Abuse of Process (Tort)

Tractor Supply Co. of Texas v. TSC Stores LP, 2009 FC 154 (CanLII)

[25] Tractor Supply submits that the tort of abuse of process can only succeed if it can be proven both that: (1) the party initiated the legal process for a purpose other than it was designed to serve; and (2) the party has committed some definite, overt act in furtherance of that purpose, apart from commencement of the impugned proceeding.

[26] The requirement for an overt act to further an alleged improper purpose has resulted in the tort of abuse of process only succeeding in very rare circumstances. In Ontario, Tractor Supply submits that the requirement of an overt act has been strictly adhered to in order to prevent the misuse of the action. There must be, according to Atland Containers Ltd. v. Macs Corp. Ltd. et al. (1974), 1974 CanLII 864 (ON SC), 17 C.P.R. (2d) 16 at 19-20, a “definite act or threat in furtherance of such a purpose,” otherwise, “every plaintiff would be open to such a claim.”

[27] Tractor Supply says that both elements of the two-part test for the tort of abuse of process are also required in the Federal Court and that the Federal Court is only entitled to find a tort of abuse of process where there is both an improper purpose and a definite act or threat to further that purpose. See Amsted Industries Inc. v. Wire Rope Industries Ltd. (1988), 23 C.P.R. (3d) 541, Levi Strauss & Co. v. Timberland Co. (1997), 74 C.P.R. (3d) 49 (F.C.T.D.), and Levi Strauss.