Weilers LLP

Relitigating Is An Abuse Of Process

Relitigating Is An Abuse Of Process

June 6, 2024

By Brian Babcock 

Courts have limited resources. Parties usually want finality in resolving their disputes- at least one party usually does.


What happens when a party does not take “no” for an answer?

The law provides technical defences to repeated efforts to submit the same issue to the court – res judicata; cause of action estoppel; issue estoppel. But these do not always fit to describe why the conduct is improper.


The Ontario Court of Appeal, in La Française IC 2 v. Wires reminds us that these are subsets or examples of a broader class of wrong, “abuse of process”.

In this case, the parties submitted their dispute to international arbitration, and the disappointed party exhausted the appeals from the arbitration award. When the Superior Court ruled that the successful party could register the judgment in court in Ontario (to enforce it), the respondent appealed, on substantially the same grounds as they argued in appealing the arbitration award.

This situation does not fit nicely into any of the familiar categories to refuse re-litigation. That did not stop the Court of appeal from dismissing the appeal without getting to the merits, saying:

Abuse of process is a broad, flexible doctrine. It serves as an adaptable judicial tool to address circumstances that threaten the fairness and integrity of the court’s process and the administration of justice. It is not restricted to preventing the re-litigation of issues or addressing issues that could have been raised in previous proceedings. Rather, it becomes engaged “to prevent the misuse of [the court’s] 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”.

“Fairness” and “integrity” are central to a functioning judicial system. Although this detailed description of the doctrine of abuse of process may open the door to more arguments over “what is abuse of process?”  it is a useful reminder of the availability of this flexible principle, and an important ruling.


This decision is consistent with another recent ruling of the Court of Appeal, and consistent with Supreme Court of Canada precedent  another reason to take the message seriously. The court seldom repeats itself so strongly, as if to say, “what part of this do you not understand?”. In this case, they do more than just repeat the message, they expand upon it. This time, the message should be clear.


Part of our proud tradition is remaining current on developments in the law. We pair that with a progressive approach, using the full gambit of litigation tools to advance, or defend your case. We are serious about fairness and integrity, and even more serious about advocating on behalf of our clients. Though we like to have fun, and be comfortable for clients to deal with, we are serious lawyers. If that is what you are looking for, give us a call. We may be the right lawyers for you.