Misuse or Abuse of Process Involves Legal Proceedings Initiated Improperly For An Ingenuine PurposePage last modified: January 31 2023
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Can a Legal Process Be Used to Cause Distraction and to Gain Advantage In Other Proceedings?
Initiating a Legal Process For a Purpose Other Than the Intent of the Process Is a Wrongful and Tortious Act and Akin to Malicious Prosecution. Unlike Malicious Prosecution the Wrongfully Initiated Process May Hold Merit; However, the Use of the Process For Ulterior Purpose Remains Tortious.
Understanding the Tort of Abuse of Process Involving Proceedings Initiated For An Improper Collateral Purpose
Legal processes are sometimes illicitly used for a purpose other than the genuine purpose for which the legal process was designed and intended such as the use of criminal prosecution or regulatory complaints as a means of causing hardship or oppression or even for the purpose of gaining an advantage within other legal proceedings.
What constitutes as a tortious abuse of process, which is also sometimes referred to misuse of process, was explained within, among others, the cases of Konstan v. Berkovits, 2023 ONSC 497, Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, and Neff v. Patry, 2008 BCSC 163, wherein each it was respectively said:
 The tort of abuse of process has four elements. As held by the Court of Appeal for Ontario in Harris v. Glaxosmithkline Inc. et al., 2010 ONCA 872 (CanLII) at paras. 27-28, those four elements are as follows:
(i) the plaintiff is a party to a legal process initiated by the defendant;
(ii) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;
(iii) the defendant took or made a definite act or threat in furtherance of the improper purpose; and
(iv) some measure of special damage resulted.
 The essence of the tort of abuse of process is the use of legal process to achieve a collateral objective that the legal process itself would not confer. Subsequent jurisprudence has consistently held that the scope of the tort of abuse of process is a narrow one, and a defendant must have a clear, ulterior purpose in wrongfully initiating a legal process. Bad intentions may prove to be insufficient.
 At para. 48 of his reasons, the motion judge defined the constituent elements of the tort of abuse of process as follows:
The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted ...
 The tort of abuse of process is more often found in civil than in criminal context. The elements are that:
(a) the defendant must have used the legal process for a purpose other than it was designed to serve, in other words for a collateral or illicit purpose,
(b) the defendant must also have done some definite act or made some definite threat in furtherance of the improper purpose; and
(c) some measure of damages must be shown.
 In Guilford Industries Ltd. v. Hankinson Management Services Ltd. (1973), 1973 CanLII 1065 (BC SC), 40 D. L. R. (3d) 398,  1 W.W.R. 141 (B.C.S.C.), Mr. Justice Anderson refers at ¶26 to Fleming on Torts to illustrate the essential difference of the tort of abuse of process from the tort of malicious prosecution.
… Quite distinct, however, are cases where a legal process, not itself devoid of foundation, has been perverted to accomplish some extraneous purpose, such as extortion or oppression. Here an action will lie at the suit of the injured party for what has come to be called abuse of process.
Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to serve. (Rest. S 682.) 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', (Varawa v. Howard Smith (1911) 13 C.L.R. 35, 91 (Isaacs J.)) and it is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator. The improper purpose is the gravamen of liability.
The tort of misuse of process at first glance may seem equivalent to the tort of malicious prosecution; however, there are key differences; for example, in misuse of process the proceeding may involve some genuine substance and the proceeding allegedly initiated as an abuse may have some teeth and therefore be founded or partially founded which is contrary to the malicious prosecution tort in which the commenced matter culminate in full favour of the accused. With misuse of process the allegations giving rise to an improperly motivated proceeding may culminate against the accused; McTaggart v. Ontario, 1991 CanLII 8313;
 Fleming, op. cit, at p. 589 distinguishes the tort of abuse of process from malicious prosecution as follows:
Quite distinct, however, are cases where a legal process not itself devoid of foundation has been perverted to serve some extraneous purpose such as extortion or oppression. ... Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained for any purpose other than that which it was designed to serve.
