Abuse of process

The defendant lawyer brought a motion to strike a statement of claim alleging negligence and breach of contract arising from representation of the plaintiff in a criminal trial that resulted in convictions.

The plaintiffs alleged that but for trial counsel’s negligent conduct they would have obtained an acquittal.

The court held that allegations of ineffective assistance of counsel must be addressed through the criminal appeal process rather than through a collateral civil proceeding challenging the validity of the conviction.

Because the plaintiff’s appeal had already been dismissed and the ineffective assistance ground abandoned, allowing the civil claim would constitute an impermissible collateral attack and abuse of process.

The statement of claim was therefore struck without leave to amend.

The respondent brought a motion for summary judgment seeking dismissal of the applicant’s family law application challenging a mediation/arbitration award concerning termination and repayment of spousal support.

The applicant attempted to set aside the arbitration award under the Arbitration Act, 1991 and the Family Law Act, alleging jurisdictional error, breach of natural justice, evidentiary issues, and reasonable apprehension of bias.

The court held that the issues had already been determined in prior proceedings, including a denied motion for leave to appeal and an enforcement order of the arbitration award, and were therefore barred by res judicata and issue estoppel.

The court further found the application was out of time under statutory limitation provisions and disclosed no genuine issue requiring a trial.

Summary judgment was granted and the application dismissed as an abuse of process.

The defendants moved under Rule 21 of the Rules of Civil Procedure to dismiss a civil action alleging misfeasance in public office and related claims arising from a temporary cease trade order issued by the Ontario Securities Commission.

The plaintiff alleged the order had expired and that subsequent prosecutions and regulatory proceedings were therefore unlawful.

The court held that the validity of the cease trade order had already been determined in multiple prior regulatory and criminal proceedings, including a guilty plea and unsuccessful appeals.

Applying issue estoppel and the doctrine of abuse of process, the court concluded that the plaintiff was attempting to relitigate issues already conclusively determined.

The action was dismissed with prejudice.

The plaintiff commenced a civil action alleging trespass, conversion, negligent investigation, and Charter breaches after OSPCA agents removed his livestock and laid charges under the OSPCA Act.

The defendants brought a refusals motion seeking to compel answers to discovery questions regarding the plaintiff’s knowledge and beliefs about the legality of OSPCA powers and investigative practices.

The court held that questions seeking the plaintiff’s personal legal opinions on contested legal issues were irrelevant where counsel had already articulated the legal positions.

The defendants’ motion was dismissed.

On the plaintiff’s cross‑motion, the court granted leave to amend pleadings and ordered production of certain OSPCA training materials, policies, tariff information, and other information relevant to alleged warrantless entries and potential Charter remedies, while dismissing requests deemed irrelevant.

Following a successful motion dismissing a statement of claim as an abuse of process, the defendants sought substantial indemnity costs exceeding $177,000.

The plaintiffs argued that costs should be limited to $20,000 on a partial indemnity basis and contended that certain work related to alternate arguments on the motion should not be compensated.

The court held that substantial indemnity costs were appropriate due to unfounded allegations of serious misconduct against the defendants and the finding that the proceeding constituted an abuse of process.

While accepting the accuracy of the defendants’ bill of costs and the complexity and importance of the litigation, the court found the amount claimed excessive.

Costs were therefore fixed at a fair and reasonable level significantly below the amount requested.

In a civil action involving allegations arising from a dispute between business competitors, a defendant by counterclaim brought a motion to sanction the counterclaim plaintiff for breaching the deemed undertaking rule by broadcasting discovery material on a radio show.

In connection with that motion, the moving party served a summons to examine the opposing party’s lawyer as a witness.

The counterclaim plaintiff moved to quash the summons.

The court held that the lawyer did not possess relevant or material evidence regarding the breach and that any communications would be protected by solicitor-client privilege.

The court further emphasized that summoning opposing counsel requires exceptional circumstances demonstrating necessity and high materiality, which were absent.

The summons to examine the lawyer was therefore quashed.

The defendants brought a motion under Rule 21.01(3)(d) to dismiss or stay an action alleging breach of trust, bad faith, and unjust enrichment arising from the termination of a real estate Agreement of Purchase and Sale.

The plaintiffs had previously brought an application concerning the same agreement, in which the court determined after trial that the vendor lawfully terminated the agreement due to the purchasers’ default.

The court held that the present action was fundamentally premised on the allegation that the termination was wrongful, an issue already adjudicated in the earlier proceeding.

