c


 

 c





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 inc urred in the legal
process. These losses may be qualified under charges of Malicious Prosecution,
Wrongful Civil Proceedings or Abuse of Process.

  c

 

Malicious Prosecution is a tort much like Abuse of Process, which involves the initiati on
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 Malicio us Prosecution charges may
only be pressed if the court or plaintiff terminates the lawsuit in favor of the defense.


 c




Wrongful Civil Proceedings are civil lawsuits filed without cause of action and merit, by
the court. A person i s 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.

 
c



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.
c


r

 


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

Gery narrowly defined ͙ do not address ͞economic warfare͟ ͙ the little guy get the boot once
again!

Interests protected include:

Ñoth torts are designed to protect against the improper use of the legal system

ntegrity of Criminal and Civil Justice Systems

Taxpayer͛s interest in effective justice

ndividual interest in not having to experience the cost, embarrassment, damage to reputation
and emotional distress of an unwarranted criminal charge or civil suit

Deally two competing interests: (r



  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

Îowever, 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 PROSECUTION
What is a PROSECUTION?

must be criminal

Ñegins when:

an ͞information͟ is PD S
T  to a judicial officer ͙ doesn͛t need a ͚process͛

note that a j. at this stage is acting AM
STDATG  ͙ 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

AAS: nformation is accepted as disclosing an offense

POSSÑ: hen nformation is presented to a judicial officer

Ñ sic Elements:

1. There must be a Prosecution (criminal matter) ʹ a criminal process must have been
actioned.
 2. The outcome in that criminal process must be terminated in favour of the ˜.
3. Absence of Deasonable and Probable Cause.

re son
le grounds @ information that would lead a reasonable person to suspect ˜ —ay
have committed a crime ͙ just a suspicion

pro

ly 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 A
 ÑOTÎ are required
4. Malice ʹ 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 ʹ whether or not that belief is reasonable.


ot 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 malic ious per se.

Problem with Concurrent Motives:

Must honest desire be the only, dominant, or sufficient motive?

Can be more than one motive, doesn͛t 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 you͛re ok.


eed not necessarily be the dominant motive, just sufficient ͙ no real
authority on this issue.


OT (again) the difference between evidence and malice ͙ may draw inference of
malice from evidence ͙.


ote: amage is presumed (includes loss of reputation, embarrassment, legal costs) ͙ this
is sometimes listed as a fifth required element.

t is assumed that the ˜ suffered some loss or some harm.

Who —ay be sued?

Since r

 
 , Prosecutors (AG and servants) are no longer immune, their immunity
is now ͞qualified͟ & not ͞absolute.͟ Therefore, immunity may be lost if malice is proven.

PDOCS CUTODS and AG͛s @ not immune

POC OFFC DS @ not immune

P DT T
SS S @ probably immune but open to challenge

OD
AD T
SS S @ immune

TÎ CDO
@ immune (s.5(6) of the c
  


r

  ͙ but you need to

prove malice.

ÿ ould tort of M licious Prosecution
e A
olis ed?

 ADGUM
T FOD: @ Darely used - <5 successful cases in Canada

@ Police, prosecutors and courts filter out bad cases

(test = more likely than not, beyond D ͙ high test

@ quality control)

@ aw 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)

@ Îogarth: a good thing, protects citizens ͙ a bit

of a deterent.

ADGUM
T AGA
ST: @ System must have integrity - used rarely, but

good deterrent

@ amage to falsely accused: to reputation,

embarrassment, emotional security, legal costs

@ Must keep control over cost of unnecessary

prosecutions

! r
 


!   !!

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

's filed ͞information͟ against ˜ for theft of cars; ˜ had sold cars but couldn͛t 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. as the filing of information (swearing before J of P) enough to allow ˜ to sue in malicious
 prosecution?

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

Î T ST for Malicious Prosecution: id ˜ suffer damages as a result of proceedings ?

note: test is   whether proceedings have reached stage of being called a 'prosecution'; ie. it is  
necessary for JP to have issued 'process' (ie. summons or warrant) but calling police & alleging
maliciously is   enough; must have an arrest or laying of info.

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

o - must have reasonable & probable grounds for laying charge - none here.

D: Ñ sic elements of M licious Prosecution

Once the law has been knowingly, but wrongfully set into —otion via an arrest or infor—ation,
da—ages are recoverable if ˜ can prove da—ages resulted fro— the —alice of the .

Good case for basic elements of the tort

Prosecution commences when information sworn before justice of the peace

ot necessary for JP to issue ͞process͟ (summons or warrant as understood in criminal law)

n tort law, prosecution commences when the information is sworn before a J.P. has done all
he can to commence prosecution. n 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. ʹ Malicious prosecution only when arrest or an
information laid

   

 !!r

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. hat is malice?

2. s there a defence against MP?

3. as there MP on part of
?

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

2. es ʹ there is a defence to MP: if honestly believes guilt of another & desires only enforcement of
law (ie.
o malice) you are not liable if wrongly lay information ie. negligent prosecution is not
malicious prosecution

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

D: efines ͞Malice͟ ʹ onus on ˜ to prove

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

reasonable and probably cause) & malice per se

egligent prosecution isn͛t malicious prosecution

ote @Police officer was merely trying to uphold law, and acted with negligenc e, but not with malice.

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

r

  !! 

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

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

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

Î (1) n 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 c
  
 even if it acts malicious ..
this is statutory immunity which cannot be interfered with.

