudice because the witness had an apparent memory lapse.

The Court of Appeal allowed the appeal and set aside the stay, holding that the trial judge erred by not waiting until the conclusion of the trial to assess actual prejudice, as the evidence of prejudice on the pre-trial record was speculative.

The Court also found that the Crown's overzealous interpretation of a no-contact order did not amount to an abuse of process warranting a stay.

The appellant condominium corporation brought an application to remove the respondent's cats from her unit, after a previous identical application by the unit owner was dismissed and not appealed.

The application judge dismissed the second application as an abuse of process.

The Court of Appeal upheld the dismissal, finding that the appellant was an active participant in the first application and that permitting the second application would be manifestly unfair to the respondent by forcing her to relitigate the same issue.

The appellant appealed an extradition committal order and sought judicial review of the Minister of Justice's surrender order to the United States for charges including fraud and theft.

The appellant argued the extradition judge erred by not staying the proceedings due to the requesting state's non-disclosure regarding a witness interview, and by applying the wrong test for committal under the Extradition Act.

The Court of Appeal held that the extradition judge properly excised the tainted witness evidence rather than staying the proceedings.

Furthermore, applying the Supreme Court's decision in Ferras, the Court confirmed that an extradition judge cannot refuse committal merely because the case is weak, provided there is some available and reliable evidence on each element of the offence.

The appeal and application for judicial review were dismissed.

A police constable was acquitted of criminal charges and subsequently faced discipline proceedings under the Police Services Act for the same conduct.

The hearing officer, appointed by the Chief of Police, stayed the discipline proceedings as an abuse of process.

The Chief, who has no statutory right of appeal, sought judicial review of the decision.

The Divisional Court granted the application and quashed the stay.

On appeal, the Court of Appeal held that the Chief does not have standing to seek judicial review of a decision made by his own delegate, as the Chief and the hearing officer are synonymous under the Act.

The appeal was allowed and the hearing officer's decision was reinstated.

The appellant appealed an order dismissing his claim on the grounds of res judicata and abuse of process.

The Court of Appeal allowed the appeal, finding that the motion judge erred in dismissing the claim without having the statement of claim before him.

The motion judge had improperly relied on another judge's reasons for setting aside a default judgment as a conclusive finding.

The order was set aside and the respondents' motion to dismiss was dismissed.

The respondents moved to stay the appellant's action and for an order for security for costs on the appeal, citing the appellant's failure to pay over $27,000 in costs awards from previous unsuccessful proceedings.

The appellant, who was suing for historical sexual and physical abuse, was impecunious and relied on a disability pension.

The Court of Appeal dismissed the motions, finding that despite the unpaid costs and the respondents' valid concerns, the impecunious appellant should not be deprived of a final opportunity to have his case considered on the merits, as the appeal was not plainly devoid of merit.

The appellant, Clarica Trust Company, appealed a motion judge's decision that a crossclaim by the respondent, Reemark Sterling I Limited, was not barred by cause of action estoppel or abuse of process.

The crossclaims arose from a prior action involving a bank, where it was determined that Mutual Trust (Clarica's predecessor) breached a financing commitment.

The Court of Appeal dismissed the appeal, finding that Reemark and the bank had independent causes of action, and it was not an abuse of process for Reemark to advance its claim separately.

Furthermore, the court held that it would be an abuse of process to permit Clarica to re-litigate the issue of liability which had already been determined against it in the prior action.