Applying the doctrines of res judicata and abuse of process, the court found the action sought to relitigate matters previously determined and was therefore frivolous and vexatious.

The action was dismissed in its entirety.

The plaintiffs brought a motion seeking contempt findings against the defendants for failing to comply with multiple court orders issued during a prolonged civil trial.

The court found beyond a reasonable doubt that the defendants had wilfully and repeatedly breached clear and unambiguous orders, including a prior order requiring compliance with all outstanding trial directions.

Evidence demonstrated a deliberate strategy to delay the proceedings and obstruct the plaintiffs’ ability to advance the action.

Rather than striking the defence immediately, the court ordered the defendants to pay $35,000 into court as security for costs associated with motions and wasted trial time.

The court emphasized the need to impose sanctions to protect the administration of justice and prevent ongoing delay tactics.

In estate litigation concerning the estate of a deceased testator, the objector brought motions seeking an order requiring the estate to pay transcript costs for an appeal, an extension of time to file a notice of appeal, and a stay of a master’s summary judgment decision validating the will and dismissing the objection.

The court held that the moving party failed to provide sufficient financial evidence to justify shifting transcript costs to the estate and dismissed that request.

While an extension of time to pursue the appeal was granted due to procedural confusion and personal difficulties, the court refused a stay, finding no serious question on appeal, no irreparable harm, and that the balance of convenience favoured allowing the estate administration to proceed.

On the respondents’ cross‑motion, a notice of objection filed by another beneficiary after the judgment validating the will was declared out of time and an abuse of process and was removed.

The accused brought a defence application seeking a stay of proceedings after being subjected to repeated Level 3 strip searches each time he left the courtroom while permitted to sit at counsel table during his jury trial.

The court found the searches were conducted pursuant to an improper practice and were not supported by individualized reasonable grounds.

The repeated searches constituted serious breaches of the accused’s s. 8 Charter right to be free from unreasonable search or seizure.

The court held that routine strip searches cannot be justified merely because an in‑custody accused is seated at counsel table and emphasized the extreme intrusiveness of such searches.

Although a stay of proceedings was initially ordered to prevent ongoing Charter violations, the order was suspended when court security agreed to alter the seating arrangement and cease the searches.

The defendants moved to dismiss a wrongful dismissal action for delay under Rules 24.01 and 48.14 of the Rules of Civil Procedure.

The court held that none of the criteria under Rule 24.01 were met because the plaintiff had served the claim in time, the defendants had defended the action, and the matter had been set down for trial.

The master also found that he lacked jurisdiction to dismiss the action as an abuse of process outside the rule-based authority relied upon by the defendants.

Even if jurisdiction existed, the court held that the delay was not inordinate or inexcusable given earlier procedural steps and ongoing settlement discussions.

The motion was therefore dismissed and costs awarded to the plaintiff.

The defendants brought a motion to dismiss or stay an action concerning alleged construction deficiencies in a new home.

The plaintiff had previously pursued warranty claims through the statutory regime under the Ontario New Home Warranties Plan Act and unsuccessfully litigated the issues before the Licence Appeal Tribunal and on appeal.

The court held that the action attempted to relitigate the same warranty issues and was barred by issue estoppel, res judicata, abuse of process, and collateral attack on tribunal decisions.

In addition, the defendants applied for an order declaring the plaintiff a vexatious litigant based on a long history of repetitive and abusive litigation conduct.

The court granted the application and imposed restrictions requiring leave of the court before the plaintiff could commence further proceedings against the defendants.

The plaintiff brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of financial records from a non‑party corporation, including financial statements, shareholder agreements, and accounting records.

The plaintiff argued the records were necessary to quantify damages arising from alleged breach of an oral employment agreement and fiduciary duties by former employees who allegedly diverted business.

The court held that production from a non‑party is exceptional and requires proof of relevance to a material issue and unfairness if production is denied.

Because the plaintiff elected to claim disgorgement of profits only from the named defendants and not the non‑party corporation, and there was no evidence that customers were diverted to the non‑party, the relevance requirement was not met.

The court further found the motion attempted to circumvent an earlier ruling denying the addition of the non‑party as a defendant due to the limitation period.

The motion for non‑party production was dismissed.

In a child protection appeal, the moving party sought disclosure of the Office of the Children’s Lawyer’s clinical investigator notes and records relating to a child represented by counsel.

The request was brought under s. 74 of the Child and Family Services Act after the Office of the Children’s Lawyer filed affidavits in support of a motion to admit fresh evidence on appeal.

The court held that communications between the child, counsel, and the clinical investigator assisting counsel formed part of the solicitor‑client relationship and were protected by solicitor‑client privilege.

The privilege belonged to the child and could not be waived by other parties.

The court further found that compelling disclosure would undermine the confidentiality essential to effective child representation and would also amount to an abuse of process given earlier opportunities to seek the material.

Following dismissal of an application concerning ownership and removal of a boundary tree under s. 10 of the Forestry Act, the successful respondents sought costs on a full indemnity or substantial indemnity basis, alleging abusive litigation conduct.

The court reviewed the jurisprudence governing elevated costs awards and confirmed that such awards are reserved for rare circumstances involving reprehensible, scandalous, or outrageous conduct.

The court found that the application raised a legitimate issue of statutory interpretation and that the parties conducted the litigation professionally and without abuse of process.

As none of the exceptional circumstances required for elevated costs were present, costs were fixed on a partial indemnity basis.

The respondents were awarded $10,000 in fees plus HST and disbursements of $2,951.48 plus HST.

The defendants brought a motion to strike portions of an amended statement of claim in a wrongful dismissal and defamation action brought by a former deputy fire chief against a municipality and its fire chief.

The impugned pleadings relied upon statements allegedly contained in a confidential report prepared for an in camera municipal council meeting concerning the plaintiff’s termination.

The court had previously ruled that the report was protected by solicitor-client and communications privilege under the Wigmore framework and was not producible.

Applying Rule 25.11 of the Rules of Civil Procedure and authority holding that references to privileged communications are scandalous, frivolous, or vexatious, the court found the pleading constituted an abuse of process.

The motion was granted and the offending paragraphs were struck, though the plaintiff was granted leave to bring a further motion to amend without relying on the privileged communication.

The accused brought a pre‑trial application seeking a stay of fraud charges on the basis of issue estoppel and abuse of process.

She argued that a prior civil tax proceeding in the Tax Court of Canada, resolved by consent judgment in her favour concerning liability for unremitted source deductions, determined the same central issue as the criminal prosecution.

The court held that issue estoppel requires a prior judicial determination on the merits and that a consent judgment does not constitute such a determination.

The court also found the record insufficient to establish that the civil and criminal proceedings addressed identical issues.

As the prerequisites for issue estoppel were not met, the application for a stay was dismissed.

Following the dismissal of an action on summary judgment as statute-barred, res judicata, and an abuse of process, the court considered the appropriate costs award.

The plaintiff had commenced a second action arising from the same underlying facts as a prior lawsuit that had already been dismissed and upheld on appeal.

The court held that the re-litigation of the same dispute justified an award of substantial indemnity costs due to the abusive nature of the proceeding and the allegations of misconduct made against the defendants.

However, the court declined to order costs personally against the plaintiff’s counsel despite finding that unnecessary costs were incurred, emphasizing the need for extreme caution and the protection of solicitor-client privilege.

Substantial indemnity costs were awarded against the plaintiff in the amount of $24,007.07 payable to the Scotia defendants.

Following a prior decision dismissing the main action as an abuse of process, the court addressed costs claims brought by multiple successful defendants and a third party.

The successful parties sought substantial indemnity costs, arguing the proceeding was abusive and barred by issue estoppel and contractual arrangements.

The court acknowledged that the action had been dismissed as an abuse of process but noted that the relevant issue estoppels had evolved over time through related litigation and appeals.

Exercising its discretion, the court declined to award substantial indemnity costs and instead ordered partial indemnity costs consistent with the ordinary principles in Rule 57.01 of the Rules of Civil Procedure.

The court fixed all-inclusive costs awards to the successful parties and declined to alter the normal rule regarding cross‑examination costs on affidavits.

The court addressed costs following a motion to set aside a purported ex parte default judgment that bore a forged judicial signature.

The court found that the plaintiffs had fabricated the judgment by copying and pasting the judge’s signature and had circulated the fake order to opposing parties and regulatory bodies as if it were a valid court judgment.

The court concluded that the conduct constituted a fraudulent and scurrilous attack on the administration of justice and amounted to reprehensible, scandalous, and outrageous behaviour.

Applying the principles governing full indemnity costs, the court held that the defendants were entitled to full indemnity costs as a form of chastisement and deterrence.

The plaintiffs were also barred from taking further steps in the proceeding until the costs were paid in full.