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Abuse of Process

Posted On: January, 21 2015

In the recent decision, Power Tax Corporation v. Millar et al. (2013), 113 O.R. (3d) 502, 2013 ONSC 135, the Honourable Mr. Justice Goldstein of the Ontario Superior Court considered the doctrine of abuse of process in a case where there were two parallel proceedings addressing the same essential issue.  The concept of abuse of process describes a situation where the Court considers the actions of a party to be detrimental to the administration of justice.  The remedy is often that the party found to have engaged in abuse of process will see its claim stayed or dismissed.

Ms. Millar, a former employee of Power Tax Corporation, alleged in an application to the Human Rights Tribunal of Ontario that Power Tax Corporation had terminated her employment because she took her full entitlement to maternity leave.

The employer then filed an application in Superior Court, asking the Court to determine that Ms. Millar had been dismissed for valid business reasons.  As a result, there were two proceedings: the first one, commenced by Ms. Millar at the Human Rights Tribunal, and the second one commenced by Power Tax in Superior Court.  Both dealt with the termination of Ms. Millar’s employment, and the reasons for the dismissal.

The Court found that the application brought by the employer could only be viewed as a response to the human rights application, and as an attempt to do an end-run around the Human Rights Tribunal’s process.

In granting a stay of proceedings, the Court considered that the doctrine of abuse of process is usually invoked to prevent the re-litigation of an issue that has already been decided by the Court or another decision-maker.  The narrow question on this motion was whether abuse of process can be used pre-emptively where there has not yet been a decision on the merits, but there are two open cases at a preliminary stage.  The Court finds that the concept can be used in such cases:

[24]     In my view, the doctrine of abuse of process can apply to what Ms. Sayer characterizes as a pre-emptive collateral attack.  I see nothing in the cases that suggest that it is limited to the relitigation, although that is certainly the usual application.  The principles behind preventing relitigation include avoiding unfairness, multiple proceedings, and inconsistent results.

The Court found that the application was vexatious because it puts into the issue the very same matters which are properly before the Human Rights Tribunal, and that the application at the Human Rights Tribunal was filed first.  The Court also found that it would be unfair to force Ms. Millar to fight a “two-front war” just because the employer “doesn’t appear to like its chances of success before the HRTO.”

As this case illustrates, the decision about which forum to use in pursuit of one’s rights is an important one.  It is rarely the right decision to pursue an issue in multiple forums, so it is crucial to get legal advice when contemplating a claim or deciding which forum to utilize to address a legal issue.


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