Commence Without Awaiting Conclusion
Additionally, litigation alleging the tort of misuse of process may begin prior to the end of the proceedings to which the misuse of process allegations relate; and accordingly, even before a determination of whether the allegations within the misused process are deemed founded or otherwise. This possibility, and perhaps even necessity, to commence misuse of process litigation before the conclusion of the misused process was explained in A.M. v. Matthews, 2003 ABQB 942, where it was said:
 In order to make a claim for abuse of process it is not necessary to prove that the proceedings to which it relates have been concluded.
 It will be noted from this outline that while the tort of malicious prosecution cannot arise until after the predicate action is concluded, there is no such requirement in relation to the tort of abuse of process. It will also be noted that what has been described as the second element of the tort of abuse of process may not be an element of the tort so much as a reminder that proof of the oblique motive will presumably not be made out without evidence of some overt threat, since the motives which underlie a lawsuit are not, themselves, actionable.
In certain circumstances, such as where discovery of the misuse of process arises well before conclusion of the misused process, it may be crucially necessary to commence an action for the tort of misuse of process before the misused process is concluded due to the running of a limitation period, among other things. Legal strategy will assist in determining whether misuse of process litigation out to being, or await, the conclusion of the misused process. Per Neff, while citing Guilford, as well as the McTaggart, it is possible that while the misused process may have some merit and the illicitly brought process may proceed according to that merit, the tortiousness arises separately. Simply stated, while the illicitly brought process may have some teeth and actually be prosecuted, unlike a malicious prosecution case which must conclude as well as conclude fully in favour of the accused, the tort of misuse of process arises even if the allegations within the misused process bear some meat; however, it is the separate and collateral purpose for which the misused process was initiated that gives rise to the separate tortiousness of the misused of process. Essentially, when a process is initiated, the process must be used for the genuine purpose of the process itself, and if the process was initiated for an ulterior purpose, something outside of, and beyond, the pursuit of the natural outcome for which the process actually exists in law, then the process itself is being misused regardless of whether there is some foundation to the allegations.
Judges and adjudicators have an inherent jurisdiction to protect the administration of justice from falling into disrepute which includes a discretion, and practically a requirement, to act as gatekeepers that assist in ensuring legal processes are accessed and used genuinely for the purpose in which the legal process was intended rather than for an improper collateral purpose. An improper collateral purpose could be to gain a tactical advantage in another legal proceeding or even the weaponizing of legal process as a means to cause strife and harm rather than to right a wrong. Interestingly, even where a wrong occurred and a legal process is the appropriate legal process for addressing the wrong that occurred, if the motive for accessing the legal process was an illicit collateral purpose, an abuse of process is said to occur. In this way it can be said that a misuse of process occurs despite that, but for the illicit collateral purpose, the proceeding may, and perhaps does, have legal merit.
The duty upon judges to ensure that legal processes are used as intended rather than as an abuse tool was stated within the case of Williams v. Tuck, 2022 ONSC 4464 where it was said:
 Judges have an inherent and residual jurisdiction to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R v. Power, 1994 CanLII 126 (SCC),  1 S.C.R. 601 at p. 616).
 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: see Toronto (City) v. CUPE, 2003 SCC 63 (CanLII),  3 S.C.R. 77, at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.), at para. 55.
 The Supreme Court of Canada has stated in R v. Scott, 1990 CanLII 27 (SCC),  3 S.C.R. 979, at p. 1007, that abuse of process may be established where the proceedings are vexatious or oppressive and violate the fundamental principles of justice underlying the community’s sense of fair play.
While the tort of malicious prosecution may be more well known and more frequent, the tort of misuse of process appears less onerous to prove in certain circumstances. So long as the accused can demonstrate that the purpose of commencing a procedure was for a collateral ulterior purpose rather than the genuine purpose of the procedure, an action in misuse of process may succeed.