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ABUSE OF LEGAL PROCEDURE OR PROCESS - Elements of tort - Establishing elements

Tuesday, September 01, 2020 @ 6:25 AM  


Lexis Advance® Quicklaw®
Appeal by the defendants from a decision refusing to strike the statement of claim alleging the tort of abuse of process on the basis it disclosed no reasonable claim. The appellants commenced an action against the respondents in 2015 for specific performance of an alleged contract by which the appellants would acquire a 50 per cent indirect interest in real property and would enter into a joint venture to develop the property. The action was dismissed in 2018. In 2016 the respondents commenced the present action alleging that the appellants engaged in tortious abuse of process in commencing the 2015 action by concocting claims known to be false for the purposes of constraining the respondents’ abilities to deal with their lands and coercing them to negotiate. The judge concluded that the plea that knowingly false allegations were made in the first action could satisfy the improper or ulterior purpose requirement of the tort and that where an action was based on a fiction for achieving some of the inevitable incidents or consequences of litigation to coerce the other party, the purposes were collateral to the action. The judge thus held that it was not plain and obvious that the action could not succeed.

HELD: Appeal allowed. The judge erred in law in respect of the requirement of a collateral and improper purpose. The judge did not decide whether the pleadings in the current action, other than the plea of knowingly false allegations, pleaded a collateral and improper purpose. The judge’s reasons focused on the effect the plea of knowingly false allegations had on the incidents of litigation. The plea of intentionally dishonest allegations advanced in the 2015 action was not capable of changing the purpose from one inside the ambit of the 2015 action to a collateral purpose outside it. Knowing falsity, by itself, was not a purpose as required for the tort, and a plea of knowingly false allegations could not transform an acceptable purpose into a tortious purpose in respect of the tort of abuse of process. The doctrine of absolute privilege, for reasons of policy, shielded the legal process from itself becoming the source of further litigation.

Oei v. Yan, [2020] B.C.J. No. 1174, British Columbia Court of Appeal, M.E. Saunders, S. Stromberg-Stein and S.A. Griffin JJ.A., July 24, 2020. Digest No. TLD-August312020003