August 29, 2019 – Abuse of Process

“Further, the appellants too narrowly construe the doctrine of abuse of process. This doctrine is flexible and unencumbered by the specific requirements of res judicata or issue estoppel: Behn v. Moulton Contracting Ltd.2013 SCC 26 (CanLII)[2013] 2 S.C.R. 227, at para 40Toronto (City) v. C.U.P.E., Local 792003 SCC 63 (CanLII)[2002] 3 S.C.R. 77, at para. 42. Where a precondition for issue estoppel has not been met, such as mutuality of parties, courts have turned to the doctrine of abuse of process to preclude re-litigation of the same issue: C.U.P.E., at para. 37. While the doctrine is similar to issue estoppel in that it can bar litigation of legal and factual issues “that are necessarily bound up with the determination of” an issue in the prior proceeding, abuse of process also applies where issues “could have been determined”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII)[2001] 2 S.C.R. 460, at para. 54Aba-Alkhail v. University of Ottawa2013 ONCA 633 (CanLII)363 D.L.R. (4th) 470, at para. 13McQuillan v. Native Inter-Tribal Housing Co-Operative Inc. (1998), 1998 CanLII 6408 (ON CA)42 O.R. (3d) 46 (C.A.), at pp. 50 – 51. As such, the doctrine of abuse of process is broader than res judicata and issue estoppel and applies to bar litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37.”

Winter v. Sherman Estate, 2018 ONCA 703 (CanLII) at 7