Documentation:Torts/Abuse of process

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Abuse of process

The abuse of process tort arises in situations where a defendant initiates legal proceedings against the plaintiff to achieve a purpose that is collateral and extraneous to the legal suit.[1] A defendant who advances a false claim with malicious motives will not be held liable under the abuse of process tort, but may be liable for procedural abuse of process.[2][3] Canadian authorities require the defendant to take a positive action outside the ambit of the legal proceedings, and in furtherance of an improper purpose, to be held liable for tortious abuse of process.[4] Importantly, the tort has historically been afforded a narrow scope due to extant policy concerns surrounding the tort and its role in the common law.[5]

The abuse of process tort

One black stick figures shouting at another hunched-over black stick figure.
The abuse of process tort exposes litigants to liability for using the legal process to achieve a collateral purpose extraneous to the object of the lawsuit.[1]

Origins within the common law

The abuse of process tort was recognized in the 1883 judgement, Grainger v. Hill, where a mortgagee brought a lawsuit against a mortgagor for the primary purpose of coercing them to turning over a ship's register.[6][7][8] Unlike the malicious prosecution tort, the abuse of process tort does not require a plaintiff to demonstrate that the legal proceedings were determined in their favour or were not based soundly in law.[7][9]

Elements of tortious abuse of process

Elements of tortious abuse of process[7][10][11]
1. The defendant must have used the legal process (whether with or without reasonable and probable cause, the viability of [their] case being irrelevant);
2. [They] must have done so for a purpose other than that which the process in question was designed to serve, that is, for a collateral and illicit purpose;
3. [They] must have done some definite act or made some definite threat in furtherance of the purpose; and
4. Some measure of special damage must be shown.
Institution of a legal process

A prerequisite for an action under the abuse of process tort is that the defendant has initiated a legal process against the plaintiff.[10][12] An abuse of process action is only available against the party initiating the legal process and not other parties involved in the litigation, including their legal representatives.[13]

Somewhat controversially, some abuse of process actions have been based off a defendant's improper defence of an action, rather than the initiation of a legal action in and of itself.[13][14] Treating an improper defence as satisfying this element of the abuse of process tort is controversial because it does not obviously meet the "overt act" requirement, discussed further below.[14]

Improper purpose

The defendant must be motivated by an improper purpose in order for their conduct to be actionable under the abuse of process tort.[10][15] This purpose must be the dominant objective of the lawsuit, as a defendant will not be liable simply for pursuing a legal process even with bad intentions.[2][12][16][17] Further, a defendant advancing a knowingly false claim, with wrongful motives, is not in itself sufficient to ground a claim under the abuse of process tort, as knowing falsity, by itself, is not a “purpose” as required for the tort.[3]

The improper purpose must be collateral and entirely discrete from the purpose of which the proceedings were designed to serve, meaning that any financial loss, invasion of privacy, humiliation, or damage to reputation naturally resulting from the litigation will be insufficient to satisfy the "improper purpose" element.[16][18] Therefore, some legitimate basis for an action makes proving an improper purpose difficult solely on the grounds that a natural by-product of the litigation would be elimination of a competitior.[5][19] Put another way, the improper purpose, "must be one not reasonably related to the subject matter of the litigation and but for which the defendant would not have commenced the proceedings."[20]

Action taken in furtherance of the improper purpose

Perhaps the most contentious requirement of the abuse of process tort is the requirement that a plaintiff must show that the defendant took some overt action or made a definite threat to further their improper purpose.[10][21] Almost all Canadian courts have long affirmed the importance of this element to the abuse of process tort, though it has been questioned in British Columbia.[22][23] The British Columbia Court of Appeal, in the 2009 Smith v. Rusk judgement, summarized the state of the Province's jurisprudence on the abuse of process tort and described the necessity of the "overt action" requirement to the cause of action as "uncertain".[24] However, the British Columbia Court of Appeal clarified, in the 2020 Oei v. Hui judgment, that the "overt act" element is required as part of the abuse of process tort in British Columbia.[25] The Court explained that any previous deviation from this element was unprincipled and based on "shaky ground".[25]

Regarding the importance of this element to the abuse of process tort, the Ontario Superior Court in Teledata Communications Inc. v. Westburne Industrial Enterprises Ltd. stated that:[26][27]

[T]he bringing of an action, even if factually groundless, together with wrongful motives for bringing the action, are not sufficient to constitute the tort of abuse of process. What lies at the heart of the cause of action is an act, or threat of an act, outside the ambit of the action.

