Part 1 :Misuse of Legal Procedure

Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty. Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings or Abuse of Process.

Malicious Prosecution:

Malicious Prosecution is a tort much like Abuse of Process, which involves the initiation of a legal action without probable cause. The litigation filed, may either be criminal, or civil, and must be dismissed in favor of the defense. This is the key point of difference between Abuse of Process and Wrongful Civil proceedings. While Abuse of Process relates to the filing of claims or serving of documents without cause, it may not affect the outcome of the litigation at hand.  Abuse of Process may still be found even if the court finds in favor of the plaintiff's original claim, whereas Malicious Prosecution charges may only be pressed if the court or plaintiff terminates the lawsuit in favor of the defense.

Wrongful Civil Proceedings:

Wrongful Civil Proceedings are civil lawsuits filed without cause of action and merit, by the court. A person is guilty of Wrongful Civil Proceedings, if he or she acts negligently without cause of action to file a civil lawsuit.  Proper cause of action includes the use of court to find facts and render judgment for claims; anything outside of this purpose is considered violation of tort and a Wrongful Use of Civil Proceedings. Importantly, if civil proceedings are terminated in favor of the defendant, the defense may file a misuse of legal process claim to recover damages in a frivolous lawsuit.

Abuse of Process

Abuse of Process is an intentional tort of Misuse of Legal Procedure. Abuse of Process involves the knowing misuse of public access to courts. Tort law defines Abuse of Process as a misuse or perversion of the court procedure and due process without grounds for legal action. Process refers to the summons or subpoena from the court. This is a distinct allegation, as it specifically refers to the reports issued by the court and their proper use - it does not necessarily indicate frivolous litigation, though it may be part of a similar series of Misuses of Legal Procedure.

Part 2 :

Abuse of Legal Procedure

Consists of two Torts: (1) Malicious Prosecution (crim process) and (2) Abuse f Process (civil process)

Very narrowly defined … do not address “economic warfare” … the little guy get the boot once again!

Interests protected include:

Both torts are designed to protect against the improper use of the legal system Integrity of Criminal and Civil Justice Systems Taxpayer’s interest in effective justice Individual interest in not having to experience the cost, embarrassment, damage to reputation

and emotional distress of an unwarranted criminal charge or civil suit Really two competing interests: (Norman v. Soule)

efficient enforcement of criminal law desire to safeguard citizens from unnecessary harm to their security and reputation due

to baseless allegations These torts are narrowly defined and hard to establish, so not used frequently However, the countervailing policy is not to discourage individuals from assisting in the

enforcement of the criminal law or asserting rights through the civil courts

A. MALICIOUS PROSECUTIONWhat is a PROSECUTION?

must be criminal Begins when:

an “information” is PRESENTED to a judicial officer … doesn’t need a ‘process’ note that a j. at this stage is acting ADMINISTRATIVELY … no call re guilt etc … no issue of

credibility at this stage … legally important b/c any appeal from that is not on merits … ie rights of appeal are diminished ALWAYS: Information is accepted as disclosing an offense POSSIBLY: When Information is presented to a judicial officer

Basic Elements:

1. There must be a Prosecution (criminal matter) – a criminal process must have been actioned.2. The outcome in that criminal process must be terminated in favour of the .

3. Absence of Reasonable and Probable Cause. reasonable grounds information that would lead a reasonable person to suspect may

have committed a crime … just a suspicion probably grounds reasonable person would believe that if that information turns out to be

accurate, then it is more likely than not that is guilty … greater than suspicion note that these two things are indeed separate AND BOTH are required

4. Malice – improper purpose on part of prosecutor, not an honest belief in ’s guilt. some ulterior motive other than a desire to bring a person honestly believed to have

committed a crime to justice – whether or not that belief is reasonable. Not mere spite, ill will, desire for vengeance, or hatred. These provide evidence of malice

but are not malice per se. An absence of reasonable and probable grounds is not malice, but rather evidence of malice

… ie may be used to infer malice given other facts, but is not malicious per se. Problem with Concurrent Motives:

