Tort Claims for Abuse of Process
![handle is hein.journals/aqrty33 and id is 237 raw text is: TORT CLAIMS FOR ABUSE OF PROCESS
Paul Perell *
So long as it is not the predominant purpose, it may be quite proper
for a litigant to bring a lawsuit for spite and for the purpose of making
his or her opponent silent, miserable, weak or incapable. However,
there is a tort, known as the tort of abuse of process, that exposes a
litigant to liability for damages if he or she abuses the process of the
law by using it to extort property or to achieve a collateral purpose
outside the ambit of his or her lawsuit.1 The tort was recognized in
1883 in Grainger v. Hill,2 where a mortgagee of an ocean vessel sued to
enforce the mortgage debt. The mortgagee's lawsuit was brought to
coerce the mortgagor to turn over the ship's register, which the
mortgagee wished to have because of concerns about the value of the
security for the loan.3 The mortgagee was liable for abusing the
process of the law to achieve this improper purpose, which was
extraneous to the enforcement of the mortgage.
There are four elements to the tort of abuse of process:4 (1) the
plaintiff is or was the subject of a lawsuit initiated by the defendant;
(2) the defendant's predominant purpose in initiating the lawsuit
was to further some improper purpose collateral or outside the
ambit of the legal process; (3) the defendant performed a definite act
or threat in furtherance of that improper purpose; and (4) the
* Judge, Superior Court of Justice, Ontario.
1. J. Irvine, The Resurrection of Tortious Abuse of Process (1989), 47
C.C.L.T. 217; G.H.L. Fridman, Abuse of Legal Process (1964), 114 L.J.
335.
2. (1838), 4 Bing. N.C. 212, 132 E.R. 769.
3. The tort was recognized but not established in Cotterell v. Jones (1851), 11
C.B. 713 at p. 726; Gilding v. Eyre (1861), 10 C.B. (N.S.) 592 at p. 598; Parton
v. Hill (1864), 10 L.T. 414 at p. 415; Varawa v. Howard Smith Co. (1911), 13
C.L.R. 35 at p. 91. The tort was mentioned by Middelton J. in Blanchard v.
Jacobi, [1918] O.J. No. 149 (QL), 43 O.L.R. 442.
4. Metropolitan Separate School Board v. Taylor (1994), 21 C.C.L.T. (2d) 316
(Ont. Ct. (Gen. Div.)); Scintilore Explorations Ltd. v. Larche, [1999] O.J. No.
2847 (QL), 48 B.L.R. (2d) 248 (S.C.J.); BMO Nesbitt Burns Inc. v. Wellington
West Capital Inc., [2004] O.J. No. 4194 (QL), 35 C.C.E.L. (3d) 82 (S.C.J.),
vard 257 D.L.R. (4th) 122, 77 O.R. (3d) 161, 201 O.A.C. 394 (C.A.); Roeder
v. Lang Michener Lawrence & Shaw, [2005] B.C.J. No. 2830 (QL), 149
A.C.W.S. (3d) 21, 2005 BCSC 1784 (S.C.), affd 156 A.C.W.S. (3d) 320
(C.A.); National Bank Financial Ltd. v. Potter, [2006] N.S.J. No. 56 (QL), 145
A.C.W.S. (3d) 1010, 2006 NSSC 48 (S.C.).
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