An overt act by the defendant is crucial to this cause of action, because there is no liability when the defendant merely employs regular legal process to its proper conclusion, regardless of their intentions.[28] As discussed above, the natural consequences of litigation alone, such as harm to the plaintiff's reputation, are insufficient to ground a claim under the abuse of process tort without an additional overt action taken by the defendant outside the ambit of the litigation.[16][18][29] As such, an abuse of process action generally cannot be extended to sue over a counterclaim arising out of the action itself, as an overt action is required outside of the main action.[30][31]

Special damage

Finally, a plaintiff in an abuse of process action must demonstrate that they suffered some form of special damage.[10] The plaintiff must demonstrate that they suffered an identifiable monetary loss as a result of the abuse of process.[32] Once special damage is proven, a court has discretion to award other forms of damages, such as general compensatory damages.[32]

Unlike the tort of malicious prosecution, special damages must be pleaded in the context of an abuse of process claim, as this element serves as a robust factor limiting the availability of the action.[32] The categories of recoverable damage under the abuse of process tort are much more narrow compared to the tort of malicious prosecution, which has been critiqued by academic commentators considering that the torts bear similarities in practice and origin.[33]

Differences between tortious and procedural abuse of process

In the news
Suspended Vancouver lawyer's lawsuit dismissed as abuse of process
Brown wooden gavel with gold accents on a white backdrop.
Vancouver lawyer, Naomi Arbabi, had her trespass claim against her neighbour struck as an abuse of process due to being frivolous and vexatious.[34] Her neighbour was awarded costs for this procedural abuse of the judicial process.[35] To learn more about Arbabi's bizarre case, read this CBC article.[36]

Procedural abuse of process

Separate from the abuse of process tort, Canadian courts also recognize procedural abuses of process, which are afforded different remedies than tort.[37] Procedural abuse of process is less onerous to prove compared to the tort, as it does not require the plaintiff to establish the "improper purpose", "overt act", and "special damages" elements discussed above [37]

Differences in uses

Academic commentators have justified the existence of a separate tort for abuse of process because the tort is employed in different circumstances than the procedural remedy.[38] While the procedural remedy is often employed to halt the legal proceedings, the tort is generally engaged in circumstances where the utility of staying the legal proceedings has passed.[38] Thus, the tort affords plaintiffs more adequate redress where the legal proceedings have run their course and damage has already been done.[38]

Remedies

The primary remedy for tortious abuse of process is damages, which are not available for procedural abuse of process.[37][38] A finding of procedural abuse of process may lead to a stay of proceedings, a striking of pleadings, or costs awarded to the plaintiff.[37][38]

Policy concerns surrounding the abuse of process tort

Competing policy concerns

The abuse of process tort stands between fundamental, competing values within the common law system.[39] Proponents of the tort recognize that it serves an important penal purpose that deters litigants from abusing the legal process, thereby acting as a safeguard.[40] The tort has also been endorsed for its ability to provide adequate redress to claimants when a stay of proceedings or the award of costs would not suffice to remedy the harm.[38] However, academic commentators and judges have scrutinized the tort's place within the common law since its existence may deter litigants from vindiciating their rights through legal action due to fear of liability for an abuse of process.[5][41] Additionally, the judiciary and academic commentators alike have recognized that the existence of this tort may foster long and drawn out litigation due to the opportunity it creates for re-litigation.[5][42][43]

The balance struck by Canadian courts

The British Columbia Court of Appeal, in Oei v. Hui, stated that the availability of the abuse of process tort is intentionally narrow so as to foreclose a flood of litigation where "one failed action begets another action, which may beget another action, and so on."[44] Nordheimer J, commenting on this narrow scope in WestJet Airlines Ltd. v. Air Canada, stated:[5]

I earlier noted the narrow scope of this particular tort. There are two matters of concern that argue strongly in favour of maintaining that narrow scope. One is the prospect that, if such claims are too easily advanced, it may lead to a proliferation of litigation with every action between competitors being met in response by an abuse of process action by the defendant competitor. It would, after all, be relatively easy for many defendants to allege that they are being sued for a purpose other than what is reflected in the statement of claim. Indeed, this concern need not necessarily be restricted just to actions between competitors. The other concern is the potential chilling effect on parties from having resort to the courts for the resolution of actual or perceived wrongs if they must fear routinely being subject to such claims with the attendant costs as well as the prospect, however remote, of damages being awarded. While I accept that the court must be vigilant in ensuring that its process is not misused, at the same time the court must not readily allow claims to be advanced that may only serve to impede access to its process.

