DATE: 2003-06-04

DOCKET: C38829

COURT OF APPEAL FOR ONTARIO

RE: FRED METRICK and CECILE METRICK (Plaintiffs (Respondents)) – and – PETER DEEB and HAMPTON SECURITIES LIMITED (Defendants (Appellants))

BEFORE: MOLDAVER, GOUDGE and CRONK JJ.A.

COUNSEL: James F. Diamond for the appellant Alistair Crawley for the respondent

HEARD: May 22, 2003

On appeal from the order of Justice William P. Somers of the Superior Court of Justice dated September 18, 2002 allowing an appeal from the order of Master Cork dated August 13, 2002.

E N D O R S E M E N T

[1] In order to resolve this appeal, we need not finally decide whether the letter of complaint and the ensuing investigation by the I.D.A. constituted the requisite ‘legal process’ needed to satisfy the first branch of the tort of abuse of process, namely: using the legal process for an improper and collateral purpose.

[2] Assuming that they could satisfy that test, the proposed counterclaim fails because it does not meet the second requirement for the tort, namely: the need for a definite act or threat in furtherance of the illegitimate purpose.

[3] The letter of complaint to the I.D.A. does not fulfil that requirement. The proposed counterclaim does not plead facts of a definite act or threat which, if proved, would sustain the appellants’ bare allegation that the letter of complaint was sent to the I.D.A. for the improper purpose of extorting them into settling the respondents’ civil claim. In this regard, we find the following passage from Fleming on Torts, 4^th ed. (1971) at p. 548 instructive:

The essential elements of abuse of process are: first, a collateral and improper purpose, such as extortion, and secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions [emphasis added].

See also Atland Containers Ltd. v. Macs Corp. (1974), 7 O.R. (2d) 107 (H.C.J.) at p. 111 and Fleming on Torts, 9^th ed. (1998) at p. 688.

[4] We would accordingly dismiss the appeal, albeit for reasons that differ from those given by Somers J. The respondents are entitled to their costs of the appeal on a partial indemnity basis fixed, as agreed by the parties, at $2,000, inclusive of disbursements and GST.

Signed: "M.J. Moldaver J.A." "S. T. Goudge J.A." "E.A. Cronk J.A."