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Toronto (City) v C.U.P.E., Local 79, [2003] 3 S.C.R. 77


O worked for P. O was charged w/ sexual assault. O testified, and was crossed in front of a judge. O was convicted. D fired O, and O grieved the dismissal. Arbitrator let crim testimony come in. Came to conclusion O was dismissed w/o cause. Arbitrator said crim conviction was a rebuttable presumption. Here the victim of sexual assault did not testify in the arbitration, O did.


The doctrine of abuse of process may be used either defensively or offensively


*1st 2 requirements for issue estoppel are satisfied – the final requirement is not met.
**In the original case the case was between the Crown and O – in arb it was P and D
**Crown is not privy w/ Toronto

*The 3rd requirement – mutuality – has been largely abandoned by the US
*This case is “non-mutual offensive preclusion”
**Defensive preclusions helps to reduce litigtion
**Offensive preclusion encourages potential Ps not to join in the 1st action – w/o some limit would increase amount of litigation
**In some circumstances to permit non-mutual preclusion would be unfair to the D – situations:
***D may have little incentive to defend vigorously the 1st action
***If judgment relied on is insufficient
***2nd action affords D procedural opportunities unavailable in 1st action

*Judges have discretion to prevent an abuse of process
**Court has inherent power to allow someone or not to use their process – and here the way O was trying to use the process was wrong – allowing O to use the process in this way would bring the admin of justice into disrepute

*Abuse of process = unfair to the point that they are contrary to the interest of justice – oppressive treatment

*Abuse of process may be established where:
**Proceedings are oppressive or vexatious
**Violate the principles of justice underling the community’s sense of fair play and decency

*Trying to argue something was abuse of process – what will you look for?
**Look at it from public interest standpoint
***Rather than focuses on the motive or status of the parties, abuse of process concentrates in the integrity of the adjudicative process
**Ex – this case the employer would have to justify employing a child sexual offender to work w/ kids
**Standard for abuse of process – community (the reasonable observer) sense of fair play and decency

*Unreasonable delay causing serious prejudice could = abuse of process (Blencoe)

*Litigation before court is found to be in essence an attempt to relitigate a claim = abuse of process
**Abuse of process used to preclude relitigation where the requirements of issue estoppel have not been met

*No reason to constrain abuse of process only to those cases where the P has initiated the re-lit

*Discretionary factors for issue estoppel equally apply to abuse of process


Abuse of process applies – P did have just cause to fire O

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