Tallman Truck Centre Ltd. v. K.S.P. Holdings Inc., 2021 ONSC 984

The plaintiff settled with only one of the two defendants in the action. The terms of settlement involved the settling defendant reversing its pleaded position, switching sides, and joining cause with the plaintiff. The plaintiff and the settling defendant failed to immediately disclose the settlement to the non-settling defendant. Certain aspects of the settlement were first disclosed three weeks after the agreement was reached. The non-settling defendant successfully brought a motion to permanently stay the action. Justice Myers reasoned that the Rules are clear with respect to a party switching sides from its pleaded position: such an agreement must be disclosed as soon as it is made. Prejudice to the non-settling defendant is not relevant. Failure to immediately disclose amounts to an abuse of process for which the only remedy is a stay of proceedings.

Kashani v. Algonquin College, 2018 ONCA 206

The Appellant commenced an action in Small Claims Court for breach of contract and then commenced a claim in the Superior Court that encompassed the same relief, but added a number of additional claims. Following a motion brought by the Respondent, the motion judge held that the claim failed to disclose a reasonable cause of action and was frivolous, vexatious, and an abuse of process. The Court of Appeal agreed and the Appellant’s Superior Court action was dismissed.

Wagner v. Fellows, 2017 ONSC 6979

Pursuant to the OAP1, certain benefits (including NEBs) are not payable to an occupant of an automobile who at the time of the MVA knew, or ought reasonably to have known, that the driver was operating the automobile without the owner’s consent. The Dominion wished to rely on this exclusion at trial. The Defendant sought an order precluding Dominion from relying upon the exclusion on the basis that it would be an abuse of process because Dominion had previously paid accident benefits to the Plaintiff. Justice Mullins denied the relief sought by the Defendant on the basis that NEBs were only paid to the Plaintiff as part of the accident benefits settlement and that the payment was made without prejudice to the insurer’s liability defences with respect to the tort claim.