Understanding Abuse of Process in the context of Bylaw Enforcement

By Sunny Uppal

Are you entitled to an order requiring the local government to immediately stop bylaw enforcement proceedings?

An abuse of process is a legal doctrine designed to prevent the misuse of the court’s procedures in a manner that is unfair to a party or brings the administration of justice into disrepute. This doctrine is flexible and can be applied in various contexts, including in the context of bylaw enforcement where the doctrine could potentially allow the court to order a local government to immediately stop bylaw enforcement proceedings.

In the context of local governments, the abuse of process doctrine is designed to prevent a local government from inflicting “abuse” against an individual (or a group of individuals). A local government’s conduct or processes may be considered “abusive” in situations where a fundamental principle of justice underlying the community’s sense of ‘fair play and decency’ has been violated or where the enforcement proceedings have become so ‘oppressive or vexatious’ that to continue the proceedings would harm the integrity of the administration of justice.^[1] This may occur when a local government has:^[2]  

• acted in bad faith or pursuant to an improper motive; or
• engaged in conduct that is so “exceptional in nature that it demands the local government explain itself.”

Generally speaking, there are two categories of “abuses” when it comes to the doctrine of abuse of process. These categories are as follows:^[3]

1. an abuse that compromises the fairness of an accused’s trial; or
2. an abuse that risks undermining the integrity of the judicial process.

Importantly, should an accused successfully establish that the local government has engaged in an abuse of process, the Court will then embark on an inquiry into the reasons underlying the local government’s abuse and require the local government to explain its conduct. If the local government fails to provide an explanation, an adverse inference may be drawn against the local government.^[4]

The logical questions that follow from the above are: (a) At what point, or in what circumstances, will a local government’s conduct, and/or a local government’s process, amount to an ‘abuse’ that triggers the doctrine of abuse of process and (b) when will the court order a local government to immediately stop bylaw enforcement proceedings.
 
a) At what point, or in what circumstances, will a local government’s conduct, and/or a local government’s process, amount to an ‘abuse’ that triggers the doctrine of abuse of process?

There is no legal test a Court will look to in determining whether an ‘abuse’ has occurred. Rather, the court will look at a host of potential factors. Prosecutorial misconduct and improper motivation are just two factors (instructive rather than determinative) the court will consider.^[5] The following are some circumstances in which the court may find that a local government has engaged in an abuse of process: 

• the local government commences a municipal prosecution to recover a civil debt;
• a bylaw officer engages in illegal conduct;
• the local government reneges on a consent plea order; and
• the local government deliberately destroys/hides evidence.

b) When will the court order a local government to immediately stop bylaw enforcement proceedings due to the local government’s abuse of process?

The court’s focus in abuse of process cases is to remedy the harm caused by the local government’s abuse. The court will only order that a local government immediately stop bylaw enforcement proceedings in the “clearest of cases.”^[6] The test the Court will use to determine whether a stay of proceedings is warranted in the circumstances is as follows:^[7]

1. there must be prejudice to the accused’s right to a fair trial, or the integrity of the justice system, that “will be manifested, perpetuated or aggravated” through the conduct of the trial, or its outcome;
2. there must be no alternative remedy capable of redressing the prejudice; and
3. where there is still uncertainty over whether a stay is warranted after steps 1) and 2), whether a balancing of the interests in favor of granting a stay (such as denouncing misconduct and preserving the integrity of the justice system) outweigh the interest that society has in having a final decision on the merits.

Conclusion

To summarize, if the Court finds that a local government’s conduct and/or local government processes have violated principles of fundamental justice (i.e. the community’s sense of fair play and decency, ‘oppressive or vexatious proceedings,’ etc.) and/or Charter guarantees (i.e. unreasonable delay, etc.), the court will determine the local government’s conduct amounts to an abuse of process. The local government will then need to justify its conduct. The court has various remedies available to it to remedy harm that has been caused by the local government’s abuse. Only in the “clearest of cases” will the court order that a local government immediately stop bylaw enforcement proceedings.

—

[1] R v. Nixon, 2011 SCC 34.
[2] R. v. Delchev, 2015 CarswellOnt 7679.
[3] R v. Babos, 2014 SCC 16 at para. 31.
[4] R v. Delchev, 2015 CarswellOnt 7679 at para. 55.
[5] R v. Keyowksi, 1988 CarswellSaska 273 (S.C.C.) at para 3.; Canada (Attorney General) v. Barnaby, 2015 CarswellQue 3758 (S.C.C.).
[6] Canada (Minister of Citizenship & Immigration) v. Tobias, [1997] 3 S.C.R. 391 (S.C.C.); R v. Regan, 2002 SCC 12 at para. 17; R v. Berube, 2012 CarswellBC 2467 (B.C.C.A.).
[7] R v. Babos, 2014 SCC 16 (S.C.C.) at para. 32.

—

While navigating and understanding your legal rights or responsibilities can feel overwhelming, the Dispute Resolution and Commercial Litigation Department at McQuarrie is here to help.

Please feel free to contact us with any questions or concerns you may have related to your legal rights.