Abuse of process

The appellants appealed an order striking their claims against a bank and its legal counsel regarding the enforcement of two mortgages on properties in default.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no basis for a claim against the bank's counsel, one appellant lacked standing, and the other appellant's claims should have been raised in the underlying enforcement proceedings.

The respondent brought a Small Claims Court action alleging he should not have been charged with various parking offences under the Highway Traffic Act, though he did not seek to set aside the convictions.

The Small Claims Court dismissed the action as an abuse of process, but the Divisional Court set aside that order.

On appeal, the Court of Appeal restored the Small Claims Court decision, holding that challenging the factual basis underlying convictions without directly seeking to set them aside constitutes an abuse of process and impermissible relitigation.

The Crown appealed the accused's acquittal on drug trafficking charges.

The trial judge had found that an undercover police officer entrapped the accused by asking 'Can you hook me up?' without reasonable suspicion, and excluded the evidence under s. 24(2) of the Charter.

The Court of Appeal allowed the appeal, holding that the officer's question was merely an investigative step and did not provide an opportunity to commit an offence.

The Court set aside the finding of entrapment, entered guilty verdicts, and remitted the matter for sentencing.

The Court also noted that entrapment should only be considered after a finding of guilt, and that a stay of proceedings, rather than exclusion of evidence, is the proper remedy.

The respondent was charged with trafficking cocaine.

On the trial date, the assigned Crown counsel realized she had previously represented the respondent and eventually disclosed a potential conflict of interest.

The trial judge stayed the proceedings as an abuse of process and awarded costs against the Crown, finding the Crown's conduct placed the respondent in an untenable position.

The Court of Appeal allowed the Crown's appeal, holding that the trial judge made a palpable and overriding error in concluding the Crown could not prove its case and failed to apply the proper legal principles for a stay of proceedings.

The stay and costs orders were set aside.

The appellant appealed an order dismissing her request for leave to institute a new proceeding against the respondent bank.

The appellant had previously defaulted on her mortgage, resulting in a default judgment and the sale of her home.

After multiple unsuccessful proceedings to set aside the default judgment, she was prohibited from instituting further proceedings without leave.

The Court of Appeal upheld the motion judge's decision to deny leave, agreeing that the appellant sought to relitigate previously decided matters and had failed to pay costs from prior proceedings.

Following the dissolution of the law firm representing the plaintiff in a proposed class proceeding, the representative plaintiff chose to retain a new firm formed by some of the former partners.

The appellant, a firm formed by the former supervising partner, brought a motion to strike the notice of change of solicitors and replace the representative plaintiff.

The Court of Appeal dismissed the appeal, holding that a representative plaintiff has the right to choose counsel, subject to court review based on competence, improper considerations, and prejudice to the class.

The court also stayed a competing class action commenced by the appellant as an abuse of process.

The accused was a passenger in a vehicle stopped by police and was found carrying a loaded prohibited handgun.

He was acquitted at trial of possessing a loaded prohibited firearm on the basis that he lacked the requisite mens rea, as he did not know the barrel was shorter than 105 millimetres.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the mens rea under s. 95(1) of the Criminal Code only requires the offender to know they are in possession of a loaded firearm, regardless of whether it is prohibited or restricted.

The Court also declined to stay the proceedings despite a nearly three-year delay by the Crown in perfecting the appeal, finding no actual prejudice.

The appellant appealed a summary judgment dismissing his action for abuse of process against the bank.

The appellant alleged the bank brought bankruptcy proceedings for the improper purpose of purchasing his share in a company.

The Court of Appeal dismissed the appeal, noting the appellant had the opportunity to purchase the assets, did not object to the court-approved sale, and a previous judge had already struck similar allegations and found no improper purpose.

The respondent's first action was dismissed for delay.

The motion judge permitted the respondent to proceed with a second identical action, subject to paying the costs of the first action, relying on Rule 24.05(2).

The Court of Appeal allowed the appeal, holding that the rule does not provide a right to commence a second identical action and that doing so constitutes an abuse of process.

The appellant, suffering from a severe delusional disorder, was convicted of aggravated assault and assault with a weapon after representing himself at trial and refusing to raise a mental disorder defence.

On appeal, the Crown sought to introduce fresh psychiatric evidence establishing that the appellant was not criminally responsible on account of mental disorder (NCRMD).

The Court of Appeal admitted the fresh evidence, finding it met the Palmer test and was necessary to prevent a wrongful conviction.

The Court rejected the argument that entering an NCRMD verdict after ten years of proceedings constituted an abuse of process, emphasizing the public interest in protecting society and ensuring mentally ill individuals are not improperly labelled as criminals.

The appeal was allowed, convictions set aside, and a verdict of NCRMD substituted.

The appellant appealed his conviction and sentence for fraud over $5,000.

He argued the criminal proceedings were an abuse of process because they were allegedly used solely to collect a civil debt owed to the complainants.

The Court of Appeal dismissed the conviction appeal, finding no improper purpose behind the prosecution despite some ill-advised emails from Crown counsel.

The sentence appeal was also dismissed, as the 18-month imprisonment and $22,500 restitution order were within the appropriate range and revealed no error in principle.

The appellant appealed a decision denying his application to amend his statement of claim to plead illegal consideration.

The Master and the appeal judge had refused the amendment, finding it an abuse of process because a judge on a prior interlocutory injunction motion ruled the allegation did not raise a triable issue.

The Court of Appeal allowed the appeal, holding that a refusal to grant an interlocutory injunction is a preliminary decision and does not finally determine the cause of action.

The appellant was granted leave to amend his statement of claim.

The appellant brought an action seeking rescission of a property sale and damages.

He requested a bilingual proceeding under s. 126 of the Courts of Justice Act.

On the date of the respondents' summary judgment motion, no bilingual judge was available.

The motion judge refused an adjournment, finding the appellant was using language rights to delay, and dismissed the action.

The Court of Appeal allowed the appeal, holding that the right to a bilingual proceeding is quasi-constitutional and not subject to judicial discretion to deny based on perceived abuse of process.

The matter was remitted to a bilingual judge.

The appellant appealed an order striking his statement of claim for solicitor's negligence and dismissing the action as an abuse of process.

The appellant alleged his former lawyer was negligent in conducting a prior trial regarding a school fire.

The Court of Appeal dismissed the appeal, finding that even if the alleged failures had not occurred, the outcome of the underlying action would have been the same due to other fatal findings, such as the claim being statute-barred and lacking damages.

The court also noted that the alleged omissions were, at most, errors in judgment and did not breach the standard of care.

The appellant, arrested for extradition to the United States on charges relating to a fraudulent loan scheme, appealed multiple rulings including habeas corpus dismissals, a committal order, and the dismissal of a release application under s. 69 of the Extradition Act.

He also sought judicial review of the Minister's surrender order.

The Court of Appeal dismissed the appeals and the application for judicial review, finding that the Minister's surrender order was valid, the superseding indictment did not invalidate the proceedings, and there was no abuse of process or procedural unfairness.

The appellant was convicted of aggravated assault, using a firearm, and possession of a prohibited weapon following his fourth trial.

He appealed, arguing the trial judge erred in admitting an overheard utterance to his lawyer ('I had a gun, but I didn't point it') without context, and in instructing the jury that his failure to ask why he was being arrested could be used to assess his guilt.

The Court of Appeal agreed, finding the utterance's meaning was too speculative and its prejudicial effect outweighed its probative value.

The court also found the trial judge impermissibly undermined the appellant's right to silence.

Given this would be the appellant's fifth trial, the court entered a stay of proceedings.

Inco Limited was charged with discharging untreated mine effluent into a creek and failing to report the discharge under the Ontario Water Resources Act.

The Crown appealed the summary conviction appeal judge's decision ordering a new trial on the basis that the trial court applied the incorrect test for water impairment.

Inco cross-appealed, arguing the charges should be stayed as an abuse of process because the environmental officer lacked statutory authority to conduct a warrantless inspection and violated the Charter rights of its employees.

The Court of Appeal dismissed the Crown's appeal, confirming that the capacity to impair water quality must be assessed based on the nature and circumstances of the discharge.

The Court allowed Inco's cross-appeal, holding that while the corporation lacked standing to assert its employees' Charter rights, a new trial was required to determine whether the officer had reasonable and probable grounds to believe an offence was committed before conducting the inspection, which would dictate whether a warrant was required.

The young person appellant and an adult co-accused were charged separately with murder.

The appellant was compelled to testify at the adult's preliminary inquiry, during which the Crown extensively questioned him about his own involvement, leading to self-incriminating statements.

This compelled testimony was then used to elicit incriminating evidence from another witness, who later testified at the appellant's trial.

The Court of Appeal held that the Crown's predominant purpose at the preliminary inquiry was to build a case against the appellant, violating his section 7 Charter rights against self-incrimination.

The derivative evidence should have been excluded.

The appeal was allowed and a new trial ordered.

The moving parties brought a motion to review and vary an order dismissing their appeal for delay.

The underlying actions had been dismissed as an abuse of process and the moving parties were declared vexatious litigants.

The Court of Appeal dismissed the motion, finding that the moving parties failed to provide a persuasive explanation for their delay in perfecting the appeal and failed to demonstrate any merit to the appeal.

The appellant appealed the dismissal of her action for abuse of process, which was based on the allegation that the respondents had brought prior Quebec proceedings challenging a will for an improper purpose.

The trial judge found that the Quebec action was not commenced for an improper purpose, and the Court of Appeal held this factual finding was entitled to deference.

The appellant also argued that the trial judge's comments at the outset of the trial demonstrated a reasonable apprehension of bias.

The Court of Appeal concluded that while some comments were troubling, they did not display a reasonable apprehension of bias when considered in totality.

The appeal was dismissed.