Abuse of Process can be Applied to Regulated Individuals Too

Regulated individuals often argue that a regulator’s conduct (or inaction) amounts to an abuse of process. However, the doctrine applies equally to regulated individuals. In Lower v. Investment Industry Regulatory Organization of Canada, 2022 BCCA 285 (CanLII), https://canlii.ca/t/jrkxq an investment professional was disciplined for failing to cooperate with an investigation and was permanently barred from related activities. The individual did not seek to review the decision at the time. Nearly a decade later the individual brought an application to court for a declaration that the discipline proceedings were procedurally unfair. The Court dismissed the proceedings as an abuse of process. The Court said:

Judges have an inherent and residual discretion to prevent an abuse of the court’s process…. Abuse of process is a flexible doctrine. As noted by the judge, it may be invoked to prevent misuse of the court’s procedure in circumstances where it would be manifestly unfair to a party to the litigation before it or would in some way bring the administration of justice into disrepute…. The doctrine focuses less on the interests of the parties and more on the integrity of the administration of justice…. Excessive delay and promoting the public interest in finality may be factors to be considered in applying the abuse of process doctrine….

Regulated individuals must, too, use the Court’s processes fairly.

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