Must honest desire be the only, dominant, or sufficient motive? Can be more than one motive, doesn’t have to be dominant, sufficient at best All you need is one, concurrent, legitimate motive So anger, for example, is evidence of malice, but not enough, … if you can

show a decent concurrent motive you’re ok. Need not necessarily be the dominant motive, just sufficient … no real

authority on this issue. NOTE (again) the difference between evidence and malice … may draw inference of

malice from evidence …. Note: Damage is presumed (includes loss of reputation, embarrassment, legal costs) … this

is sometimes listed as a fifth required element. It is assumed that the suffered some loss or some harm.

Who may be sued?

Since Nelles v. Ontario, Prosecutors (AG and servants) are no longer immune, their immunity is now “qualified” & not “absolute.” Therefore, immunity may be lost if malice is proven.

PROCSECUTORS and AG’s not immune

POLICE OFFICERS not immune

EXPERT WITNESSES probably immune but open to challenge

ORDINARY WITNESSES immune

THE CROWN immune (s.5(6) of the Proceedings Against the

Crown Act (Nelles v. Ont.) … but you need to

prove malice.

Should tort of Malicious Prosecution be Abolished?

ARGUMENT FOR: Rarely used - <5 successful cases in Canada

Police, prosecutors and courts filter out bad cases

(test = more likely than not, beyond RD … high test quality control)

Law of defamation could handle these cases

Punishment for perjury is a sufficient deterrent

Private prosecutions can e ended by the crown

(public end to prosecution)

Hogarth: a good thing, protects citizens … a bit

of a deterent.

ARGUMENT AGAINST: System must have integrity - used rarely, but

good deterrent

Damage to falsely accused: to reputation,

embarrassment, emotional security, legal costs

Must keep control over cost of unnecessary

prosecutions

Casey v Automobiles Renault Canada 1965 S.C.C.

F stored cars for . sold 26 cars but did not pay for them, acknowledged problem and prepared to take steps to settle.

's filed “information” against for theft of cars; had sold cars but couldn’t pay $ to retail owners/'s; knowledge of the info/charge became public by 's mouth; 's later withdrew the information & admitted that they had done so maliciously to try to get certain amt of $

1. Was the filing of information (swearing before J of P) enough to allow to sue in malicious

prosecution?

2. Was there reasonable & probable grounds for the prosecution?

H TEST for Malicious Prosecution: Did suffer damages as a result of proceedings ?

note: test is not whether proceedings have reached stage of being called a 'prosecution'; ie. it is not necessary for JP to have issued 'process' (ie. summons or warrant) but calling police & alleging maliciously is not enough; must have an arrest or laying of info.

Yes - filing info/swearing with J of P enough to allow suit of malicious prosecution

No - must have reasonable & probable grounds for laying charge - none here.

R: Basic elements of Malicious Prosecution

Once the law has been knowingly, but wrongfully set into motion via an arrest or information, damages are recoverable if can prove damages resulted from the malice of the .

Good case for basic elements of the tort Prosecution commences when information sworn before justice of the peace Not necessary for JP to issue “process” (summons or warrant as understood in criminal law) In tort law, prosecution commences when the information is sworn before a J.P. has done all

he can to commence prosecution. In criminal, prosecution begins when J.P. issues a summons or warrant

On the other hand, wrong to assume that at moment person calls police and alleges a crime, that criminal prosecution has commenced. – Malicious prosecution only when arrest or an information laid

Watters v Pacific Delivery Service 1964 BCCA

F widow gave chq to beer delivery person (1) who couldn't cash it b/c widow erred; she gave a corrected chq to 1 but he went to police; 1 told police widow wouldn't do anything about bad chq (ie. lied); police detective ( had chq examined & found to match sig of thief/prostitute by same name; filed info with J of P, issued warrant & arrested; Charge dismissed at hearing b/c prosecution had no evidence; widow brought action for false arrest & malicious prosecution against 1 & ; won and appealed.

