Tag: abuse of process

29 Oct

The Works: Res Judicata, Collateral Attack and Abuse of Process – Reasons for Dismissal

Kira Domratchev Litigation Tags: , , 0 Comments

The Ontario Court of Appeal recently upheld a motion judge’s decision striking a Statement of Claim and dismissing an action on the basis that it was (i) res judicata, (ii) a collateral attack on a previous order of the Court and (iii) an abuse of process.

The Appellant in the matter of Wright v Urbanek, 2019 ONCA 823, sought to challenge the validity of a family trust that was established in connection with an estate freeze involving a company that the Appellant and his late wife instituted in 2007.

The action was commenced by the Appellant four days after losing his daughter’s oppression application which resulted in his removal as trustee of the family trust and as director and officer of the company.

The motions judge found that having lost the oppression application, the Appellant sought to advance “a new and inconsistent theory” which could have been sought as part of the application itself.

The Court of Appeal agreed with the motions judge such that the cause of action challenging the validity of the family trust was known to the appellant and could have been pursued in the oppression application. In fact, the Appellant seemed to be questioning the validity of the family trust in his factum and did not ultimately pursue this theory in the application.

The Court of Appeal held that a challenge to the validity of the family trust would now interfere with the implementation of the Order in respect of the application which was upheld on appeal. It was further held that raising this issue would essentially involve re-litigating the application and would be a “misuse of the court’s procedures in a way that would bring the administration of justice into disrepute”.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Doctrine of Abuse of Process

Cost Award for Successful Motion for Summary Judgment

Peering behind the Curtain: Costs against Non-Parties

04 Nov

Cost Award for Successful Motion for Summary Judgment

Hull & Hull LLP Estate & Trust Tags: , , , 0 Comments

Successful motions for summary judgment are rare occurrences, and any guidance on costs awards is welcome.  Justice Mesbur’s costs endorsement in the personal injury case Asmassu v. John (2009), 2009 CanLII 58579 (On S.C.) is a straightforward application of costs principles on a successful motion for summary judgment by co-defendants.   

This motion arose in a claim that was one of a series of lawsuits by the plaintiff against the co-defendants, all arising out of the same set of facts.  As the pleadings disclosed no reasonable cause of action, in that context, the proceeding amounted to an abuse of process.  The claim included allegations of serious professional conduct and the relief sought included damages of $50 million.  As Justice Mesbur wrote,

"He cannot make claims like this without expecting that they will be vigorously defended, with significant costs being incurred as a result.  Given the level of the claim, the importance of the issues to the parties, and all the other factors enumerated under the rules, I am of the view that the amounts claimed for costs are fit and just in all the circumstances."

Justice Mesbur awarded the full partial indemnity costs claimed by both co-defendants.  The hospital’s solicitors had reduced their partial indemnity rates from $32,000 to $20,000, and Justice Mesbur emphasized this reduction in awarding the full $20,000.  The doctor’s solicitor was awarded claimed partial indemnity costs of $10,393.35, lower than the hospital since the hospital’s solicitor had made most of the submissions.    

Have a great day,

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.



21 Jan

The Doctrine of Abuse of Process

Hull & Hull LLP Uncategorized Tags: , , , 0 Comments

Welcome to my week of blogs.  I hope you enjoy the eclectic mix of topics and issues that I will blog on this week.

I recently came across a case that considered the doctrine of abuse of process. While it was a family law dispute, the case nevertheless caught my attention as abuse of process cuts across all areas of the law, including estate litigation.

The Supreme Court of Canada had this to say about abuse of process:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonourable, or status of the parties. 

In the context of estate litigation, where emotions are often raw and grievances long held, a party to an action cannot be blinded by perceived motives when considering whether to strike a claim as an abuse of process. 

The best way to approach abuse of process is to consider claims that the court has held to be an abuse of process. A good example is where a party re-litigates a claim, however disguised, solely to achieve a more favourable judicial result or harass the other side.  Such a case is both manifestly unfair to the defendant as well as bringing the administration of justice into disrepute.  

The real attraction of the doctrine of abuse of process is its flexibility and the latitude it provides the court in its application. However, as with all procedural or early motions, it is often a difficult case to meet. The facts must be clear in order to successfully argue that a claim should be struck as an abuse of process. 



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