Civil procedure

Abuse of Process Doctrines

Doctrines of Abuse of Process

1. 
   Action Estoppel -above
   
2. 
   Issue Estoppel - above
   
3. 
   Collateral Attack*
   
4. 
   Action* – action can be dismissed by a judge, anytime where they feel that a court has been misused (ex: if someone is strictly bringing litigation to bother someone)
   

OVERVIEW

• 
  Abuse of process doctrines simply arises in a case-by-case circumstance
  
• 
  Linked to inherent jurisdiction of courts, more expansive & flexibility than Res Judicata
  
  • 
    Can strike out frivolous claims and hold people for contempt of court
    
• 
  Used to prevent misuse of court procedures, processes and resources in a way that could bring the administration of justice into disrepute
  
• 
  Established where:
  
  • 
    Proceedings are oppressive or vexatious
    
  • 
    Conduct serves to violate the principles of fundamental justice
    

Ex - by impairing the fair and just trial process and proper administration of justice

• 
  Designed to uphold the honour of the court as well as the opinion of people in society as a whole.
  

• 
  No strict tests to satisfy, greater discretion and flexibility than Res Judicata
  
  • 
    Can even be used to strike out claims beyond the parameters of Res Judicata
    
  • 
    Can be used to punish inconsistent or misleading pleadings.
    
• 
  Purpose - The judicial system uses abuse of process and res judicata to protect the integrity of the adjudicative function of the court.
  

EXCEPTION

“Re-litigation may enhance judicial system and may be permissible IF:”

1. 
   First proceeding tainted by fraud or dishonesty
   
2. 
   Fresh new evidence conclusively impeaches original results
   
3. 
   Or when fairness dictates that original result should not be binding in new context
   

Collateral Attack

Collateral Attack – Distinction b/w JR & Civil Litigation  A party cannot seek a remedy statutorily provided for by JR, through civil proceedings

• 
  When one chooses to sue someone instead of going through the admin route that is prescribed the statute, it is an evasion of JR = collateral attack
  
• 
  The legislature clearly intends to confer jurisdiction on an appeal tribunal to hear and determine certain matters, so the Court lacks the jurisdiction to do so.
  
  • 
    Distinguished from fairness issue – Penner v Niagara
    

• 
  You cannot attack a conviction in one forum by pursuing the same argument in another. You cannot seek to overturn a judgment made in one forum by having it discredited in another.
  
  • 
    If you want to overturn a decision, you must appeal it in the same forum. Direct attacks on the other forum to try and show its incompetence are not permitted.
    

Stewart v Clark

[A party cannot seek remedy statutorily provided for by JR through civil proceedings = it may amount to abuse of process  collateral attack]

FACTS

• 
  S claimed that the Superintendent of Pensions of BC acted unlawfully in failing to distribute pension funds in accordance with the pension plan, causing him and others to lose money.
  
• 
  The chambers judge dismissed it as an abuse of process for trying to mount a collateral attack on a statutory decision that could only be challenged by judicial review, not by suing Clark Directly.
  

RULE

When an actor makes a statutory decision, their decision must be challenged by judicial review and attempts to attack it otherwise may amount to abuse of process (barring a private tort)

ANALYSIS

S did not go through the correct procedure set out by legislature. Should have gone thru JR.

• 
  Unless there’s bad faith or overriding issues, if the member of an administrative tribunal makes a decision you don’t like, you cannot sue him personally
  

HOLDING

Appeal dismissed. Claim was not inconsistent, but his action was collateral attack on the superintendent’s decision.

5. Initiating the Civil Process & Drafting Pleadings

Topics:

Pleadings & Amending Pleadings

How to Name Parties

Notice of Civil Claim

Service

Renewal of Civil Claim + Response to civil claim

Counterclaim and Set-off

Third Parties

Contribution and Indemnity
Cases:

Halvorson v BC (Medical Services Commission)

BC v Imperial Tobacco

Strata Plan LMs 1751 v Scott Management

CBA v BC

Hanson v Sharma

Commencing Proceedings

*REFER TO PART 2 OF FRAMEWORK FOR STEPS ON COMMENCING PROCEEDINGS*
ROADMAP

1. 
   Notice of Civil Claim is the default manner to begin proceeding  Rule 2-1 (1)
   
2. 
   Draft pleadings: To start proceeding, a person must file NoCC  Rule 3-1 (1)
   

 NoCC must contain the following  Rule 3-1 (2) and comply with Rule 3-7 on pleadings generally

3. 
   P serves the pleadings on D  Rule 4
   

• 
  Particulars: Have sufficient particulars been provided? Rule 3-7 (18-24)
  
• 
  Renewal: Has the noticed of civil claim gone for 12 months w/o being served? Rule 3-2
  
• 
  Amending Pleadings: Are there any issues with the pleadings? Do they need to be amended?
  

 Rule 6-1. See also Hanson v Sharma

4. 
   D responds to pleadings  Rule 3-3
   

• 
  Counterclaim: Has D decide to sue P for a related cause of action? Rule 3-4
  
• 
  Third Party Claims: Has D decided to sue someone not involved in the action, or another D? Rule 3-5
  
  • 
    Contribution or Indemnity Claims: Did other D or non-parties cause or contribute? Rule 21-9
    

See also Strata P v Scott Mgmt

• 
  Reply: If D raised something new in their response that P couldn't deal with the first time around, P can file another pleading called “reply” Rule 3-6
  

5. 
   Has the D failed to respond? Consider Default Judgment  Rule 3-8
   

RULE 2-1 – Choosing the Correct Form of Proceeding

p.4

(1) Commencing proceedings by notice of civil claim

Makes the Notice of Civil Claim the DEFAULT manner to begin a proceeding. It should be unless the criteria of Rule 2-1 (2) are met.

(2) Commencing proceedings by petition or requisition

A petition may be used where the sole question is of an enactment of a document (like a will) or a rule or particular statute will specify where someone wanting relief have to proceed by a petition. Petition is not actually a pleading.

• 
  Generally in a petition, facts are laid out. No live witnesses.
  
• 
  Petition meant to be efficient, and far simpler litigation tool
  

• 
  PROCEEDINGS STARTED BY FILING A NOCC
  

Rule 3-1 — Notice of civil claim

p.5

Notice of Civil Claim

(1) To start a proceeding under this Part, a person must file a notice of civil claim in Form 1.

Content of Notice of Claim

(2) A notice of civil claim must do the following:

Rule 3-2 – Serving & Renewing a Notice of Claim

p.5

Rule 3-4 – Counter-claim

p.6 Arises when D has been sued by P for a cause of action, but the D decides to sue P for a diff but related cause of action.

Rule 3-5 – Third Party Claims

p.7

Third Party Claim is, D suing someone that is not involved in the action at all OR in BC, if one D sues another D (In other prov it’s called: cross-claim)

• 
  So if you’ve been sued, and you feel that it’s another person that’s at fault you can sue that person through the 3^rd party claim
  

Rule 3-6 - Reply

p.9

P makes the allegations, D responds. If D raises anything new that P couldn't deal with the first time around, P can put in another pleading called a “reply”. But it has to pertain specifically to something that couldn't be addressed in the initial notice of claim.

Rule 3 -7 Pleadings Generally

Basically a “how to guide” on how to plead a case: