Court of Appeal for Ontario

Date: August 29, 2025

Docket: COA-24-CV-0386

Judges: Sossin, Favreau and Monahan JJ.A.

Between

Pine Glen Thorold Inc. Plaintiff (Appellant)

and

Rolling Meadows Land Development Corporation and Glen Gordon Defendants (Respondents)

Counsel:

• Mark A. Klaiman, for the appellant
• Aaron A. Blumenfeld and Nick Hollard, for the respondents

Heard: February 25, 2025

On appeal from the order of Justice Michael J. Valente of the Superior Court of Justice, dated March 11, 2024, with reasons reported at 2024 ONSC 1464, 57 R.P.R. (6th) 60.

Favreau J.A.:

A. Introduction

[1] The appellant, Pine Glen Thorold Inc. ("Pine Glen"), commenced an action asserting several causes of action against the respondents, Rolling Meadows Land Development Corporation ("Rolling Meadows") and Glen Gordon. The claim arose from an agreement of purchase and sale pursuant to which Rolling Meadows agreed to sell land to Pine Glen to be developed into individual residential lots (the "APS"). Mr. Gordon is Rolling Meadows' principal.

[2] The respondents brought a motion to strike pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the claim did not disclose a reasonable cause of action. Alternatively, the respondents sought an order dismissing the action on the ground that it was an abuse of process. They further sought dismissal of the claim for pleading causes of action that were extinguished by the doctrine of merger.

[3] The motion judge found that the allegations in the statement of claim did not support any of the causes of action. He dismissed the claim on that basis and did not address the issue of abuse of process. He also denied leave to amend the claim because Pine Glen had already amended the claim once and that any new causes of action would likely be statute barred.

[4] On appeal, Pine Glen submits that the motion judge erred in dismissing three of the causes of action: (1) breach of the duty to act honestly and in good faith in its contractual performance, (2) oppression, and (3) the tort of intimidation. Pine Glen also submits that the motion judge erred in denying it an opportunity to amend the statement of claim.

[5] Rolling Meadows submits that the motion judge did not err in striking all causes of action and in denying leave to amend. Rolling Meadows also asserts that, even if the motion judge made any errors in his analysis of whether the claim discloses a cause of action, the claim should be dismissed as an abuse of process. Rolling Meadows asserts that the parties have already litigated the validity of the APS and all issues raised in this action could have been raised in the previous proceedings. Rolling Meadows further submits that the claim should be dismissed based on the doctrine of merger.

[6] I would dismiss the appeal. But I arrive at this conclusion on the basis that the claim is an abuse of process rather than because the claim does not disclose a reasonable cause of action.

B. Background

(1) The Agreement of Purchase and Sale

[7] Rolling Meadows owned approximately 400 acres of land in the City of Thorold, Ontario. It sold off portions of those lands to various builders for the purpose of developing residential properties.

[8] Pine Glen is a building company. Prior to the APS at issue in this case, Rolling Meadows and Pine Glen had entered into other agreements whereby Pine Glen purchased portions of the lands from Rolling Meadows.

[9] On June 2, 2020, the parties entered the APS that has led to this litigation. The APS set out a sale price of $4,466,000, based on 58 units with 20 feet of frontage at $3,850 per foot of frontage. The APS also included a provision that allowed Rolling Meadows to increase the purchase price by a maximum of $200 per foot of frontage at its sole discretion. The APS further provided that the sale was to be completed by June 15, 2023, but that Pine Glen could complete the purchase earlier on a lot-by-lot basis.

[10] On October 14, 2020, the parties signed an amendment to the APS. The APS amended the purchase price from $4,466,000 to $6,148,000. The amendment removed Rolling Meadows' option to increase the purchase price by up to $200 per foot of frontage. The amendment also removed conditions that Pine Glen be satisfied regarding the financial feasibility of the project and that Rolling Meadows obtain the City of Thorold's approval for the plan of subdivision by December 31, 2020.

[11] On January 25, 2022, Pine Glen submitted a Cooperation Agreement to Rolling Meadows that was meant to assist Pine Glen in obtaining construction financing. Rolling Meadows had signed a similar agreement in the context of an earlier transaction between the parties. Around that time, Pine Glen had entered into agreements of purchase and sale with buyers for all the lots it was to purchase from Rolling Meadows under the APS.