1. What is malice?

2. Is there a defence against MP?

3. Was there MP on part of ?

H 1. Malice: ulterior motive other than honest desire of to have justice done; state of mind; indulgence of personal spite

2. Yes – there is a defence to MP: if honestly believes guilt of another & desires only enforcement of law (ie. No malice) you are not liable if wrongly lay information ie. negligent prosecution is not malicious prosecution

3. No - no evid that acted maliciously, no indirect motive; only lawful intentions

R: Defines “Malice” – onus on to prove

Difference between evidence from which malice may be inferred (eg absence of

reasonable and probably cause) & malice per se

Negligent prosecution isn’t malicious prosecution

Note Police officer was merely trying to uphold law, and acted with negligence, but not with malice.

Officer honestly doing his job, had no ulterior motive in charging the .

Nelles v Ontario 1989 S.C.C.

F , nurse, charged with murder of 4 infant patients.

brings action for malicious prosecution against the Crown and A.G. Trial & CA: dismissed action.

I Are the Crown and Attorney General (& servants, ie prosecutors – crown counsel, cops, etc) immune from liability for tort of malicious prosecution? (Crown – yes; A.G.-no)

H (1) In a malicious prosecution case, has burden to prove lack of reasonable and probable cause and presence of malice … note that this is a strict (difficult burden … no flood gates concern).

(2) (a) Crown is immune under 5(6) of Proceedings Against the Crown Act even if it acts malicious .. this is statutory immunity which cannot be interfered with.

(b) Immunity of the Attorney General and his/her agents is now qualified, and may be lost if malice can be proven.

C This was a policy decision: individual's right of action must be protected as per the Charter.

R AG and servants may be held liable of MP … must prove MALICE (as well as other three requirements, including absence of probably and reasonable grounds … a strict burden).

Note This case is important b/c it opens the door to holding other categories of possible defendants potentially liable (eg. expert witnesses).

Norman v Soule 1990 BCSC

F & others sued by Chem-Pro; believes he was sued to stop him from testifying against Chem-Pro; No evidence brought against . Not until end of trial was case against the discontinued; action in MP

I Does a claim of malicious prosecution lie when one is subjected to civil litigation, rather than criminal charges? … i.e. … Can a suit for MP succeed in a CIVIL case?

H No - in ordinary civil action it is not the bringing of suit that causes harm but rather, the publicity

Negative publicity is negated in civil cases b/c accused is given opportunity to clear his name in subsequent defamation suit.

MP exists only for criminal charges where maliciousness is the motivation

R: Casts doubt on whether an action in malicious prosecution can be sustained in civil disputes.

Although rare, malicious prosecution actions may arise from a civil case, however to succeed, a will have to prove that there been some act or threat in furtherance of an ulterior purpose (malice).

Contrary to earlier authority, MP requires threat/act of improper purpose to be established

POLICY: if MP allowed in civil actions, could have a chilling effect on ’s who might be discouraged to seek civil action to protect their rights (same rationale for denial of MP in all but most exceptional cases in crim prosecution: Nelles v.

Ontario). … plus a floodgate argument … lots of civil ’s might sue for MP.

Note A victory at trial is said to “clear a person’s reputation” in civil cases and opportunity for suit in defamation exists anyway. Criminal allegations are more damaging.

- this changes the law and opens the door to holding other categories of potential defendants liable … such as expert witnesses.

B. ABUSE OF PROCESS

(Wait a minute … why what is this … doesn’t this seem to provide an action where Norman v. Soule “casts doubt” on the availability of any action based on a CIVIL suit)

The must have used a legal process for a purpose outside and extraneous to the legal action itself.

Key Element: A collateral and improper purpose

A purpose other than that which the legal action was designed to achieve – ulterior motive.

Use civil process to achieve result not available in court. Eg. force into bankruptcy, to sell property to at reduced price; other forms of blackmail

Even if properly constituted and successful claim can be AP

Most courts and some leading academic writers believe that some “overt act” or “threat” in furtherance of the collateral and improper purpose must be proved.

