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Appellate Litigation

Abuse of process occurs when a court determines that a party’s actions are detrimental to the administration of justice in some way.

Establishing Abuse of Process

The tests for the tort of abuse of civil process are difficult ones to overcome. They arise in unusual situations. First, there must first be collateral and improper purpose motivating the litigation (such as blackmail or extortion) and secondly, a specific overt act or statement made in furtherance of the motive and purpose and one which is otherwise not legitimate in the normal use of the process. The overt requirement is necessary to distinguish the situation of someone with a bad motive but who otherwise uses the litigation process to its natural conclusion for which there is no cause of action and hence, no liability.

The elements for the tort of abuse of civil process were effectively set out in the 2003 ONCA decision Metrick v. Deeb:

  • the plaintiff has been subjected to a legal process by the defendant;
  • this has been done predominantly to further some indirect, collateral and improper purpose;
  • some definite act or threat has been made in furtherance of that purpose; and
  • some measure of special damage has resulted.

In a recent decision, the ONCA was faced with determining if a civil action in the form of a counterclaim against an estate was in fact an abuse of court process and subject to a damages award in favour of the defendants of the counterclaim.

Brother of Deceased Testator Files Notice of Objection in Estate Matter

A deceased testator named his sisters as his estate representatives and sole beneficiaries. His Will was executed just four days before his death. The gifts in the written Will were the same as those he had previously made in a holographic Will sometime earlier. The deceased’s brother filed a Notice of Objection to the proceedings in which the sisters sought a Certificate of Appointment of Estate Trustee with a Will. The Objection arose out of the brother’s desire to challenge the validity of the Will. The estate owed a significant debt to the Canada Revenue Agency (“CRA”), and the Objection had the effect of significantly delaying the estate’s ability to sell assets of the estate in order to pay the debt.

Pleadings were exchanged and examinations for discovery were completed. The sisters’ defence to the Objection included a counterclaim which sought damages equal to the amount of interest and penalties for which the estate would be liable with respect to the CRA debt as a result of the delay.

They further sought damages for any other losses the estate incurred due to the Estate Trustees’ inability to administer the estate as a result of the brother’s Objection.

Sisters Were Successful on First Instance

The sisters brought a motion for summary judgment and costs on the counterclaim, at which point the brother withdrew his Objection. The motions judge awarded the sisters damages as well as costs. The decision awarded damages on the basis that the motions judge found the brother’s Objection to be completely without merit.

These damages ($26,475.44) were equal to the penalties and interest the estate had to incur and then pay to the CRA. As an alternative basis for the decision, the motions judge ordered the brother to pay this amount as legal costs to the estate. There was also an additional award of $10,000 for the costs of litigating the Objection.

ONCA: Pursuing Litigation is not in Itself an Actionable Wrong

The brother appealed to the Ontario Court of Appeal (ONCA), where he was successful.

The ONCA found that there is no cause of action for bringing civil proceedings other than an abuse of civil process, which was neither alleged nor proven by the sisters. Further, the facts did not meet the test for the tort of abuse of civil process as set out above. Commencing and pursuing litigation in an of itself is not an actionable wrong, even when that litigation may be without merit or vexatious. There are two exceptions to this principle, neither of which applied in the case at hand:

  1. Where by statute, regulation, or common law principle, an award of damages may be available for wrongful recourse to certain kinds of legal process; or
  2. Where the tort of abuse of civil process is pleaded and proved by one of the parties.

It had already been established that the tort of abuse of civil process had not been pleaded by the sisters. As for the first exception, there was no statute, regulation, or common law principle to award estate administration costs (other than legal costs and disbursements) arising from bringing estate litigation.

If you have a question about civil litigation, the highly skilled Toronto corporate lawyers at Milosevic & Associates can help. We can provide you with advice and guidance suited to your unique situation. Call us at 416-916-1387 or contact us online to learn more about how we can help.