Legal Blog

Doctrine of Abuse of Process

Winter v. Sherman Estate 2018 Ont CA

The doctrine of abuse of process (which has nothing to do with the tort of abuse of process) is a doctrine that is part res judicata and part issue estoppel. It is similar to issue estoppel because it can bar litigation of legal and factual issues necessarily bound up with the determination of an issue in a prior proceeding. However, it does not need mutuality and it can apply to issues that could have been determined in a previous proceeding. The doctrine bars litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice.” In this case, the evidentiary underpinning of the action was the same as a previous action such that it was unfair and an abuse of process to allow the plaintiffs to re-litigate their case with a new theory to see if it would succeed while the previous theories had failed.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.