What is an abuse of process in the context of s. 47 of the Construction Act?

Date: January 2023

Since major amendments to the Construction Act in 2018, there have been questions with respect to several new or amended provisions that have kept construction lawyers in Ontario up at night as we wait for judicial interpretation.

One of these questions is – what is an “abuse of process” in the context of s. 47 of the Construction Act?

In a recent motions decision from the Superior Court of Justice, the court confirmed that it is appropriate to consider how the doctrines of abuse of process (and “vexatious” and “frivolous”) have been interpreted under Rule 21.01(3)(d) in the context of a s. 47 motion to discharge a lien.

In dismissing the owner’s motion, the court considered existing principles with respect to an “abuse of process” in the context of Rule 21.01(3)(d):

  • an abuse of process is a discretionary principle used to bar proceedings that are inconsistent with the objectives of public policy;
  • the general principles of abuse of process act to protect a party from defending a cause of action previously litigated where issue estoppel did not strictly apply;
  • the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute; and,
  • a court can only invoke its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action in the clearest of cases.

Click here for a link to the decision.

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