Krist v. British Columbia

2017 BCCA 78 Krist v. British Columbia COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Krist v. British Columbia, 2017 BCCA 78 Date: 20170220 Docket: CA43541 Between: John Krist Appellant (Plaintiff) And Her Majesty the Queen in Right of the Province of British Columbia Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage On appeal from: An order of the Supreme Court of British Columbia, dated February 19, 2016 (Krist v. British Columbia, 2016 BCSC 494, Chilliwack Registry S30197). Counsel for the Appellant: D.A. Honeyman A. Carter, Articled Student Counsel for the Respondent: J. Van Camp Place and Date of Hearing: Vancouver, British Columbia February 3, 2017 Place and Date of Judgment: Vancouver, British Columbia February 20, 2017 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Goepel Table of Contents I. Introduction. 3 II. The Forfeiture Proceedings. 4 A. The Consent Order 4 B. Amended Order 4 C. Sewell Order 4 D. Possession Order 5 E. Silverman Order 5 III. The Current Proceeding.. 6 IV. The Application to Strike and Decision Below.. 7 V. Errors Alleged. 8 VI. Discussion and Analysis. 9 A. Assessment of Merits. 9 B. Implications of Sewell Order and Silverman Order 11 C. Participation in Forfeiture Proceeding. 13 D. Collateral Attack. 15 E. Abuse of Process. 17 F. Special Costs. 18 VII. Disposition. 19 Summary: Mr. Krist appeals a chambers decision granting an application to strike portions of Mr. Krist's notice of civil claim and awarding special costs. In the notice of civil claim, Mr. Krist argued the Director of Civil Forfeiture was negligent and breached his s. 7 Charter rights by failing to name Mr. Krist as a defendant in the forfeiture order and failing to involve him in forfeiture proceedings. The judge dismissed Mr. Krist's claims as an abuse of process on the basis that Mr. Krist tried to argue the same issues that were addressed by orders made in the course of the forfeiture proceedings, which were not appealed. Mr. Krist now appeals. Held: appeal dismissed. The judge did not err in finding that Mr. Krist fully participated in the forfeiture proceedings. The judge's finding that Mr. Krist's attempts to re‑litigate the same issues constitute an abuse of process deserves deference. There is no basis for interfering with the judge's discretion in awarding special costs in the proceeding below. Reasons for Judgment of the Honourable Mr. Justice Savage: I. Introduction [1] John Krist appeals a chambers decision granting the respondent's ("HMTQ") application to strike portions of Mr. Krist's notice of civil claim (the "NOCC") and granting HMTQ special costs. [2] In the NOCC Mr. Krist seeks damages from HMTQ in bringing and prosecuting a forfeiture proceeding under the Civil Forfeiture Act, S.B.C. 2005, c. 29, alleging negligence against the Director of Civil Forfeiture in failing to explicitly name Mr. Krist as a defendant. Mr. Krist says this failure to name him violated his s. 7 Charter rights, and resulted in a loss of his equity in certain property, as well as the loss of some gold and silver secreted in chattels on the property. [3] The forfeiture proceeding was brought in respect of a Mission property (the "Property") registered in the name of Mr. Krist's once common-law wife, Lois Lynne Griffey. The forfeiture proceeding followed a search of the property in March 2008 by the RCMP which disclosed dried marihuana and equipment commonly associated with a marihuana grow operation. Mr. Krist was charged in connection with the grow operation and acquitted of those charges in Provincial Court in 2012. II. The Forfeiture Proceedings [4] On 14 March 2011, the Director of Civil Forfeiture started forfeiture proceedings (the "Forfeiture Proceedings") that listed as defendant "The Owners and all Others Interested in the Property and in Particular Lois Lynne Griffey". To understand the order under appeal it is necessary to describe the various orders made in the Forfeiture Proceedings. A. The Consent Order [5] On 6 October 2011, a consent order was entered in the Forfeiture Proceedings (the "Consent Order"). The Consent Order provided the Property was forfeit to the Director, gave Ms. Griffey conduct of the sale, and ordered the sale proceeds be divided 20% to Mr. Miller in trust for Ms. Griffey and 80% to the Director. Mr. Miller, counsel for Ms. Griffey, approved the Consent Order on her behalf. B. Amended Order [6] On 23 October 2013, an application was made before Madam Justice Gropper to amend the 6 October 2011 order. The order was amended to give conduct of the sale to the Director (the "Amended Order"). The Amended Order in the preamble lists the appearances and refers to "Lois Lynne Griffey, appearing on her own behalf with John Krist". At the hearing before Madam Justice Gropper, Ms. Griffey and Mr. Krist took the position that they had not authorized the Consent Order. Madam Justice Gropper directed that there should be a separate application to determine whether to set aside the Consent Order. C. Sewell Order [7] On 18 November 2013, an application was filed by Ms. Griffey and Mr. Krist, who were represented by counsel, seeking to set aside the Consent Order on the basis that it was signed by Mr. Miller without authority from Ms. Griffey and Mr. Krist. Mr. Miller was subpoenaed, privilege was waived, and he gave evidence and was cross-examined. Ms. Griffey and Mr. Krist swore affidavits in support of the application. Justice Sewell dismissed the application with reasons on 26 February 2014. His order (the "Sewell Order") notes that Mr. Krist was represented, as the preamble refers to hearing "Joel Whysall, solicitor for Lois Lynne Griffey and John Krist". The Sewell Order was not appealed. D. Possession Order [8] On 21 January 2015 the Director obtained an order (the "Possession Order") from Madam Justice Russell requiring all persons in possession of the property "including Ms. Griffey and Mr. John Krist" to deliver vacant possession of the Property and remove all personal property by 31 March 2015. The Possession Order was enforceable by a Writ of Possession and the Director was authorized to dispose of any personal property left on the Property "without being liable therefore". [9] No one appeared at the hearing on behalf of Ms. Griffey or Mr. Krist but they had notice of the application and are referred to in the preamble to the Possession Order and in the body of the Possession Order as I have noted. The Possession Order was not appealed. [10] On the day before the Possession Order was obtained, Counsel for the Director was advised that a solicitor (Ms. Tonia Grace) was in the process of taking instructions from Mr. Krist and that counsel might be commencing an action against the Director on behalf of Mr. Krist outside the Forfeiture Proceedings and might be seeking to set aside the Consent Order. This information was communicated to Madam Justice Russell together with some of the history of the application for the Possession Order, which included an adjournment and ancillary orders requiring the production of a response to the application. E. Silverman Order [11] Mr. Krist applied to be added as a defendant in the Forfeiture Proceeding, which was returnable on 31 March 2015, the deadline for compliance with the Possession Order. Mr. Krist appeared with counsel (Mr. Hendery) before Mr. Justice Silverman, and argued that Mr. Krist should have been named as a defendant in the Forfeiture Proceeding because he had an unregistered beneficial interest in the Property. Counsel sought to have Mr. Krist added as a party saying "Well, I mean, if he is added as [defendant] the whole thing starts again" and that "under Rule 6‑2(8) the proceedings would start again". [12] Justice Silverman denied the application (the "Silverman Order"), noting that the Consent Order was a final order, that Mr. Krist had notice of the proceedings and that his interest had been at stake from early in the proceedings. He considered the application a collateral attack on the Consent Order and the Sewell Order. Importantly, the Silverman Order was not appealed. III. The Current Proceeding [13] On 16 November 2015 Mr. Krist commenced a civil claim against HMTQ seeking an interlocutory injunction and damages. An amended notice of civil claim was filed 15 December 2015. It alleges that the Forfeiture Proceedings as against Mr. Krist were fatally flawed; that the Director owed Mr. Krist a duty of care and the Director was negligent in failing to name him in the Forfeiture Proceedings. [14] Mr. Krist says the Director's negligence resulted in his loss of equity in the Property and the loss of valuable chattels. It was a breach of his s. 7 Charter rights. Mr. Krist says that a vehicle and shipping container on the property contained, inter alia, 420 ounces of gold (in the vehicle) and 1200 ounces of gold, 2500 ounces of silver, and coin and stamp collections (in the shipping container). Mr. Krist says that the forfeiture