Tort of: Abuse of Process

[MrSmith]

Navigating the legal system without a lawyer is a demanding task, especially when dealing with complex civil wrongs. When a party uses the court system wrongfully, self-represented litigants often look to the tort of Abuse of Process for a remedy.

However, in Canadian and British Columbia law, this civil claim is exceptionally narrow. It is vital to understand that the civil tort, which can result in a judgment for financial damages, is entirely separate from the procedural doctrine of abuse of process, which is used to strike out pleadings or stop unfair court actions within an existing lawsuit.

The following comprehensive legal definition breaks down the essential requirements of the tort, specifically designed to help pro se litigants evaluate whether they have a viable claim.

The Tort of Abuse of Process
The tort of abuse of process is an intentional civil wrong committed when a person uses the machinery of the court system not to seek a legitimate legal remedy, but to achieve an entirely separate, improper, and collateral objective that sits completely outside the normal scope of litigation.
To succeed in an action for this tort in the Supreme Court of British Columbia, a plaintiff must prove three strict, cumulative elements on a balance of probabilities. If even one element is missing, the claim will fail.

The Three Essential Elements

1. Collateral and Improper Purpose
The defendant must have initiated or used the legal process for a predominant purpose that is collateral, indirect, and illegitimate. This means the lawsuit is being used as a weapon to extort, coerce, or pressure the target into doing something unrelated to the legal rights being argued in court.
The normal incidents or consequences of litigation, such as delay, emotional stress, high legal costs, public embarrassment, or temporary damage to a business reputation, do not qualify as an improper collateral purpose. These hardships are the unfortunate, natural results of being sued. To meet this element, the plaintiff must prove the litigation was brought to achieve an objective completely foreign to the lawsuit itself, such as suing someone solely to force them to surrender an unrelated piece of property.

2. An Overt Act or Threat
The defendant must have taken a specific, definitive overt act or made a distinct threat in furtherance of their improper purpose. It is not enough to show that the defendant had bad motives or a hidden agenda when they filed the lawsuit.
Even if a party starts a regular legal process knowing their claim lacks merit, or acts out of pure malice, the tort is not established if they simply pursue that regular process to its natural conclusion. There must be an independent act or threat aimed at extracting the improper advantage.

3. Resulting Loss
The plaintiff must prove they suffered actual, measurable financial loss or damages directly caused by the defendant’s overt act or threat. Speculative frustration or general annoyance is insufficient; tangible harm must be demonstrated.

Leading Precedent: Oei v. Hui, 2020 BCCA 214
In British Columbia, the definitive authority on this tort is the B.C. Court of Appeal decision in Oei v. Hui, 2020 BCCA 214. This case clarified two major points that heavily impact self-represented litigants.

The Knowing Falsity Rule
The Court of Appeal ruled that knowingly advancing a false claim is not enough to trigger the tort of abuse of process. If a plaintiff merely alleges that the defendant lied in their court documents, that plea of knowing falsity does not transform an ordinary lawsuit into a tortious one.

This rule exists to protect the doctrine of absolute privilege, which ensures that statements made in court cannot easily become the basis for a brand-new, retaliatory lawsuit. Lies and frivolous claims must instead be dealt with inside the original lawsuit using procedural remedies, like asking the judge to strike the claims or award special costs.

Confirmation That an Overt Act is Mandatory
Prior to this ruling, some B.C. cases suggested that a specific overt act might not be necessary if the bad intentions were clear enough. The Court of Appeal firmly rejected this, confirming that an overt act is a strict requirement. Without it, courts would be forced to constantly police the internal motives of litigants, leading to an endless cycle of retaliatory lawsuits.

Summary Guide for Self-Represented Litigants
When deciding whether to bring an action for the tort of abuse of process, remember these key legal realities:

Regarding the primary motive, it must be a collateral threat or extortion, not just an unmeritorious or weak lawsuit.

Regarding lies in pleadings, knowingly making false statements in a claim does not automatically equal the tort.

Regarding proof required, you must point to a specific, observable action or threat outside regular court steps.

Regarding the danger, filing an unmerited tort claim for abuse of process can itself be viewed as a procedural abuse, resulting in severe cost penalties against you.

The courts keep this tort heavily restricted to ensure everyday citizens retain open access to justice without the constant fear of being sued for damages if their legal arguments turn out to be wrong.

[White Wolf]

Here is a great explanation.

July 28, 2020
Blog Post


In Oei v. Hui,[1] the B.C. Court of Appeal clarified the elements of the tort of abuse of process and, in doing so, reinforced its narrow scope. In particular, the Court of Appeal clarified that the tort is narrower than the procedural fault of abuse of process and has three elements: (i) a collateral and improper purpose; (ii) an overt act in furtherance of the collateral and improper purpose; and (iii) resulting loss. While some B.C. cases had suggested that an overt act might not be required, the Court of Appeal rejected this suggestion and confirmed that an overt act is essential. It also held that a plea of knowing falsity (i.e., a plea that the earlier claim rests on allegations that the claimant knows to be false) cannot transform a purpose that is within the scope of the litigation into a collateral and improper purpose. The message is clear: the tort must remain carefully circumscribed to avoid a proliferation of unmerited retaliatory lawsuits.