[12] Rolling Meadows refused to sign the Cooperation Agreement. Rolling Meadows also took the position that the purchase price was now $7,863,822 rather than $6,148,000.

[13] A dispute then arose between the parties regarding the terms and enforceability of the amended APS.

[14] In order to resolve this dispute, on February 2, 2022, Pine Glen proposed in writing that: (a) Rolling Meadows sign the Cooperation Agreement on a without prejudice basis; (b) Pine Glen commence construction of the units; and (c) if the parties were not able to resolve the dispute, Rolling Meadows would receive the $6,148,000, and the balance of the funds in dispute would be paid into court or held in trust pending a settlement or disposition by the court. Rolling Meadows did not agree to this proposal.

(2) The Applications Brought by Pine Glen and Rolling Meadows

[15] Both parties brought separate applications to the Superior Court.

[16] Pine Glen commenced its application on February 14, 2022. In its notice of application, Pine Glen sought a declaration that the purchase price under the APS was $6,148,000, and that the parties were bound by the terms of the APS as amended. Pine Glen also sought an order requiring Rolling Meadows to sign the Cooperation Agreement, but abandoned the request for this relief before the application was heard.

[17] Rolling Meadows commenced its application on April 12, 2022. In its notice of application, Rolling Meadows sought declarations that the APS was terminated or unenforceable on various grounds, including allegations that it signed the amended APS without the benefit of independent legal advice and under undue influence, and that Pine Glen had failed to pay the deposit required under the APS. Rolling Meadows also sought to convert the application to a trial on the basis that there were issues of fact and credibility in dispute.

[18] On August 4, 2022, D. L. Edwards J. (the "application judge") heard the parties' applications. In a decision released on August 11, 2022, the application judge granted Pine Glen's application and dismissed Rolling Meadows' application.

[19] The application judge found that Rolling Meadows agreed to the amended APS voluntarily and that none of the grounds on which Rolling Meadows purported to terminate the APS had any merit. He concluded that the issues raised by Rolling Meadows showed that its principal, Mr. Gordon, had "seller's remorse. He agreed to a purchase price that in retrospect he feels was too low and is searching for any reason to terminate the transaction": Rolling Meadows Land Development v. Pine Glen Thorold, 2022 ONSC 4653, at para. 105, aff'd 2023 ONCA 489. The application judge also disagreed with Rolling Meadows that a trial was required to decide the issues on the applications. The application judge made an order confirming the purchase price of $6,148,000, and that the parties were bound by the APS as amended.

[20] Rolling Meadows appealed the application judge's judgment to this court. In a decision released on July 18, 2023, this court dismissed the appeal, finding that the application judge made no errors in deciding the matter by way of applications as there were no issues of credibility or significant factual disputes. This court further found that the application judge made no error in finding that the amended APS was a binding agreement between the parties.

(3) The Completion of the Sale and Issuance of the Claim by Pine Glen

[21] On September 26, 2022, Pine Glen exercised its right to accelerate the closing of the APS, and the sale was completed on October 12, 2022. On that date, the purchased land was transferred from Rolling Meadows to Pine Glen for the purchase price of $6,148,000.

[22] On December 7, 2022, following the application judge's decision and the completion of the sale, Pine Glen issued a statement of claim against Rolling Meadows and Mr. Gordon. Pine Glen sought $5 million, asserting several causes of action: (1) breach of contract and attempted breach of contract; (2) inducement of breach of contract by Mr. Gordon; (3) intentional interference with contractual relations by Mr. Gordon; (4) breach of a duty to act honestly and in good faith in contractual performance; (5) breach of a duty pursuant to s. 134 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (the "OBCA") by Mr. Gordon to act in good faith, honestly and in the best interests of Rolling Meadows; (6) oppression pursuant to s. 248 of the OBCA; (7) the tort of intimidation; and (8) the tort of concerted design. Pine Glen subsequently amended its claim to add a claim for the tort of abuse of process.

