Coulda, Shoulda? The SCC Expands The Abuse Of Process Doctrine In Behn v. Moulton Contracting Ltd.

In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Supreme Court of Canada (the "Court") expanded the doctrine of abuse of process to preclude parties which employed self-help remedies from raising as a defence various arguments which could and should have been advanced by commencing formal legal proceedings instead of taking self-help steps. Unlike in cases of res judicata, where similar principles arise, it was of no concern to the Court that there was no pre-existing litigation or proceeding in which the various legal arguments could have been advanced originally. In other words, the party was estopped from raising defences as its election to pursue self-help remedies over a formal legal proceeding would bring the administration of justice into disrepute.


This matter arises following the Crown's granting of authorizations to Moulton Contracting Ltd. ("Moulton") to harvest timber within the territory of the Fort Nelson First Nation (the "FNFN"). Individual members from the FNFN (the Behns) who opposed the authorizations erected a campsite to block road access to the logging sites. Moulton commenced a tort action against the individual members, and others, for interference with contractual relations. In their statement of defence, the Behns denied their conduct was unlawful as the authorizations granted by the Crown were illegal because: (a) the Crown's failed to fulfill its duty to consult with the FNFN; and (b) the authorizations infringed treaty rights to hunt and trap. Moulton brought applications to, among other things, have these portions of the Behns' defence struck out.

The British Columbia Supreme Court and Court of Appeal held that the impugned defences were an abuse of process. The BCSC reasoned the Behns could not be permitted to introduce the issue of invalidity of the authorizations as they should have applied for judicial review when the authorizations were granted. The Court of Appeal found the defences constituted an impermissible collateral attack on the authorization granted to Moulton as the FNFN had a number of legal avenues to challenge the authorizations.

The Behns sought to overturn the decision of the Court of Appeal with respect to standing and abuse of process. For a general overview of the Court's decision on all issues, including standing, see our May 10, 2013 'This Week at the SCC' post prepared by Kirsten Thompson here.

The Decision

With respect to the issues of abuse of process, the Court...

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