LA PROCEDURE ABUSIVE
AbstractA civil action for abuse of process is based on the abuse of the right to sue. It must be distinguished from liability for costs or professional discipline, which serves other purposes. Abuse of process covers a wide field including not only statements of claim, but also provisional proceedings, the execution of judgments, preliminary exceptions, defences and even criminal proceedings. Quebec, having hesitated between French law, where fault is a sufficient basis of the action, and the common law, where malicious intent is required, has now adopted the French position. Thus the action for abuse of process may come close to being a reexamination of the basis of the original litigation, with little attention being paid to the conduct of the parties. However, the arguments made on the merits of the original litigation are in the end a poor basis for deciding if there was an abuse of process, for the original litigation is reopened the results are not conclusive and distinctions are drawn between reasonable and unreasonable arguments, distinctions that are not tenable. Moreover, Quebec law requires that the original action fail before an action for abuse of process may succeed It is nonetheless possible that a successful litigant may have improperly exercised his right to sue.
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