Abuse of process

The appellant appealed the dismissal of its Superior Court action, which the motion judge had found to be an abuse of process for raising the same issues as an earlier Small Claims Court action.

The Court of Appeal allowed the appeal, finding that despite the appellant's contradictory affidavits, the legal issues in the two actions were not identical or substantially the same.

However, due to the appellant's inaccurate affidavit, costs of the appeal and the motion were awarded to the respondent.

The respondent municipality brought a motion to quash the appellant's second appeal as an abuse of process.

The appellant brought a responding motion to set aside the Registrar's order dismissing its first appeal for delay.

The Court of Appeal granted the motion to quash the second appeal, finding it was an abuse of process because the first appeal on the merits had already been dismissed for delay.

However, the Court exercised its discretion to set aside the Registrar's order dismissing the first appeal, accepting the delay in settling the formal judgment as an adequate explanation, subject to strict conditions regarding representation, filing an amended notice of appeal, and ordering transcripts.

The Crown appealed an order upholding a summary conviction court's decision to proceed with an application for costs after charges against the respondent were withdrawn.

Relying on the companion appeal of R. v. Fach, the Court of Appeal allowed the appeal, quashed the lower court's decision, and prohibited the summary conviction court from proceeding with the costs application.

The Court also rejected the respondent's allegations of abuse of process by the Crown in withdrawing the charges.

The appellant appealed an order dismissing her action on the grounds that her re-amended statement of claim was verbose, pleaded evidence, attempted to re-litigate matters finally disposed of, and was an abuse of process.

The appellant also brought a preliminary motion to strike the respondents' affidavits because they were sworn by associates in the same law firms as counsel.

The Court of Appeal dismissed the preliminary motion, finding the affidavits dealt with facts already on the record.

The Court also dismissed the appeal, agreeing with the motion judge that the underlying basis for the appellant's claims—the trustee's right to proceed with the sale of the matrimonial home after the husband's discharge from bankruptcy—had been conclusively determined in earlier proceedings.

The respondent was convicted by a jury of fraudulently obtaining GST refunds.

Prior to sentencing, the trial judge declared a mistrial, finding that the Crown's failure to preserve the respondent's employment records amounted to an abuse of process and a breach of section 7 of the Charter.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the trial judge lacked jurisdiction to declare a mistrial after the jury's verdict had been recorded.

The matter was remitted to the trial judge for sentencing.

The appellants were convicted of second degree murder for stabbing a plainclothes police officer to steal his vehicle.

They appealed their convictions, arguing that the Crown's failure to disclose that two other surveillance officers were drinking outside the jurisdiction during the incident violated their right to full disclosure and constituted an abuse of process.

The Court of Appeal dismissed the conviction appeals, finding the undisclosed information would not have affected the trial's fairness or the credibility of the responding officer.

The Court also dismissed the sentence appeals, upholding parole ineligibility periods of 16 and 18 years due to the need to denounce the murder of an on-duty police officer and the appellants' violent criminal records.

The appellant commenced a third action asserting the same claim that was previously raised in a 1984 arbitration and a 1989 court action, both of which ended when the appellant failed to pay costs.

The motion judge dismissed the present action on the grounds of the expiration of the limitation period and res judicata.

On appeal, the Court of Appeal dismissed the appeal, finding that allowing the litigation to proceed would constitute an abuse of process and violate principles of judicial economy, consistency, finality, and the integrity of the administration of justice.

The appellant appealed his third conviction for sexual assault, arguing the trial judge erred in assessing defence evidence.

The Court of Appeal found the trial judge improperly discounted defence witnesses' testimony because they had to reconstruct events years later, holding the defence to an impossible standard.

Given that this would be the appellant's fourth trial for an incident that occurred 13 years prior, the Court concluded that proceeding further would violate the community's sense of fair play.

The appeal was allowed, the conviction set aside, and a stay of proceedings entered.

The appellant appealed an order dismissing his action as an abuse of process.

The motions judge had concluded that commencing a new action against individual defendants after the court refused to amend the claim to name them in a prior action constituted an abuse of process.

The Court of Appeal found this was an error in principle, as the prior decision was purely procedural and did not deal with the merits of the claim.

The appeal was allowed and the action was permitted to proceed.

The appellant appealed an order dismissing her claim.

The Court of Appeal dismissed the appeal, finding that permitting the claim to proceed would be an abuse of process because the appellant had already failed to obtain a remedy through her employer's complaint and grievance procedures.

The motion judge correctly applied Rule 25.

The appellants, two trusts and their trustee, appealed a bankruptcy judge's decision dismissing their appeal from a Registrar's decision.

The Registrar had confirmed the trustee in bankruptcy's disallowance of the trusts' proofs of claims.

The Court of Appeal dismissed the appeal, agreeing with the bankruptcy judge that there was no evidence the cheques deposited into a numbered company controlled by the bankrupt were intended as loans.

