OPABIN SAND AND GRAVEL INC v VINCI GEOINFRASTRUCTURE CANADA LIMITED

The Appellant, Opabin Sand and Gravel Inc. (“Opabin”), appealed a Chambers Judge’s dismissal of its Application to Strike the Amended Counterclaim of the Respondent, VINCI GeoInfrastructure Canada Limited (“VINCI”), pursuant to Rule 3.68(2)(b).

The Amended Counterclaim alleged that Opabin was liable for the torts of abuse of process and conversion arising from a claim under the Public Works Act, RSA 2000, c P-46 (the “PWA”) and a related Action. The Applications Judge struck VINCI’s Amended Counterclaim, finding that it disclosed no reasonable claim. On Appeal, the Chambers Judge reversed that decision, concluding that the pleaded claims were arguable.

The Court reviewed the test under Rule 3.68, confirming that the question is whether, assuming the pleaded facts are true, it is plain and obvious that the pleading discloses no reasonable claim. The Court emphasized that bare allegations of misconduct unsupported by material facts or reasonable particulars are insufficient to withstand an Application to strike. The Court also noted that whether a pleading discloses a cause of action is a question of law, reviewable on the correctness standard.

Applying those principles, the Court held that the Amended Counterclaim failed to disclose a reasonable claim for abuse of process. The Court confirmed that the tort requires, among other things, an indirect, collateral, and improper purpose together with a definite act or threat in furtherance of that purpose. The Court held that VINCI's allegations did not disclose an improper collateral purpose. Further, allegations in the Amended Counterclaim were unsupported by material facts, and therefore amounted to bare assertions, or lacked reasonable particulars. Accordingly, the Court held that the Amended Counterclaim failed to plead the essential elements of the tort of abuse of process.

The Court also held that the Chambers Judge erred in permitting the conversion claim to proceed. Issuing a notice under the PWA invoked a statutory process to determine entitlement to funds and, as a matter of law, did not constitute a wrongful interference with property capable of amounting to conversion.

In the result, the Court allowed the Appeal and struck the Amended Counterclaim pursuant to Rule 3.68(2)(b).