Commentators have explained the importance of the "overt act" element in keeping the scope of the abuse of process tort narrow and maintaining the balance between extant competing policy concerns surrounding the tort.[23] The Ontario Superior Court, in Atland Containers Ltd. v. Macs Corp. Ltd., recognized that if the tort were cabined by the improper purpose element alone, every plaintiff may have a claim for tortious abuse of process.[31] On the importance of the role of the "overt act" element in maintaining the narrow scope of the tort, Professor John Irvine stated that:[45]

[Without it] the Courts will find themselves driven to make impossible or indefensible distinctions between different 'kinds' of bad motive; 'bad motives like personal spite, vindictiveness, greed or just the schadenfreude of an adversary's discomfiture, motives which can engender no tort; and motives more obviously extraneous (such as blackmail) which conjure up the tort of abuse of process. That way, I would suggest, madness lies. The orthodox requirement of some overt act, extraneous to the litigation or process itself, must be firmly insisted upon.

Discussion questions

  • Does the existence of the abuse of process inherently deter claimants from vindicating their legal rights?
  • What differences exist between procedural abuse of process and tortious abuse of process?
  • What important role does the "overt act" element play in keeping the scope of the abuse of process tort narrow?


  1. ↑ 1.0 1.1 Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 77.
  2. ↑ 2.0 2.1 Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 78, citing Poulos v. Matovic (1989), 47 CCLT 207 (ONHC).
  3. ↑ 3.0 3.1 Oei v. Hui, 2020 BCCA 214 at paras 34, 37.
  4. ↑ Oei v. Hui, 2020 BCCA 214 at para 79.
  5. ↑ 5.0 5.1 5.2 5.3 5.4 WestJet Airlines Ltd. v. Air Canada, [2005] OJ 2310 at para 23.
  6. ↑ Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 77, citing Grainger v. Hill (1838), 132 ER 769 (Eng CP).
  7. ↑ 7.0 7.1 7.2 Irvine, John (1989). "The Resurrection of tortious Abuse of Process". Canadian Cases L Torts. 47: 217.
  8. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 193.
  9. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 197.
  10. ↑ 10.0 10.1 10.2 10.3 10.4 Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 75.
  11. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 193–194.
  12. ↑ 12.0 12.1 Oei v. Hui, 2020 BCCA 214 at para 5.
  13. ↑ 13.0 13.1 Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44 (2): 734.
  14. ↑ 14.0 14.1 Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 196-197.
  15. ↑ Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 78.
  16. ↑ 16.0 16.1 16.2 Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 735.
  17. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 198.
  18. ↑ 18.0 18.1 Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 199, 203.
  19. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 199.
  20. ↑ Oei v. Hui, 2020 BCCA 214 at para 26.
  21. ↑ Oei v. Hui, 2020 BCCA 214 at para 10.
  22. ↑ Oei v. Hui, 2020 BCCA 214 at para 77.
  23. ↑ 23.0 23.1 Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 205.
  24. ↑ Oei v. Hui, 2020 BCCA 214 at para 10, citing Smith v. Rusk, 2009 BCCA 96 at para 34.
  25. ↑ 25.0 25.1 Oei v. Hui, 2020 BCCA 214 at para 79.
  26. ↑ Teledata Communications Inc. v. Westburne Industrial Enterprises Ltd., 1990 CanLII 6887 (ONSC).
  27. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 201.
  28. ↑ Beckingham v. Sparrow (1977), 2 CCLT 214 (ONHC) at 217.
  29. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 204.
  30. ↑ Perrell, Paul (2007). "Tort Claims for Abuse of Process". Advocates Quarterly. 33 (7): 205–206.
  31. ↑ 31.0 31.1 Atland Containers Ltd. v. Macs Corp. Ltd., 1974 CanLII 864 (ONSC) at 111.
  32. ↑ 32.0 32.1 32.2 Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 743.
  33. ↑ Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 743–744.
  34. ↑ Arbabi v. McLelland, 2024 BCSC 91 at para 32.
  35. ↑ Arbabi v. McLelland, 2024 BCSC 91 at paras 34–36.
  36. ↑ Lindsay, Bethany (19 Jan 2024). "Suspended Vancouver lawyer's lawsuit dismissed as abuse of process with pseudolegal hallmarks". CBC.
  37. ↑ 37.0 37.1 37.2 37.3 Oei v. Hui, 2020 BCCA 214 at para 7.
  38. ↑ 38.0 38.1 38.2 38.3 38.4 38.5 Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 719.
  39. ↑ Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 719–732.
  40. ↑ Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 724.
  41. ↑ Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 730–731.
  42. ↑ Hynard, Emerson; Lerch, Aiden (2021). "The Tort of Collateral Abuse of Process". U New South Wales LJ. 44(2): 732.
  43. ↑ Jacobson v. Skurka, 2015 ONSC 1699 (§10.9.1) at para 90.
  44. ↑ Oei v. Hui, 2020 BCCA 214 at para 36.
  45. ↑ Irvine, John (1989). "The Resurrection of tortious Abuse of Process". Canadian Cases L Torts. 47: 225.
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