(b) mmunity 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 th e Charter.

D AG nd serv nts m y
e eld li
le of MP ͙ ˜ must prove MALICE ( s well s ot er t ree

requirements, including
sence of pro

ly nd re son
le grounds ͙ strict
urden).

ote This case is important b/c it opens the door to holding other categories of possible defendants
potentially liable (eg. expert witnesses).

r
 
 
F & others sued by Chem-Pro; believes he was sued to stop him from testifying against Chem-Pro;

o evidence brought against ˜.
ot until end of trial was case against the ˜ discontinued; action in
MP

 oes 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 CG case?

Î
o - in ordinary civil action it is not the bringing of suit that causes harm but rather, the publicity

egative 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

D: C sts dou
t on w et er n ction in m licious prosecution c n
e sust ined in civil

disputes.

Alt oug r re, m licious prosecution ctions m y rise from civil c se, owever to
succeed, ˜ will ve to prove t t t ere
een some ct or t re t in furt er nce of n
ulterior purpose (m lice).

Contr ry to e rlier ut ority, MP requires t re t/ ct of improper purpose to
e

est
lis ed

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: r

 


 . ͙ plus a floodgate argument ͙ lots of civil ͛s might sue for MP.

ote A victory at trial is said to ͞clear a person͛s reputation͟ 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.

Ñ. AÑUSE OF PROCESS

(ait a minute ͙ why what is this ͙ doesn͛t this seem to provide an action where r


͞casts doubt͟ on the availability of any action based on a CG suit)

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

>ey Element: r collateral and i—proper purpose

  A purpose other than that which the legal action was designed to achieve ʹ ulterior
motive.
  Use civil process to achieve result not available in court.

g. force ˜ into bankruptcy, to sell property to at reduced price;

other forms of blackmail
  ven if properly constituted and successful claim can be AP

Most courts and some leading academic writers believe that some ͞overt act͟ or ͞threat͟ in
furtherance of the collateral and improper purpose must be proved.

Îoggarth says ͙. (from his case) ͙ Îowever, other courts believe the ͞overt act͟ requirement may
be dispensed with if the improper purpose is clear from the pleadings or inferred from the action
itself.

f improper purpose proved: a ͞properly constituted͟ 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)

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

Calling unnecessary witnesses

Using adjournments and other delaying tactics

nitiating counter suits

Over sue of pretrial motions and other costly devices

Seeking maximum allowable damage

Pursuing actions and appeals with little merit

Defusing 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 ͞now͟ ˜

@
ot actionable per se - requires proof of a legally recognized type of damage

Xifficulties:

t is difficult to prove improper motive ʹ judges reluctant to infer such a purpose unless clear

The aw 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
  þ/10 settled out of court, prior to trial
  fault based ins. helps lawyer͛s 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)

l few incentives for lawyers to be cost effective

Possible solutions:

Make abuse of process claims easier ʹ remove overt act requirement, expand def͛n of abuse

o fault insurance ʹ can reduce litigation & higher % of damages to ˜

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

Award costs directly against council ʹ now only done in rare circumstances
  Must show council͛s tactics had no merit to advance legitimate interest of client/only for
$ - also resisted

 !

! " 
F ˜ 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.

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

as this MP or Abuse of Process? hy?

Î 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 OD that 1st action had
terminated in his favour ( 's initial case against him was still pending)

D: Cl ssic c se of using civil process to extort property t t could not
e c ieved
y ction
itself

To
ring n ction for
use of process, it must
e demonstr ted t t used leg l process for
purpose outside nd extr neous to t e leg l ction itself. (ie. A coll terol nd improper purpose)

@ T is c se cre ted t e Tort of A
use of Process

GUILFORD INDUÿTRIEÿ v HAN>INÿON MGMT ÿERVICE LTD ÑCÿC 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.

 1. as there an abuse of process?

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

Î 1. es - 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 ʹ

blackmail.

¢. No - in MP it is necess ry for t e suit g inst ˜ to ve finis ed (to est. prosecution

termin ted in ˜'s f vour)
ut not necess ry in suits of
use of process

D Modern day application of Grainger v. Îill

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.

OT TÎ FF D
C 
TM
G ͙ 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
 to show that
the ˜ won b4 you can bring an MP suit.

Mor the following 2 cases:

R: How m ny ͞unf ir͟ t ctics c n
e used w/o risk provided t ey re t ctics wit in t e re lm
of t e ction

P cific Aqu foods Ltd v. C.P. >oc Ltd. ÑCÿC 1988

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

 s there ground for counterclaim in abuse of process?

Î
o - no abuse of process b/c no ulterior motive or wrongful purpose on part of ˜

 f ˜ 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

D rongful 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.

K : 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.

˜#

! 
$r
  ! !!   
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

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

Î
o - ˜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.
c


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, ³some 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 X
 


  ., 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] Ñ 
Ñ  , 2008 Ark. App. LEXIS 569 (Ark. Ct. App. Sept. 10, 2008)
[ii] 
[iii]  
 , 37 Cal. 4th 1048, 1056-1057 (Cal. 2006)
[iv] 
[v] 

 
, 2009 Haw. App. LEXIS 498 (Haw. Ct. App. May 22, 2009)
[vi] X 
 , 145 N.M. 694 (N.M. 2009).
[vii] 
[viii] 
[ix] 
[x] 
[xi] X , 145 N.M. 694