Facts

Oei involved two separate but related proceedings in which the plaintiffs and defendants traded places. Both proceedings arose out of a written agreement between Concord Pacific Acquisitions Inc. (“Concord”) and a Singapore-based businessman named Mr. Oei and two of his companies (the “Oei parties”) in respect of a major real estate development project in Vancouver. First, Concord sued the Oei parties for breach of contract in connection with the agreement. Second, the Oei parties sued Concord and its principal (the “Concord parties”) for the tort of abuse of process, alleging that the Concord parties knowingly advanced false claims against the Oei parties in the first action for the purposes of constraining their ability to deal with the lands in question and coercing them to negotiate. In response, the Concord parties applied to have the Oei parties’ pleadings struck on the basis that they disclosed no reasonable claim. On such an application, courts are required to assume the truth of the facts pleaded, so the merits were not in issue.

Chambers Judge’s Decision

The chambers judge dismissed the Concord parties’ application to strike. He observed that the elements of the tort of abuse of process have been described as: (i) a collateral and improper purpose; (ii) an overt act; and (iii) resulting loss. He noted, however, that the law in B.C. was unclear on whether an overt act is required.

The arguments before the chambers judge focused on the first element of the tort. The chambers judge accepted that the “incidents or consequences of litigation”, such as “delay, cost, potential embarrassment, difficulty in securing financing and a chilling effect on those who would otherwise do business with the party who has been sued”, do not qualify as a collateral and improper purpose.[2] He considered, however, that where a party knowingly advances false claims for the purpose of achieving these same consequences and coercing the other party, this constitutes a collateral and improper purpose.[3] On this premise, he held that it was not plain and obvious that the Oei parties’ pleadings were bound to fail.

Court of Appeal Decision

The Court of Appeal allowed the Concord parties’ appeal. Its reasons focused on the first two elements of the tort.

Knowing Falsity and the Improper and Collateral Purpose Requirement

The Court of Appeal confirmed that the tort of abuse of process is distinct from, and narrower than, the procedural fault of abuse of process, which may ground the striking of pleadings, an elevated costs award, and other procedural remedies, but which cannot lead to a damages award. It also confirmed that, unlike the procedural fault of abuse of process, the tort requires proof of a collateral and improper purpose.

On that point, the Court of Appeal stressed that one action may beget another only where the first is brought for a purpose that is both improper and collateral, meaning that the purpose is “outside the normal incidents of litigation”.[4] This requirement, the court stated, “keeps the litigation between parties from multiplying beyond the original proceedings, which are intended to address all issues between the parties arising from the lis”.[5]

The main issue before the court was whether a plea of knowing falsity could transform a purpose that is within the normal incidents of litigation into one that is outside the normal incidents of litigation. The court answered this question in the negative, stating that “knowing falsity, by itself, is not a ‘purpose’ as required for the tort, and a plea of knowingly false allegations cannot transform an acceptable purpose into a tortious purpose”.[6] It added that the collateral and improper purpose requirement is what allows the tort to stand in harmony with the doctrine of absolute privilege, which generally shields statements — even knowing falsehoods — expressed in the course of litigation from becoming the source of further litigation.

The Overt Act Requirement

The Court of Appeal then observed that certain B.C. decisions — including, most notably, the Court of Appeal’s own decision in Smith v. Rusk[7] — had suggested that an overt act might not be necessary to establish the tort. The court rejected this suggestion. In doing so, it referred to case law explaining that, in the absence of an overt act requirement, any legal process could be challenged on account of its “hidden agenda”,[8] and the tort could be made out on an “examination of bad motives alone”.[9]

Remedy

The Court of Appeal held that the chambers judge erred in law by concluding that a plea of knowing falsity could transform a purpose that is within the normal incidents of litigation into one that is outside the normal incidents of litigation. However, because the chambers judge did not consider whether, absent the plea of knowing falsity, the Oei parties had pleaded a collateral and improper purpose, the Court of Appeal considered it appropriate to remit the matter to the B.C. Supreme Court for determination.

Comments

The Court of Appeal’s decision sends the message that the tort of abuse of process must remain carefully circumscribed to avoid a proliferation of unmerited retaliatory lawsuits. It also provides a welcome degree of clarity on the elements of the tort. That is not to say that this area of the law is without uncertainty. For example, whether a particular purposes qualifies as one that is “collateral and improper” (i.e., sits outside the normal incidents of litigation) may be debated. Similarly, whether a particular act qualifies as an “overt act in furtherance of the collateral and improper purpose” may be debated. These are important questions that will have to be resolved on the particular facts of each case.

Because the deadline for seeking leave to appeal to the Supreme Court of Canada has yet to expire, it remains to be seen whether the Court of Appeal’s decision will be the last word on the subject.

Case Information

Oie v Hui, 2020 BCCA 214

Docket: CA45549

Date of Decision: July 24, 2020

____________________________________________



[1] 2020 BCCA 214 [Oei].

[2] 2018 BCSC 1346, at para. 25.

[3] Ibid., at para. 26.

[4] Oei, at paras. 26, 37.

[5] Ibid., at para. 37.

[6] Ibid., at para. 37.

[7] 2009 BCCA 96.

[8] Oei, at para. 69, quoting Summex Mines Ltd. v. Farallon Resources Ltd., [1998] B.C.J. No. 1723 (S.C.), at para. 181.

[9] Oei, at para. 72, quoting Office and Professional Employees Int’l. Union v. Office and Professional Employees Int’l. Union, Local 15, 2006 BCSC 847, at para. 24.

B.C. Court of Appeal Clarifies the Elements of the Tort of Abuse of Process https://share.google/dDjFZ3ClcWIELfN4g