Hoggarth says …. (from his case) … However, other courts believe the “overt act” requirement may be dispensed with if the improper purpose is clear from the pleadings or inferred from the action itself.

If improper purpose proved: a “properly constituted” civil action or one the wins may form the basis of the action.

To sue in Abuse of Process, must show:

1. used the legal process (w/ or w/o reasonable & probable grounds)

2. for purpose other than that which the process was designed to serve (ie. collateral & illicit purpose) … even if the original wins!

3. did some definite act or threat in furtherance of that purpose (generally, unless clear from the ’s pleadings themselves)

4. causing some measure of special damages (overlooked in some cases b/c presumed)

Hardball tactics do not constitute/prove the necessary collateral or improper purpose:

Calling unnecessary witnesses

Using adjournments and other delaying tactics

Initiating counter suits

Over sue of pretrial motions and other costly devices

Seeking maximum allowable damage

Pursuing actions and appeals with little merit

Refusing reasonable offers of settlement

Unlike malicious prosecution, it is not necessary to prove either:

Absence of reasonable and probable grounds

Termination in favour of the “now”

Not actionable per se - requires proof of a legally recognized type of damage

Difficulties:

It is difficult to prove improper motive – judges reluctant to infer such a purpose unless clear The Law Society rarely disciplines lawyers who abuse the system by pursuing actions w/o merit This tort does not address the problems of:

Unnecessary litigation cases w/o merit … to costly to defend 9/10 settled out of court, prior to trial fault based ins. helps lawyer’s more than clients contingency fees of 20-30% provide inappropriate incentives (same cut even if at

mediation … 25% as much work … but no rep. otherwise) few incentives for lawyers to be cost effective

Possible solutions:

Make abuse of process claims easier – remove overt act requirement, expand def’n of abuse No fault insurance – can reduce litigation & higher % of damages to

BUT with no fault insurance, damages will be reduced over time, as will damages for pain and suffering

Award costs directly against council – now only done in rare circumstances Must show council’s tactics had no merit to advance legitimate interest of client/only for

$ - also resisted

Grainger v. Hill CP 1838F mortgaged ship to b/ retained right to use for year or until mortgage paid off;

's decided they wanted ship immediately arrested b/c he didn't pay immediately, even though money was not yet due, knowing that the could not afford bail

unable to pay, signed over register of ship to under duress.

claimed financial loss for voyages he was unable to make.

I Did have a legitimate purpose for arresting , or was the purpose extraneous to legal action itself?

Was this MP or Abuse of Process? Why?

H Abuse of Process - ulterior motive for instigating prosecution was to extract from that which 's could not attain by the action itself (ie. the jailing was for debt unpaid b/ really wanted to get ownership of ship which such an action would not have given if successful)

allowed to recover ship w/o showing reasonable & probable grounds OR that 1st action had terminated in his favour ('s initial case against him was still pending)

R: Classic case of using civil process to extort property that could not be achieved by action itself

To bring an action for abuse of process, it must be demonstrated that used a legal process for a purpose outside and extraneous to the legal action itself. (ie. A collaterol and improper purpose)

This case created the Tort of Abuse of Process

GUILFORD INDUSTRIES v HANKINSON MGMT SERVICE LTD BCSC 1974

F owned lands for developing & performed some construction on land and wanted to be part of deal;

did not want to have anything to do with the ;

in attempt to prevent from selling or developing the land filed an outrageous and invalid lien on the land to force to settle a dispute.

I 1. Was there an abuse of process?

2. Is it necessary for suit against be ended before suit for abuse of process begins?

H 1. Yes - was disbarred lawyer & knew lien was no good, did so only to extort the property ;

The lien was devoid of any legal foundation, and was initiated for an unlawful purpose –

blackmail.

2. No - in MP it is necessary for the suit against to have finished (to est. prosecution

terminated in 's favour) but not necessary in suits of abuse of process

R Modern day application of Grainger v. Hill

C Awarded exemplary damages b/c banked on fact that he would get more money blackmailing P,

than he would have to pay in general damages if brought action for abuse of process.

NOTE THE DIFFERENCE IN TIMING … no need to wait for first suit (the basis of the abuse suit) to complete b4 an action re: abuse can be started … different from MP because you NEED to show that the won b4 you can bring an MP suit.

For the following 2 cases:

R: How many “unfair” tactics can be used w/o risk provided they are tactics within the realm of the action

Pacific Aquafoods Ltd v. C.P. Koch Ltd. BCSC 1988

F 's fish died and claims due to faulty machinery of ; counterclaims abuse of process

I Is there ground for counterclaim in abuse of process?

H No - no abuse of process b/c no ulterior motive or wrongful purpose on part of

If is trying to prolong the hearings as claimed by 's, this is still not abuse of process b/c motive is to receive damages from the action within the scope of the action.

Fact that may look bad b/c of complaint is not enough to give rise to action

R Wrongful purpose must be demonstrated to support an action in abuse of process. An action that

lacks sufficient factual evidence, or reflects poorly on the reputation of , does not give rise to a

cause of action.

KEY: Abuse of process differs from malicious prosecution in that the gist of the tort (abuse of process) is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance.

Tsiopoulos v. Commercial Union Assurance Co. 1986 Ont. HC F suing /insurer for entitlement to no-fault benefits and punitive damages; counterclaim abuse of

process saying there is no evidence for punitive damages and that trying to induce 's to settle

I Are 's grounds sufficient to make claim of abuse of process?

H No - may make insurance claim and is for judge to decide of enough evidence for punitive damages

Claim that was trying to force a settlement is not independent or extraneous to the action brought, so since no independent or ulterior motive, no abuse of process.

Part 3 :

In order to prove the tort of abuse of process, the following elements must be established: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding.[i] The test of abuse of process is whether a judicial process is used to extort or coerce.[ii] The key to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed.  Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion.

The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.[iii] The essence of the tort is misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.  To succeed in an action for abuse of process, a litigant must establish that the defendant: (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.[iv]

In order to establish the wilful-act element of the abuse-of-process tort, “some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” [v]

The New Mexico Supreme Court overruled Devaney v. Thriftway Mktg. Corp., 124 N.M. 512 (N.M. 1997), with respect to its holding that all malicious abuse of process claims require the defendant to have initiated a judicial proceeding against the plaintiff. [vi] The Supreme Court restated the elements of abuse of process as follows: (1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.[vii] An improper use of process may be shown by (1) filing a complaint without probable cause, or (2) an irregularity or impropriety suggesting extortion, delay, or harassment, or other conduct formerly actionable under the tort of abuse of process. [viii] A use of process is deemed to be irregular or improper if it (1) involves a procedural irregularity or a misuse of procedural devices such as discovery, subpoenas, and attachments, or (2) indicates the wrongful use of proceedings, such as an extortion attempt. [ix]Finally, the tort of malicious abuse of process should be construed narrowly in order to protect the right of access to the courts.[x]In any malicious abuse of process claim, the use of process for an illegitimate purpose forms the basis of the tort. When the judicial process is used for an illegitimate purpose such as harassment, extortion, or delay, the party that is subject to the abuse suffers harm, as does the judicial system in general.  Thus, the malicious abuse of process tort makes the process abuser liable to the other party for the harm caused by the abuse of process.

Abuse of process torts have traditionally been limited to abuses in judicial proceedings. New Mexico has specifically determined that abuse of process claims extend to arbitration proceedings as well.[xi]

[i] Bone v. Barnard, 2008 Ark. App. LEXIS 569 (Ark. Ct. App. Sept. 10, 2008)[ii] Id.

[iii] Rusheen v. Cohen, 37 Cal. 4th 1048, 1056-1057 (Cal. 2006)[iv] Id.

[v] Kauilani Ewa, LLC v. Chang, 2009 Haw. App. LEXIS 498 (Haw. Ct. App. May 22, 2009)[vi] Durham v. Guest, 145 N.M. 694 (N.M. 2009).[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Durham, 145 N.M. 694