Canada: Coulda, Shoulda? The SCC Expands The Abuse Of Process Doctrine In Behn v. Moulton Contracting Ltd.

In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Supreme Court of Canada (the "Court") expanded the doctrine of abuse of process to preclude parties which employed self-help remedies from raising as a defence various arguments which could and should have been advanced by commencing formal legal proceedings instead of taking self-help steps. Unlike in cases of res judicata, where similar principles arise, it was of no concern to the Court that there was no pre-existing litigation or proceeding in which the various legal arguments could have been advanced originally. In other words, the party was estopped from raising defences as its election to pursue self-help remedies over a formal legal proceeding would bring the administration of justice into disrepute.


This matter arises following the Crown's granting of authorizations to Moulton Contracting Ltd. ("Moulton") to harvest timber within the territory of the Fort Nelson First Nation (the "FNFN"). Individual members from the FNFN (the Behns) who opposed the authorizations erected a campsite to block road access to the logging sites. Moulton commenced a tort action against the individual members, and others, for interference with contractual relations. In their statement of defence, the Behns denied their conduct was unlawful as the authorizations granted by the Crown were illegal because: (a) the Crown's failed to fulfill its duty to consult with the FNFN; and (b) the authorizations infringed treaty rights to hunt and trap. Moulton brought applications to, among other things, have these portions of the Behns' defence struck out.

The British Columbia Supreme Court and Court of Appeal held that the impugned defences were an abuse of process. The BCSC reasoned the Behns could not be permitted to introduce the issue of invalidity of the authorizations as they should have applied for judicial review when the authorizations were granted. The Court of Appeal found the defences constituted an impermissible collateral attack on the authorization granted to Moulton as the FNFN had a number of legal avenues to challenge the authorizations.

The Behns sought to overturn the decision of the Court of Appeal with respect to standing and abuse of process. For a general overview of the Court's decision on all issues, including standing, see our May 10, 2013 'This Week at the SCC' post prepared by Kirsten Thompson here.

The Decision

With respect to the issues of abuse of process, the Court confirmed that raising the defences of breach of the duty to consult and of treaty rights was an abuse of process, noting that "if the Behns were of the view that they had standing, themselves or through the FNFN, they should have raised the issue at the appropriate time."

The Court was critical of the Behns' failure to commence any judicial review process, commence an injunction, or seek any other form of judicial relief against the Crown or Moulton:

the Behns' acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued. They did not raise their concerns with Moulton after the Authorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton. By doing so, the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations.

In reaching this conclusion, the Court revisited the underlying role of the doctrine of abuse of process. The Court confirmed that abuse of process has its roots in the inherent and residual discretion of judges to prevent abuse of the court's process. The Court affirmed the principles set forth in Canam Enterprises Inc. v. Coles, 2002 SCC 63, that abuse of process is unlike the concepts of res judicata (i.e. cause of action estoppel) and issue estoppel which have specific requirements. The Court reiterated prior findings that the doctrine of abuse of process:

engages the inherent power of the court to prevent 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. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

In the Court's view, "the case law confirms that the administration of justice and fairness are at the heart of the doctrine of abuse of process." While prior Supreme Court of Canada cases dealing with abuse of process, such as Canam, arose when litigants sought to prevent a party from re-litigating an issue in circumstances in which the requirements for issue estoppel were not met, the Court was quick to note abuse of process is not strictly limited to precluding re-litigation alone. The Court noted that unreasonable delay that causes serious prejudice could also amount to an abuse of process.

In sum, the Court held that the doctrine of abuse of process is flexible and exists to ensure that the administration of justice is not brought into disrepute. To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult as a defence was, in the Court's view, tantamount to condoning self-help remedies, thereby bringing the administration of justice into disrepute.

Potential Significance

The Court's decision to expand the doctrine of abuse of process in this manner is significant when compared to similar doctrines which seek to limit the ability of litigants to raise issues which could have been raised in earlier proceedings but were not. The rule developed in Henderson v. Henderson, (1843), 3 Hare 100, and adopted in Doering v. Grandview (Town), [1976] 2 S.C.R. 621, immediately comes to mind. The rule holds that:

where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [emphasis added]

Unlike the rule in Henderson, the Court was prepared to use the doctrine of abuse of process to prohibit the Behns' ability to raise as a defence the validity of various authorizations despite the fact that no other prior proceeding or legal challenge had been commenced and that the Behns' communicated their opposition to the Ministry of Forests shortly after the authorizations at issue were granted. There was not, as in the Henderson type cases, a failure to raise one or more potential issues in previously existing proceedings. The Court's treatment of the doctrine of abuse of process is quite unique as compared to the previous cases dealing with re-litigation in circumstances where the criteria for res judicata are not met or cases where delay will cause prejudice in an ongoing proceeding. In both instances, there is either some prior or ongoing legal proceeding at issue.

What is notable, but which did not expressly factor into the Court's decision, is that the Crown authorizations at issue were only valid for a year thereby making any formal legal challenge regarding the validity of the authorizations irrelevant by the time the BCSC considered the underlying Moulton applications to strike. With no active Crown authorizations to challenge, the Court was left with the practical reality that permitting the defences would potentially allow the Behns to validate their use of self-help remedies (as opposed to some governmental or court processes) to fulfil their interest of preventing Moulton from carrying on its timber harvesting. Had the Crown authorizations still been active and open to challenge, there would arguably have been some debate over whether or not the more appropriate course would have been, among other things, to permit the defences or stay proceedings pending the commencement and disposition of a judicial review (or other course of judicial relief). There could also be a debate as to whether the Behns would be precluded from commencing a formal claim outright, considering they elected to take the self-help route over any formal process. Unfortunately for future litigants, the facts of the case did not lend themselves to such a debate or determination by the Court.

The very unique circumstances in this case raise questions about how broadly the Court's decision may be applied when dealing with future cases where a defendant fails to commence a formal—but still available—proceeding but opts to raise its arguments as defences in another proceeding. On the other hand, the Court's decision may now stand for the simple proposition that the doctrine of abuse of process will operate to prohibit litigants from defending self-help remedies when some form of judicial relief which can address the party's concerns also exists. Whatever the case may be, this is undoubtedly a case of interest for participants in industries which are often faced with self-help interference by groups or individuals.

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