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Portions of Claim Struck Due to Abuse of Process

By Matthew Umbrio

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 or would bring the administration of justice into disrepute. This doctrine was recently considered in Urban Mechanical Contracting Ltd. v. Broccolini Construction (Toronto) Inc. et al., 2021 ONSC 1807.

The plaintiff and Broccolini Construction (Toronto) Inc. (“the defendant”) partially settled a prior action related to work conducted by the defendant on a renovation project. The settlement excluded claims related to delay by the defendant in completing the work.

The plaintiff commenced a new action. The defendant brought a motion to strike certain paragraphs from the claim, arguing that portions of the new claim dealt with matters that had already been settled. Justice Sossin (as he then was) struck several paragraphs from the claim.

The plaintiff then filed a Fresh as Amended Statement of Claim. The defendant brought a further motion to strike, arguing that certain paragraphs in the fresh claim were already addressed by Justice Sossin and, therefore, constituted an abuse of process. Justice Vella partially granted the relief sought by the defendant.

Test for Abuse of Process

The relevant test for abuse of process was set out by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. Abuse of process is properly engaged to prevent litigation that, if permitted to proceed, would violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.

The Supreme Court stated that “…re-litigation carries serious detrimental effects and should be avoided unless the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole”.

The Ontario Court of Appeal, in The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, said that re-litigating issues wastes judicial resources if the same result is reached, and it undermines the credibility of the judicial process if a different result is reached.

The focus of the analysis is on the integrity of the justice system. The doctrine of abuse of process is broad and flexible.


In the previous motion, Justice Sossin concluded that the plaintiff was only able to pursue one aspect of the claim – damages due to alleged delay by the defendant in completing the work.

In the Fresh as Amended Statement of Claim, the plaintiff pled various torts and a claim relating to unjust enrichment.

Justice Vella held that Justice Sossin had already ruled that the plaintiff could not pursue such claims. Further, the arguments advanced by the plaintiff on the current motion had already been made before Justice Sossin. It was an abuse of process to re-litigate these issues.

As a result, Justice Vella struck certain portions of the Fresh as Amended Statement of Claim.


This decision reiterates that pleadings that seek to re-litigate matters decided in previous proceedings will be struck as an abuse of process. This protects the integrity of the judicial process.