[23] In its claim, Pine Glen describes the factual context and prior litigation between the parties that led to the application judge's decision. The claim alleges that Rolling Meadows and Mr. Gordon "sought every excuse to delay the hearing of the Applications as a means of applying economic pressure" on Pine Glen. The claim then describes the basis for pleading each cause of action, including allegations that Rolling Meadows raised "frivolous" defences, made "frivolous" allegations, refused to sign the Cooperation Agreement and refused to agree to Pine Glen's proposal of February 2, 2022. More details regarding the claim are set out below in the analysis.

(4) The Motion to Strike the Amended Statement of Claim

[24] Rolling Meadows brought a motion to strike Pine Glen's claim on the grounds that it did not disclose a viable cause of action, that it was an abuse of process and that some of the pleaded causes of action were extinguished by the doctrine of merger. Pine Glen amended its claim before the motion was heard to add a claim for the tort of abuse of process.

[25] The motion judge granted Rolling Meadows' motion to strike. In doing so, he reviewed each pleaded cause of action separately and found that none of them disclosed a reasonable cause of action.

[26] With respect to the claim for breach of a duty to act honestly and in good faith in contractual performance, the motion judge stated that the claim failed to plead that Rolling Meadows acted deceitfully, lied or knowingly misled Pine Glen when it sought to increase the contract price. The claim was deficient because it failed to allege intentionally misleading conduct, which goes to "the core of the duty to act honestly and in good faith in the performance of a contract".

[27] With respect to the claim for oppression, the motion judge found that Pine Glen failed to plead that it was a complainant under s. 245 of the OBCA. He further found that the claim failed to plead that Pine Glen was subject to conduct that was oppressive or unfairly prejudicial or disregarded the "interests of any security holder, creditor, director or officer of the corporation", as required by s. 248(2) of the OBCA.

[28] The motion judge found that the claim did not disclose a cause of action for the tort of intimidation because it failed to plead material facts in support of each element of the tort; specifically, the claim did not plead (a) an implied threat by Mr. Gordon, (b) that Mr. Gordon intended to injure Pine Glen, (c) the unlawful nature of the means used by Mr. Gordon to threaten Pine Glen, and (d) that Pine Glen complied with the threat. On this last point, the motion judge noted that, instead of complying with any alleged threat, Pine Glen initiated its application and obtained confirmation that the amended APS was valid and that the purchase price was $6,148,000.

[29] The motion judge also found that the claim did not disclose a cause of action for the tort of abuse of process because Pine Glen failed to plead that the dominant purpose for Rolling Meadows' application and for its defence to Pine Glen's application was to harm Pine Glen economically. Rather, as found by the application judge, Rolling Meadows acted as it did because it had seller's remorse and wanted to make more money from the sale. The motion judge further found that the claim did not plead a definite act or threat in furtherance of the improper purpose.

[30] Having found that the statement of claim did not disclose a reasonable cause of action, the motion judge stated that it was not necessary for him to decide the issue of whether the claim was an abuse of process.[1] He also denied leave to Pine Glen to amend its claim because it had already had an opportunity to amend the claim and there was no indication that it could improve the pleading. Additionally, the motion judge opined that any new causes of action pleaded would likely be "statute-barred".

C. Issues on Appeal

[31] Pine Glen appeals the motion judge's order on the grounds that he erred in striking the claims for (1) breach of a duty to act honestly and in good faith in contractual performance, (2) oppression, and (3) intimidation. Pine Glen further submits that the motion judge erred in denying leave to amend. For its part, Rolling Meadows submits that, even if the motion judge erred in striking some of the specific causes of action pleaded, the claim should nevertheless be dismissed as an abuse of process and based on the doctrine of merger.

[32] I would dismiss the appeal. However, contrary to the approach taken by the motion judge, I would dismiss the appeal because the claim should be dismissed as an abuse of process. Pine Glen seeks to litigate issues that were or could have been raised on the previous applications. In addition, to the extent that Pine Glen raises new issues, they arise from Rolling Meadows' conduct in the previous litigation and, as such, are not the proper subject of an action against the respondents.

[33] Analytically, it makes more sense to first look at the claim as a whole to determine whether it is an abuse of process. If the claim is an abuse of process, it is not necessary to examine each individually pleaded cause of action. In addition, the issue of whether Pine Glen should be permitted to amend its claim becomes irrelevant.

