Nova Scotia Annotated Civil Procedure Rules

Part 17 - Administration

Rule 88 - Abuse of Process

Educational Notes

This Rule provides a procedure for controlling abuses of the court’s process and allows for a wide range of remedies, including dismissal or judgment, a stay, indemnification, striking or amending a pleading, expunging or sealing an affidavit, or an injunction. Vexatious litigants may be restrained from commencing further proceedings without permission of the court (R.88.02). Rule 88.05 allows the court to determine whether a claim amounts to an abuse of process before the rest of the claim is determined.

Rule 88 makes clear that unsustainable pleadings should be challenged under Rule 13 – Summary Judgment, rather than as an abuse of process.

88.05 - Separation of allegation that proceeding is abusive

88.05 Separation of allegation that proceeding is abusive

(1)   A judge may order that a defence or ground of contest alleging that a claim is an abuse of process be separated from the other issues raised in a proceeding and be tried or heard before the rest of the proceeding is determined.

(2)   A judge who is required to decide whether to separate a defence or ground of contest alleging abuse of process must consider all relevant factors, including each of the following:

(a)     whether facts to be found by the judge who determines the allegation of an abuse of process will also be in issue when the rest of the proceeding is determined;

(b)     if some facts will remain in issue, whether the benefit of avoiding a risk of contradictory findings of fact outweighs the disadvantage of continuing a proceeding, and conducting a trial or hearing in a proceeding, under an allegation that the proceeding itself is an abuse of the court’s process.

(3)   A judge who orders separation of a defence or ground of contest based on abuse of process may give directions for the determination of the defence or ground and, in an action, the directions may include that the determination continue under Rule 5 - Application.

Index Terms
  • Abuse of process allegation
  • Abuse of process allegation, in contest of Application
  • Separation of allegation that proceeding is abusive