Costs were awarded against the trusts and their trustee personally on a joint and several basis.

The appellant appealed an order of the lower court judge, who had dismissed their initial appeal for abuse of process due to undue delay in prosecution.

The Court of Appeal found no error in the lower court judge's conclusion and dismissed the appeal.

The respondent was awarded costs of $5,000.

A motion for leave to cross-appeal to add a party to the lower court's order was also dismissed.

The plaintiff brought a civil action against the Crown and police for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of harm after his sexual assault conviction was overturned based on new DNA evidence.

The Crown successfully moved to strike the claims for abuse of process, conspiracy, and intentional infliction of harm on the basis that malicious prosecution is the only tort available against a prosecutor.

The Court of Appeal allowed the appeal, holding that the jurisprudence is not fully settled on whether the four elements of malicious prosecution must always be proven in every civil action against a prosecutor, and therefore it was inappropriate to strike the claims at this early stage.

The Crown appealed an order requiring the Attorney General to pay $25,000 in costs to the respondents, who had successfully argued on appeal that the prosecution against them was abusive due to a loss of Crown independence.

The respondents cross-appealed, seeking a stay of proceedings.

The respondents alleged that the outside counsel retained to prosecute them under the Liquor Licence Act was compromised because his fees were paid by the Liquor Control Board and he was supervised by a Board employee.

The Court of Appeal allowed the Crown's appeal and dismissed the cross-appeal, finding no evidentiary foundation that the retained counsel failed to comply with his obligations as Crown counsel.

The appellant client was awarded fixed costs in matrimonial proceedings.

Her solicitor claimed the fixed costs as its solicitor and client account, and the client applied to have the account assessed.

The motion judge ruled that the doctrine of issue estoppel applied.

On appeal, the Court of Appeal held that neither issue estoppel nor abuse of process applied, as the solicitor and client are allied in interest when costs are fixed but opposed in interest on an assessment.

The appeal was allowed, permitting the client to have the accounts assessed.

The appellant, a Canadian citizen, was convicted of offences in Wisconsin and transferred to Texas, where he escaped custody.

He was arrested in Canada on a provisional warrant.

The Minister of Justice issued an authority to proceed for the Wisconsin charges, to which the appellant consented.

Later, a second authority to proceed was issued for the Texas escape charge, and a straight arrest warrant was executed.

The appellant appealed his committal on the Texas charge, arguing he should have been discharged under s. 14 of the Extradition Act due to missed time limits, and that the second proceeding was an abuse of process.

The Court of Appeal dismissed the appeal, holding that s. 14 applies only to provisional arrests, not straight arrests under s. 16, and that the second proceeding was not an abuse of process as no assurances were given that the Texas charge would be dropped.

The appellant was injured in a motor vehicle accident.

In a prior arbitration for accident benefits, the arbitrator found the appellant was uninsured at the time of the accident.

The appellant subsequently brought an action against the tortfeasor for negligence and against his insurer for breach of contract and negligence.

The motions judge dismissed both actions on the basis of abuse of process and issue estoppel.

The Court of Appeal allowed the appeal, finding that the tort action was separate from the contractual dispute, and the negligence claim against the insurer raised different issues than those decided in the arbitration.

The Crown appealed the respondent's acquittal on a charge of trafficking in cocaine.

The respondent had been targeted in a 'reverse sting' operation where undercover RCMP officers offered to sell him 18 kilograms of cocaine.

The trial judge found that the police conduct was illegal because it contravened internal RCMP policy requiring approval from national headquarters, and concluded this amounted to an abuse of process, excluding all evidence.

The Court of Appeal allowed the Crown's appeal, holding that the officers' offer to sell was exempt from the CDSA trafficking prohibition under s. 15 of the regulations, as they were acting in the course of their responsibilities despite breaching internal policy.

Finding no illegality, the Court of Appeal set aside the acquittal and ordered a new trial.

The appellant appealed his conviction and sentence, arguing that his s. 7 Charter rights were breached due to missing initial disclosure statements from complainants and the late disclosure of the police file after the jury's guilty verdict.

The Court of Appeal upheld the trial judge's findings that the missing and late-disclosed materials were of marginal relevance and did not impact the right to a fair trial.

The appellant also argued that a delay in hearing his appeal, caused by issues obtaining transcripts, breached his Charter rights.

The Court dismissed this argument, finding no prejudice or abuse of process.

The appeal against conviction and sentence was dismissed.

The appellants appealed an order of the motion judge.

The respondent brought a motion to quash the appeal.

The Court of Appeal granted the motion to quash, finding that the same constitutional issue had already been decided in respect of a closely connected defendant in the same proceeding.

The court also noted that the trial was imminent, several plaintiffs were critically ill, and the defendants had engaged in a proliferation of proceedings resulting in unacceptable delay.