[34] In fairness to the motion judge, during the argument before this court, counsel for the respondents indicated that, on the motion below, he had first focused on the issue of whether Pine Glen's claim disclosed valid causes of action and then addressed the issue of abuse of process. The motion judge therefore decided the issues in the order in which they were presented to him. It would nevertheless have been preferable for him to first address the issue of abuse of process.

[35] I therefore start with the issue of abuse of process and then briefly address the other issues raised by Pine Glen.

D. Abuse of Process

[36] The respondents submit that Pine Glen's claim is an abuse of process because it deals with issues that were raised or could have been raised on the applications heard by the application judge. Pine Glen responds that its action is not an abuse of process because the first proceedings were applications, in the context of which it could not seek damages, and because it did not know all the damages it had suffered until the applications were decided.

[37] As noted above, the motion judge did not deal with the issue of whether Pine Glen's claim is an abuse of process. This court has characterized abuse of process as a question of mixed fact and law subject to the palpable and overriding standard of review absent an error of law: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, at para. 19; Davies v. Clarington (Municipality), 2023 ONCA 376, 167 O.R. (3d) 33, at para. 48. In contrast, the Supreme Court has stated that abuse of process is a question of law alone and that the applicable standard of review is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 30; Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 31. It is not necessary to address this discrepancy in this case. The issue of the standard of review does not arise because the motion judge did not decide whether the claim was an abuse of process. This issue must be decided de novo.

[38] I am satisfied that Pine Glen's action is an abuse of process for two primary interrelated reasons. First, Pine Glen's action raises many issues it raised or could have raised before the application judge. Second, any new issues Pine Glen raises relate to the conduct of the litigation below, which is not the proper subject of a civil action against the respondents.

[39] I start with a general discussion of the doctrine of abuse of process followed by my analysis of its application to the circumstances of this case.

(1) Legal Framework

[40] Pursuant to r. 21.01(3)(d) of the Rules of Civil Procedure, the court can stay or dismiss an action on the basis that the action is an abuse of process. In addition, judges have an inherent discretion to prevent an abuse of the court's process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35.

[41] The doctrine of abuse of process applies in a variety of legal contexts: C.U.P.E., at para. 36; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 39. Amongst other matters, the doctrine of abuse of process can serve to prevent the relitigation of issues that have already been decided: C.U.P.E., at para. 37. It also applies to issues that could have been determined in prior proceedings: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491; Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal refused, [2019] S.C.C.A. No. 438; The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 284; and Quinn v. British Columbia, 2018 BCCA 320, 425 D.L.R. (4th) 642, at para. 84, leave to appeal refused, [2018] S.C.C.A. No. 463. Unlike the doctrines of res judicata or issue estoppel, abuse of process is characterized by its flexibility and is not encumbered by specific requirements: C.U.P.E., at para. 42; Behn, at para. 40; and Abrametz, at para. 35. Ultimately, it serves to prevent the pursuit of litigation that would "violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice": C.U.P.E., at para. 37.

[42] As the Supreme Court explained in C.U.P.E., at para. 43, "[T]he primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts … [T]he focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice." The doctrine of abuse of process "engages the inherent power of the court to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute": Métis Nation, at para. 33; see also C.U.P.E., at para. 37; Behn, at para. 39; and Abrametz, at para. 33.

[43] While the doctrine of abuse of process can prevent the relitigation of issues that were raised or could have been raised in prior proceedings, ultimately the court's decision to dismiss a proceeding as an abuse of process is discretionary: C.U.P.E., at para. 53; and Métis Nation, at para. 32. There are circumstances in which the court should not exercise its discretion to dismiss a proceeding as an abuse of process. These circumstances include where the stakes were too low in the original proceeding "to generate a full and robust response", where new evidence is discovered, or where there was a tainted or unfair process in the original proceeding: C.U.P.E., at para. 53.

[44] In Métis Nation, at para. 38, the Supreme Court explained that an abuse of process can arise from a multiplicity of proceedings that engage the same issues. However, the court emphasized that the fact that two or more proceedings engage the same issues is not on its own sufficient to find an abuse of process. Rather, "there may be instances where parties have a valid reason for bringing separate, but related, proceedings; in such cases, a multiplicity of proceedings can serve to enhance the administration of justice": at para. 39. But the court also noted that "pleadings do not need to be identical in order for a multiplicity of proceedings to amount to abuse of process": at para. 39. Ultimately, the court emphasized that the analysis requires looking at whether "allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice": at para. 40. The court pointed to proceedings that "would waste the resources of the parties, courts and witnesses, or risk inconsistent results" as examples of duplicative proceedings that could constitute an abuse of process: at para. 40.

(2) Overview of the Analysis

[45] Pine Glen's claim seeks damages from the respondents for the delay caused by the respondents' refusal to complete the APS and by their conduct in the previous litigation. As such, Pine Glen's claim arises from the same factual circumstances as the applications heard by the application judge and from the conduct of the previous litigation. Pine Glen's attempt to litigate both sets of issues, whether viewed separately or in combination, is an abuse of process. Rolling Meadows' refusal to complete the APS and its reasons for doing so were at the core of the previous litigation. The issue of damages caused by the delay arising from Rolling Meadows' refusal to close the APS is one that Pine Glen could have raised in the previous litigation. Its new claim raising the same issue amounts to litigation by instalment. In addition, Pine Glen's attempt to sue the respondents for their conduct in the previous litigation, absent something more such as an improper purpose, is an abuse of process as there would potentially be no end to the litigation.

[46] I start with an analysis of the claim that shows that it arises from the same factual context as the previous litigation and from the conduct of the litigation itself. I then explain that Pine Glen could have raised the new issues related to the APS it now raises in the prior litigation and that the new claim otherwise improperly attacks Rolling Meadows' conduct in the prior litigation. Finally, I address the issue of whether the court should exercise its discretion not to dismiss the claim as an abuse of process.

(3) The Subject Matter of the Respective Legal Proceedings

[47] As previously reviewed, the applications brought by Pine Glen and Rolling Meadows addressed the validity and enforceability of the APS as amended. In his decision, the application judge found in Pine Glen's favour and concluded that the amended APS was valid and enforceable, and that the purchase price was $6,148,000, as submitted by Pine Glen. In reaching this conclusion, the application judge reviewed and rejected each issue Rolling Meadows raised in seeking to invalidate the APS.

[48] In its new claim against Rolling Meadows and Mr. Gordon, Pine Glen sets out the history of the dealings between the parties leading to the previous litigation, including:

a) The terms of the original APS;

b) The amendment to the APS, which raised the purchase price to $6,148,000;

c) Rolling Meadows' agreement to a Cooperation Agreement during a prior transaction, which had enabled Pine Glen to obtain necessary financing;

d) Pine Glen's request that Rolling Meadows enter into a similar Cooperation Agreement for this APS, and Rolling Meadows' refusal to sign it and its accompanying request for a further increase in the purchase price;

e) Pine Glen's proposal to resolve the dispute in the terms set out in its letter dated February 2, 2022, and Rolling Meadows' refusal to agree to the proposal; and

f) A description of the parties' applications to the Superior Court, including a full quote of the relief sought by Rolling Meadows on its application.

[49] The claim then alleges that Rolling Meadows "sought every excuse to delay the hearing of the Applications" for the purpose of putting economic pressure on Pine Glen. The claim pleads that "one of the purposes of the delay was to prevent [Pine Glen] from commencing construction and completing its obligations with its customers." The claim further alleges that Rolling Meadows' motivation was to try to terminate the APS "because it wanted to sell the lots for a price greater than it sold to [Pine Glen]."

[50] The claim goes on to describe the application judge's decision. The claim states that Rolling Meadows has appealed the decision. The claim further indicates that the APS closed on October 12, 2022, at a purchase price of $6,148,000.

[51] After setting out this factual background, the claim lists each cause of action Pine Glen relies on. The key allegations made against Rolling Meadows and Mr. Gordon are set out in paragraph 28 of the statement of claim which pleads the claims for breach of contract, attempted breach of contract and acting dishonestly and in bad faith in performance of the contract:

The Plaintiff pleads that the Defendant did, or, attempted to breach their agreement by refusing to honour the terms of the Phase 4 APS, and the amendment to the Phase 4 APS. The Plaintiff further pleads that the Defendants acted dishonestly and in bad faith in the performance of their contract. Specifically, they:

a) raised frivolous defences regarding to the amendments to the APS;

b) made frivolous allegations that deposits were not paid;

c) attempted to delay the hearing of the applications for the purposes of applying economic pressure on the Plaintiff;

d) refused to accept a proposal to achieve an internment [ sic ] resolution which would permit construction to proceed;

e) refused to sign the Cooperation Agreement;

f) took the position that the Plaintiff was breach [ sic ] and attempted to terminate the Phase 4 APS so that it could resell the said lands for more than Phase 4 APS between the parties.

