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.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions