A litigator’s main job is to follow the provisions of the Civil Code of Quebec in managing his or her litigation files, and thus to draft and present proceedings before the courts. However, some people, and even some lawyers, make improper use of these procedures. Interpreting the notion of abuse of process is not straightforward, despite the abundance of case law on the subject. Let’s look at the main elements of this notion.  

The judge’s power to sanction abuse of process may be exercised on request or ex officio and may relate to a claim or to any other procedural act. As stipulated in article 51 C.C.P., abuse may result from:

• an application or procedural act that is manifestly ill-founded, frivolous, or dilatory (def. that tends to delay by delaying);
• vexatious or querulous behavior (i.e., the thirst for justice of an individual who exercises his right to sue in an excessive or unreasonable manner);
• excessive or unreasonable use of procedure, or use of procedure to harm others;
• misappropriation of the ends of justice, particularly if this has the effect of limiting the freedom of expression of others in the context of public debate.

These elements are not exhaustive, as the judge has broad discretionary powers in matters of misuse of procedure.

Penalties in the event of a declaration of abuse of process

Article 53 of the C.C.P. sets out several possible sanctions: 

• Dismissal of the claim or of another procedural act;
• Withdrawal of a conclusion or demand for its modification;
• Refuse or terminate an examination;
• Cancel a subpoena;
• Impose conditions on any further steps in the judicial application or on the pleading;
• Require undertakings from the party concerned with respect to the orderly conduct of the proceeding;
• Stay the proceeding for the period it determines;
• Recommend that the chief justice or chief judge order special case management;
• Order the party that initiated the judicial application or presented the pleading to pay the other party, under pain of dismissal of the application or rejection of the pleading, a provision for costs, if the circumstances so warrant and if the court notes that, without such assistance, that other party’s financial situation would likely prevent it from effectively conducting its case.

The court may also impose pecuniary sanctions in accordance with article 54 C.C.P. :

• Reimbursement of an advance on costs ;
• Order a party to pay :
  • legal costs ;
  • damages for loss suffered (including legal costs and disbursements);
  • punitive damages, if justified by the circumstances.

Another important sanction, in the case of abuse resulting from querulous, article 55 C.C.P. provides: “(…) in addition to the other measures, prohibit the party from instituting a judicial application or presenting a pleading in an ongoing proceeding except with the authorization of and subject to the conditions determined by the chief justice or the chief judge”.

Illustrations

• A legal claim that has no legal basis; the contract binding the parties is clear, but the plaintiff acts despite it to obtain benefits to which he is not entitled under the contract.
• A frivolous and dilatory defense: the law and the facts are clear, the debtor owes money to the creditor since he hasn’t paid the monthly installments for more than 6 months, but he files a defense anyway just to gain time.
• A cantankerous person who wants to obtain justice at any price, feeling victimized by the system, and who multiplies his appeals before various jurisdictions.
• Summoning several witnesses whose presence is not necessary, which lengthens the trial and delays its presentation.
• Presenting numerous proceedings with the sole aim of damaging and financially exhausting the other party, who must invest time and money in responding to these proceedings.

“Winning at all costs” is certainly not a wise choice in law. Unnecessarily multiplying proceedings, adopting inappropriate behavior, making unreasonable demands… can lead to an unfortunate outcome and considerably harm the presentation of your case in court. We advise you to choose your lawyer carefully and, during your term of office, if you have any doubts about his or her approach, you have the right to seek advice from another lawyer or to change lawyers.