[52] The balance of the claim relies on items (a) through (f) in paragraph 28 in support of the other pleaded causes of action.

[53] Ultimately, Pine Glen pleads that it suffered damages because of the delay caused by the litigation before the application judge:

The Plaintiff was delayed completing the Purchase of the Phase 4 lands and commencing construction, until the matter was heard and determined by the Honourable Justice Edwards.

As a result thereof, the Plaintiff has suffered loss and damage, including, but not limited to, increased construction costs, increased financing costs, and other losses. Full particulars of the losses are unavailable at the time of this pleading, but a Bill of Particulars will be delivered prior to the Trial of this action.

(4) The Claim is an Abuse of Process

[54] Based on the review above, it is evident that the crux of Pine Glen's claim is set out in paragraph 28. Each of the allegations in items (a) through (f) of paragraph 28 relate to Rolling Meadows' conduct in refusing to close the APS and its conduct in the prior litigation. Items (a) ("frivolous defences"), (b) ("frivolous allegations"), (c) ("attempted to delay the hearing") and (f) ("took the position [Pine Glen] was [in] breach") relate to the conduct of the litigation. Items (d) ("refused to accept a proposal") and (e) ("refused to sign the Cooperation Agreement") relate to positions taken by Rolling Meadows leading up to the litigation.

[55] As I explain below, the portion of the claim based on positions Rolling Meadows took leading up to the applications are issues that were already decided or that could have been decided in the prior proceedings. The portion of the claim based on Rolling Meadows' conduct in the litigation cannot form the basis for a civil claim.

(i) Issues That Were Raised or Could Have Been Raised in the Previous Litigation

[56] The factual background to the previously decided applications and Pine Glen's new claim are identical. They both arise from the APS and Rolling Meadows' refusal to close the APS as amended. The application judge's decision focused on issues that arise again on Pine Glen's new action, namely whether there was any merit to Rolling Meadows' refusal to close, including its motivation for doing so. As noted above, the application judge explicitly found, at para. 105, that: "It is clear to me from Rolling Meadows' position [on] the water bills and other issues that it raised that Mr. Gordon has seller's remorse. He agreed to a purchase price that in retrospect he feels was too low and is searching for any reason to terminate the transaction."

[57] Viewed from this perspective, Pine Glen's claim raises issues that have already been litigated in so far as it addresses Rolling Meadows' conduct in refusing to close the APS. The issue of Rolling Meadows' attempt to resile from the APS and its reasons for doing so have already been decided.

[58] The only differences between the two proceedings are that Pine Glen seeks damages for the delay in closing the APS, and that it claims Rolling Meadows acted in bad faith by refusing to sign the Cooperation Agreement and to agree to the February 2, 2022 proposal. In my view, these are issues that could have been raised in the previous proceedings.

[59] Pine Glen argues that the earlier proceedings were applications and that it did not have an opportunity to seek damages in the context of an application. I agree that it would not have been open to Pine Glen to seek damages on its application given the limits in r. 14.05(3) regarding the types of relief that may be claimed in an application. However, this does not end the inquiry. The doctrine of abuse of process is flexible and does not require that the two sets of proceedings be identical: Abrametz, at para. 35; C.U.P.E., at para. 49.

[60] In this case, Pine Glen initially chose to bring an application, but it could have brought an action for damages instead. Nor did Pine Glen try to convert its application to an action when it became aware that it would suffer damages because of the delay in completing the transaction. Rule 38.10 empowers the court to order a trial of all or part of an application and to treat the proceeding as an action. As part of an action, Pine Glen could have sought damages in addition to its claim for declaratory relief. If necessary, to avoid further delay in closing its sales, Pine Glen could have brought a motion for interim relief compelling the closing in the context of an action. All these procedural paths were open to Pine Glen. The option that it chose instead, the combination of an application followed by an action, is an abuse of process because it amounts to litigation by instalment: Skypower CL 1 LP and Others v. Ontario Power & HMQ, 2014 ONSC 6950, at para. 31, aff'd 2015 ONCA 427; Catalyst, at para. 66; PricewaterhouseCoopers Inc v. Perpetual Energy Inc, 2022 ABCA 111, 98 C.B.R. (6th) 161, at paras. 81-82.

