What leads to a solution in litigation can be two-fold: the law relied on which leads to a substantive remedy to the alleged wrong, and the court’s procedures that ensure the court process is open, fair and efficient.
Improper use of the procedure and perverting the law lead to abuse. Below we explain the types of abuse of process and how the law resolves an abuse of process claim.
Abuse of the Court’s Procedures – Focused on Pleadings
When the court procedures were deviated from, in an attempt to relitigate a claim that has already been decided on previously (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63) or to start a new claim to avoid the administrative review process or an appeal (see para. 32 in Willow v. Chong, 2013 BCSC 1083), these attempts will have the effect of prolonging the court processes, unfairly forcing the responding party to mount a second defence: they are therefore an abuse of the court’s procedural process.
Supreme Court Civil Rule 9-5 (1) d provided the remedies as following:
At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that
(a) it discloses no reasonable claim or defence, as the case may be,
… or
(d) it is otherwise an abuse of the process of the court,
and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.
The unitary court process in BC is by design to be linear, simple to navigate and to prevent duplicating processes. When the viable routes of an application for judicial review or an appeal were not pursued (para. 40 in Willow v. Chong, 2013 BCSC 1083), and the plaintiff started a claim in the Supreme Court of British Columbia because of the plaintiff’s dissatisfaction with a judgment delivered by an administrative tribunal, the solution is to strike the offending claim.
There are, however, two principles to note when bringing an application based on Rule 9-5 (1) d: first, the court’s power to “strike” (or to eliminate a claim) is discretionary – the court has a function to distinguish an attempt to relitigate the same issue, from a real dispute that has not yet been before the court. In Willow v. Chong, while the judge dismissed the re-litigation attempt, the fresh and new claim against the other two defendants was allowed to proceed (at para. 118).
The second principle is that the court will consider permitting the parties to amend their claim to clarify ambiguities and to remove redundancies (see para. 23 in Willow v. Chong, 2013 BCSC 1083).
Further, pursuant to Rule 9-5 (1), the court can award costs as a consequence of abusing the court’s procedures, but a monetary award or “damages” were not provided by the procedural law and therefore cannot be given.
In addition, the abuse of court procedures must be distinguished from procedural irregularities such as delays in filing a court document, failure to use the correct forms or unclear pleadings. Irregularities are not considered as a form of abuse and they do not nullify a proceeding (see Supreme Court Civil Rule 22-7).
Abuse of the Law and of the Use of Court Process – An Intentional Tort
Abuse of the court’s procedures is relatively easier to discover, as the responding parties had already gone through a different forum to resolve the same issue: these parties can bring to light the re-litigation attempt.
In BC, there is a separate cause of action – the tort (a wrongful act) of abuse of process – if one party commits the following elements in their litigation (see paras. 5-6 in Oei v. Hui, 2020 BCCA 214):
- To start a litigation for an improper purpose;
- Committing an overt act to advance that improper purpose; and
- Causing damages as a result of the wrongful use of the court process.
This type of abuse is different than a re-litigation attempt, as the abusive party, having an ulterior and extraneous motive (paras. 9 and 64 in Oei v. Hui, 2020 BCCA 214), is using litigation in court as coercive tool to achieve an objective that the court process (such as an injunction, a charge on land etc.) does not allow.
Instead, the abuse is an attempt to gain advantage by coercing the other party, or blackmailing them: it involves the notion that the proceedings were “merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate.” (para. 26 in Oei v. Hui, 2020 BCCA 214)
What is an Improper Purpose?
At paras. 29 and 63, Justice Saunders in Oei v. Hui, 2020 BCCA 214 cited the example (D.K. Investments Ltd. v. S.W.S. Investments Ltd., 1984 CanLII 398) to show how the court process was used as a stalking horse to disguise the plaintiff’s real intentions:
- The plaintiff and defendant signed an agreement of purchase and sale on a piece of land
- The plaintiff did not want to go through with the agreed purchase and sale, yet the plaintiff filed a claim for specific performance and filed a caveat (a certificate of pending litigation) on the defendant’s land
- The plaintiff’s intention was to use the caveat (CPL) to “coerce the defendant to sell at a lower price than that bargained for, or to obtain for the plaintiff … benefits which the plaintiff could not otherwise obtain”
It is important to note that merely pointing out to a false claim is insufficient to establish the tort of abuse of process (paras. 34-35 in Oei v. Hui, 2020 BCCA 214), despite that advancing false claims is against the ethical rules of the legal profession.
To satisfy the test of the tort, the plaintiff must have committed an overt act.
What is an Over Act?
An overt act to abuse the court’s process is a matter of finding the necessary facts. In D.K. Investments Ltd. v. S.W.S. Investments Ltd., 1984 CanLII 398 for instance, the principal of D.K. admitted at trial that their intention was in fact to put pressure on a third party related to the defendant for a purpose outside of the litigation.
There can be a variety of real-life examples. For instance, in a land development litigation, one party claims the agreement to be invalid as it contained conditions precedent that had not yet been met, while their motive was to bargain on the sale price and completion timelines. No overt act, or threats outside the court proceeding occurred, the tort requirements for an abuse of process are therefore not met.
The key is the emphasis on the extraneous over act, as Justice Saunders put “…there must be some overt act or threat, distinct from the proceedings themselves.” (paras. 13 and 67 in Oei v. Hui, 2020 BCCA 214); merely the economic pressure put on the defendants incidental to the litigation does not meet the overt act requirement.
Damages
Monetary damages will be awarded if the improper purpose and overt act elements of the tort of abuse of process are met (see 601 Main Partnership v. Centura Building Systems (2013) Ltd., 2024 BCCA 76 and Ibrahim v Allibhai, 2024 BCSC 955) – the logic is simple: as any other intentional torts, the tortfeasor party meant to use litigation as disguise to achieve an ulterior motive through an overt act, who intentionally cause the wronged party economic damages; the court, when correcting that wrong, will make the tortfeasor pay for those damages caused.
Contact Roland Luo in Vancouver for Advice on Abuse of Court Process
Those who abuse the court’s process know that their conduct to be wrongful, but they either wilfully ignore the law, or try to cover the tracks of their stalking horses, often their conduct manifest both. To call these stalking horses out requires experience and expertise. When you face a litigation which is in fact an abuse of the court’s process, and you are considering a counterclaim, contact Roland Luo.
Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada, and the United States. To schedule a confidential consultation, contact us online or by phone at 604-800-4628.