A party that wishes to avoid the consequences of a court order may consider initiating new proceedings in a different forum with the hope of achieving a different result. The law has developed the Collateral Attack Rule to hinder such efforts and protect the justice system’s integrity. Several years ago, the Court of Appeal provided a useful review of this rule and its nuances in R. v. Irwin.

What is the Collateral Attack Rule?

The Supreme Court of Canada has said that a collateral attack is an attack on an order “made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order” (see Wilson v. The Queen). In other words, the law generally only permits a court order to be attacked through the ordinary course of appeal or similar proceedings. Otherwise, the law says an order issued by a court must be obeyed (see R. v. Bird).

In Irwin, the Court of Appeal cited case law from Saskatchewan to summarize the rule this way:

“In practical terms, the common law rule prevents a person charged with violating a court order from saying, in his or her defence to that charge, that the order is invalid or unlawful.”

Courts have confirmed limited exceptions to this rule, although it is difficult to determine exhaustively what those exceptions are. In Irwin, for example, the Court of Appeal noted that fraud in the manner an order was made might be sufficient to vitiate the rule.

What Kind of Orders Does the Collateral Attack Rule Apply To?

The Rule applies not only to court orders but also to orders issued by administrative bodies. Administrative bodies are generally creatures of statute, given decision-making powers by their governing legislation. Courts have long been aware of the tension between the need to ensure that the legislature’s decision to grant such power to administrative bodies is supported. Yet, they permit parties to challenge orders issued by them.

The Supreme Court of Canada has said that, in situations involving an administrative body, the focus needs to be on whether the legislature “intended to permit collateral attacks” on an order of that body or, instead, whether the legislature intended that such an order be challenged through “other review mechanisms” (see Irwin).

As the Court of Appeal outlined in Irwin, in determining the intention of a legislature concerning challenging the validity of an administrative order, five non-exhaustive factors may be considered:

• the wording of the governing statute;
• the purpose of the statute;
• whether or not a right of appeal exists;
• “the kind of collateral attack in light of the expertise or raison d’etre of the administrative appeal tribunal;” and
• the penalty applicable to a conviction for violating the order.

Irwin describes these facts as not absolute but as “important clues, among others, for determining the legislature’s intention.”

Courts Retain the “Residual Discretion” Not to Apply the Rule in Certain Circumstances

The Court of Appeal noted in Irwin that the Collateral Attack Rule is not to applied “mechanically” where doing so “would result in an injustice.” Where a collateral attack can be made without harming the “compliance component of the rule of law” and without damaging the “repute of the administration of justice” or “the orderly and functional administration of justice,” such an attack may be permissible (see, for example, R. v. Domm). Again, Courts retain the residual discretion in such circumstances not to apply the rule.

Where the legislature has provided an appeal mechanism for challenging an administrative order, a court must generally adhere to the rule. In those circumstances, orders of administrative bodies are generally immune from such attacks (see Irwin).

What Are the Limits to the Application of the Rule?

The Court in Irwin observed that, before determining whether the Collateral Attack Rule applies, a court should “review the defence or legal argument being asserted to determine whether it is correctly characterized as a collateral attack.” If it is not, then the Rule does not apply. The focus should be on whether the legal argument attacks the order itself and its legal effect.

How is the Rule Related To Abuse of Process?

The Collateral Attack Rule is closely related to other legal doctrines that, individually and together, uphold the principle of finality in litigation. Other doctrines include issue estoppel, cause of action estoppel, and abuse of process. In Penner v. Niagara (Regional Police Services Board), the dissenting justices of the Supreme Court of Canada explained that the principle of finality of litigation upholds the justice system’s fairness and efficacy. It provides both “an economic and psychological necessity” to the parties and limits the “economic burden” on the system.

Abuse of process is the most flexible of these doctrines and applies to all (see The Catalyst Capital Group Inc. v. VimpelCom Ltd.). The doctrine is rooted in the Court’s inherent power to prevent the abuse of its own processes. It is a broad concept that applies in various contexts and is largely unencumbered by specific requirements, instead permitting a court to focus on protecting the integrity of its adjudicative functions. For example, the doctrine has been applied to prevent a party from relitigating a case.

An abuse of process may be established where a proceeding is “oppressive or vexatious,” and it violates “the fundamental principles of justice underlying the community’s sense of fair play and decency” (see R. v. Scott). Thus, a party that wishes to circumvent the consequences of a court order through alternate proceedings should be aware that such action may violate the Collateral Attack Rule and constitute an abuse of process. Courts retain a broad discretion under this principle to ensure the integrity of their own functioning.

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