Are you looking into filing or responding to an abuse of process Lawsuit? Do you want to file a lawsuit in Ontario? This article will tell you what you need to know.

After you are done reading, if you want to speak to a lawyer in Ontario, you can use our lawyer directory. You can also leave reviews for lawyers.

So what is an abuse of process? Many people threaten to start a lawsuit for it, but most people have no idea what it is.

It’s when someone or an organization starts a lawsuit for wrongful purposes. The purpose of the lawsuit wasn’t to recover damages but to cause damage to the plaintiff.

Abuse of process attorney

The plaintiff is going to have to show that the defendant willfully engaged (or started) a lawsuit or Application (chambers) in a way that was a misuse of legal procedures.

The defendant must have intentionally used the legal process in a way that the justice system does not allow.

You can learn more about lawsuits in our series.

And then the plaintiff must show that they were harmed (had damages) because of the abuse of process.

The person filing the lawsuit must show that the defendant’s conduct (or actions) was the reason for the wrongful use of the legal procedure. 

Four elements of the tort of abuse of process in Ontario

1. Defendant engaged in a legal procedure
2. The procedure was improper
3. The plaintiff had damages
4. The defendant caused those damages in a significant way (not just partially)

Malicious prosecution difference

Malicious prosecution is not the same as abuse of process. Many people (even attorneys) confuse the two.

Malicious prosecution is when someone files a lawsuit and there is no legal basis for it. For example, if I sued you for looking at me in a funny way. 

There is no law against looking at me in a weird way. I should know this before filing a lawsuit. If I file this lawsuit just to stress you out, then that’s malicious prosecution.

You would have to wait until I lose my silly lawsuit before suing me for malicious prosecution.

An abuse of process lawsuit can be filed during the lawsuit, there’s no need to wait until the end. 

Deciphering the Complexities of Abuse of Process Lawsuits

You can’t file an abuse of process claim just because someone sued you, and you don’t agree with what they said. You might consider a counterclaim instead.

If you want to speak to a lawyer in Ontario, click the link at the beginning of this article to find one. A lawyer can help with an abuse of process lawsuit in Ontario.

Ontario’s abuse of process lawsuits resembles a marathon runner. Their heart pounds, breaths come in gasps, yet the finish line doesn’t seem to get any closer.

An average lawsuit in Ontario drags on for nearly two years, the same rate as in 2015, like a song stuck on repeat. Over 70% of cases, according to the Ministry of the Attorney General, involve some allegation of abuse of process.

Ontario’s Abuse of Process Lawsuits

Imagine a highway clogged with cars, that’s Ontario’s civil justice system. Rather than vehicles, it’s jammed with lawsuits. In 2021, nearly 50,000 new civil lawsuits piled onto the docket, a sharp 30% rise from the preceding five years.

Abuse of process allegations, like an unwelcome hitchhiker, accompany a stunning one in three of these cases.

Legal disputes aren’t battles in a ring but are more akin to a drawn-out chess game. They require strategic maneuvers, patience, and deep pockets.

The Canadian Lawyer’s 2021 survey showed that an hour of a lawyer’s time costs around $360 on average. Legal bills pile up quickly, becoming a mountain of debt that not every party can surmount.

Process Legalities in Ontario: What You Need to Know

The battlefield of these lawsuits isn’t always fair. Parties with deeper pockets can game the system. They use delays, frivolous motions, and redundant discovery requests to wear down their opponents.

This misuse of legal procedures, like throwing sand in the gears of a well-oiled machine, slows the wheels of justice.

Imagine a scale, on one side is the right to a fair trial, on the other, is the need to keep the system efficient. The Supreme Court of Canada, in the landmark 2014 Hryniak v. Mauldin decision, tilted the balance towards efficiency. It urged lower courts to actively prevent abuse of process, marking a hopeful change of tides.

Ontario’s Abuse of Process Lawsuits Explained

But like stubborn weeds in a garden, abuse of process allegations refuse to wither away. Ontario’s judges dismiss more than half of them, as per a 2021 survey by the Law Society of Ontario. Yet, they keep springing up, suggesting a systemic problem rather than a series of isolated incidents.

The Ontario government’s efforts to digitize the courts should theoretically streamline processes. In 2022, Ontario spent $500 million on this initiative.

Yet the fruits of this investment remain to be seen. It’s like waiting for a train that never arrives, while the abuse of process continues unchecked.

Drowning in a sea of paperwork, Ontario’s courts find it tough to keep up. According to the 2021 Annual Report of the Courts of Ontario, nearly 100,000 civil cases were pending.

Protecting Your Rights

About 30,000 of these were more than three years old. It’s as if the system is caught in a slow dance, unable to quicken its pace.

Abuse of process lawsuits in Ontario is a Gordian knot. Despite the best intentions and numerous reforms, the problem persists. Statistics point to a system that’s struggling under the weight of its caseload.

Ontario’s justice system is more like a marathon runner stuck on a treadmill, running hard but not moving forward. And while the runner sweats and pants, justice remains elusive for many.

Author: Alistair Vigier is the CEO of ClearWay Law