[61] I recognize that this is different from a situation where a party was unsuccessful in the first proceeding and advances a different theory of a case in a subsequent proceeding. However, the rationale underlying the general principle that a party should not have to respond to the same or a similar claim twice applies equally in circumstances where the party was successful in the first proceeding; in such circumstances, courts should equally be concerned with issues of judicial economy, consistency, finality and the integrity of the judicial system.

[62] Pine Glen argues that it did not know the full extent of its damages until it obtained the declaration from the Superior Court and was able to close on the APS. Parties often do not know the extent of their damages when they bring a claim: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 61, citing Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 18. Damages can escalate throughout the litigation. In fact, in this case, Pine Glen pleads that it does not yet know the extent of its damages and that particulars will be provided prior to trial.

[63] Pine Glen could also have raised the issues of the Cooperation Agreement and the settlement proposal on its previous application. In fact, on its application, Pine Glen initially sought a declaration that Rolling Meadows had an obligation to sign the Cooperation Agreement but abandoned that position prior to the hearing of the applications. In so far as the settlement proposal is concerned, it may well be an issue covered by settlement privilege: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 17. In any event, even if it was appropriate for Pine Glen to rely on the settlement proposal as an instance of Rolling Meadows' unreasonable conduct and delay, this is an issue that could have been raised on the applications.

(ii) Issues Related to the Conduct of the Previous Litigation

[64] The most concerning aspect of Pine Glen's claim is that its primary focus is on Rolling Meadows' conduct in the previous litigation. Pine Glen essentially alleges that Rolling Meadows created a situation that required litigation and then took positions that were meant to delay the litigation. In my view, bringing a civil action based on prior litigation to which the plaintiff was a party is itself, as a general matter, an abuse of process.

[65] There are very limited circumstances when a party can pursue a civil claim based on the conduct of prior litigation. Two notable exceptions are the torts of malicious prosecution and abuse of process. Both exceptions impose strict requirements to ensure that claims based on prior litigation can only be brought in very limited circumstances where the conduct at issue risks undermining the "integrity of the judicial process": Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 50.

[66] For this reason, amongst other elements, a successful claim for malicious prosecution requires a plaintiff to meet a high bar in showing that the defendant acted maliciously. As the Supreme Court explained in Henry, at para. 51, the "malice standard will only be met in exceptional cases where the plaintiff can prove, on a balance of probabilities, that a prosecutor's decision to initiate or continue a prosecution was driven by an improper purpose or motive. To be improper, that purpose or motive must be wholly inconsistent with Crown counsel's role as minister of justice."

[67] A claim for the tort of abuse of process requires the plaintiff to show four elements, namely that (1) the plaintiff is a party to a legal process initiated by the defendant, (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective, (3) the defendant took or made a definite act or threat in furtherance of the improper purpose, and (4) some measure of special damages resulted: Harris v. Glaxosmithkline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, at para. 27, leave to appeal refused, [2011] S.C.C.A. No. 85. Elements (2) and (3) ensure that parties cannot engage in an endless series of retaliatory litigation, but rather can sue for being sued only in exceptional circumstances. In such cases, the plaintiff must show that the litigation was brought not to succeed on the claim, but for some other indirect, collateral and improper objective. In addition, there must be some definite act or threat outside of the proceedings themselves meant to further the improper objective: Harris, at para. 37. This court has emphasized the need for an overt act outside the legal proceedings "because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions": Metrick v. Deeb, 172 O.A.C. 229, at para. 3, leave to appeal refused, [2003] S.C.C.A. No. 378, citing John G. Fleming, The Law of Torts, 4th ed. (Sydney: Law Book Co., 1971), at p. 548.

[68] In this case, Pine Glen pleaded the tort of abuse of process, which was struck by the motion judge. Quite correctly, the motion judge found that Pine Glen's claim failed to plead the second and third elements of the tort of abuse of process. With respect to the second element, the motion judge relied on the application judge's determination that Mr. Gordon had "seller's remorse" and had "agreed to a purchase price that in retrospect he feels was too low and is searching for any reason to terminate the transaction." On this basis, the motion judge found that "it is plain and obvious … that the dominant purpose in Rolling Meadows' 2022 application was not to cause economic harm to [Pine Glen]": at para. 94. The motion judge also found that the claim failed to plead a definite act or threat outside the litigation by the respondents in furtherance of the alleged improper purpose of causing Pine Glen economic harm.

[69] Notably, Pine Glen did not appeal the motion judge's order striking its claim for abuse of process. But that does not mean that the tort of abuse of process is irrelevant to the analysis of whether Pine Glen's claim as a whole should be dismissed pursuant to the doctrine of abuse of process. As reviewed above, the elements required in support of a claim for abuse of process highlight how rarely a party should be able to pursue a claim based on another party's initiation of or conduct in separate litigation. Regardless of the pleaded causes of action, this is the core of Pine Glen's action against the respondents.

[70] In general, parties should be permitted to resolve their disputes through litigation without the fear of further proceedings based on the conduct of the litigation. Narrow exceptions exist where a party can bring a viable claim based on the torts of malicious prosecution or abuse of process, or some similar cause of action that is specifically based on the intentional or malicious misuse of litigation. Absent such a claim, in my view, it would be an abuse of process to allow Pine Glen to pursue an action founded on the positions and strategies Rolling Meadows took in the previous litigation.

[71] This does not mean that parties are without a remedy when faced with unreasonable conduct in litigation. As contemplated by r. 57.01(e)-(f)(i), costs sanctions are the typical means available for addressing unreasonable conduct in litigation: 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447, at para. 71. Conversely, absent exceptional circumstances, litigation based on conduct in a prior proceeding would typically undermine the principles of judicial economy, consistency, finality and the integrity of the administration of justice.

(5) Discretion Not to Dismiss the Action as an Abuse of Process

[72] As indicated above, the doctrine of abuse of process is subject to the court's discretion. Even where an action appears to be an attempt at relitigation, the court retains discretion to determine whether the circumstances warrant dismissing the claim or allowing it to proceed.

[73] I am satisfied that Pine Glen's action should be dismissed on the basis that it is an abuse of process. There is no new evidence, no allegation that the first proceeding was tainted, nor is this a case where the administration of justice would be better served by allowing relitigation: C.U.P.E., at paras. 52-53. Again, at its core, Pine Glen's action is based on Rolling Meadows' conduct in previous litigation. Absent a viable claim for the tort of abuse of process, this is precisely the type of proceeding the doctrine of abuse of process is available to guard against.

E. The Other Issues Raised on Appeal

[74] Pine Glen's primary position on appeal is that the motion judge erred in dismissing the claims for (1) breach of a duty to act honestly and in good faith in contractual performance, (2) oppression and (3) intimidation. Pine Glen further argues that, even if its pleading of these causes of action was deficient, it should have been granted leave to amend its claim.

[75] Given my conclusion that the claim as a whole is an abuse of process, it is not necessary to address these arguments. I would only observe that I should not be taken as endorsing or accepting the motion judge's analysis of the constituent elements of these causes of action and how they apply in this case. Most significantly, I have concerns with the motion judge's statement that Pine Glen should not be granted leave to amend its claim because any new causes of action it would assert would likely be statute barred.

[76] However, given my conclusion that the claim is an abuse of process, it is not necessary to address these issues, or the argument made by the respondents that the claim should be dismissed based on the doctrine of merger.

F. Disposition

[77] I would dismiss the appeal.

[78] As agreed between the parties, the respondents, as the successful parties, are entitled to costs in the amount of $35,000 all inclusive.

Released: August 29, 2025

"L.S."

"L. Favreau J.A."

"I agree. L. Sossin J.A."

"I agree. P.J. Monahan J.A."

Footnote

[1] It is important not to confuse the tort of abuse of process with the doctrine of abuse of process. As this court has explained, the tort of abuse of process and the doctrine of abuse of process "are fundamentally different in law and each has its own legal requirements": Mitchinson v. Baker, 2015 ONCA 623, 128 O.R. (3d) 220, at para. 14, leave to appeal refused, [2015] S.C.C.A. No. 552.