of the Property was a breach of his Charter rights and he claims Charter damages equivalent to the value of the property allocated to the Director in the Consent Order. IV. The Application to Strike and Decision Below [15] HMTQ brought an application to strike parts of the pleadings based on Rule 9‑5(1)(a) (no reasonable claim), (b) (unnecessary, frivolous, scandalous or vexatious), and (d) (abuse of process) of the Supreme Court Civil Rules. Mr. Justice Grist, after reviewing the history of the Forfeiture Proceedings said: [16] The Province's application to strike the impugned pleadings is brought pursuant to Rule 9‑5(1)(a), (b), and (d). Rule 9‑5(1)(a) relates to striking pleadings that disclose no reasonable claim. Rule 9‑5(1)(b) empowers striking pleadings that are unnecessary, frivolous, scandalous, and vexatious. Rule 9‑5(1)(d) allows pleadings to be struck if they are an abuse of the process of the court. [17] Counsel for Mr. Krist concedes that the order of October 6, 2011 and the subsequent orders including the order made by Madam Justice Russell on January 21, 2015, granting the Director vacant possession, are valid orders binding on Mr. Krist. The matters are well beyond any appeal and there is no turning back the fact that the property has been declared to be forfeit to the Director who is now entitled to vacant possession. [18] As a result of the following: 1. the decision of Mr. Justice Sewell that the October 6, 2011 forfeiture order should not be set aside based upon a finding that Mr. Miller acted with the actual authority given by both Mr. Krist and Ms. Griffey; and 2. the decision of Mr. Justice Silverman refusing to add Mr. Krist as a named defendant based on a finding that the Director had acted appropriately in framing the forfeiture action and because Mr. Krist did not initially or at any relevant time thereafter make known any beneficial interest or claim in the property. [19] It is clearly established there is no basis for claim in negligence against the Director, nor is there any basis for a claim for Charter remedy. There can be no negligence in drafting what the court has held to be an appropriate form of pleadings and, by the same logic, bringing the proper form of action cannot constitute a Charter breach. [20] It is also clear from another perspective that the action is misconceived. The decision of Mr. Justice Sewell established that the October 6, 2011 forfeiture order was entered by consent on the actual authority of Ms. Griffey and Mr. Krist. It is clear from the preamble to each of the orders that Mr. Krist was included in the notice process, and where the matter was spoken to, the orders followed Mr. Krist being given the opportunity to respond. [21] Throughout the course of the proceedings leading to a forfeiture order, Mr. Krist could have revealed any alleged beneficial interest and pressed to be named as a defendant. He could also have advanced the Charter arguments on his own behalf or in concert with Ms. Griffey, who was clearly in a position of having an obligation to safeguard Mr. Krist's position if, in fact, she was holding legal title when Mr. Krist had a beneficial interest. None of these options were taken and in the circumstances, there can be no detriment found, no basis for damages, because Mr. Krist was fully involved, given the opportunity, and if steps were not taken, the author of his own misfortune. [22] The impugned action could be labeled as a collateral attack on the now complete proceedings, as was found to be the case in respect of the application to be formally joined as a defendant but, in my view, the more appropriate finding is that in light of the above, the action as it relates to the forfeiture proceedings, specifically, the claim in negligence relating to the form of the forfeiture action and the Charter s. 7 claim, is an abuse of process. This part of the actions falls into the fourth category of an abuse of process listed in Babavic v. Babowech, [1993] No. 1802 (S.C.), a proceeding without a foundation and which serves no useful purpose. [Emphasis added.] [16] In the result, Mr. Justice Grist allowed the application, in part, to strike portions of Mr. Krist's amended notice of civil claim on the basis that the impugned pleadings were an abuse of process. V. Errors Alleged [17] Mr. Krist argues that the judge erred in dismissing his negligence and s. 7 Charter claims as an abuse of process in that the judge: (1) erred in law by engaging in an assessment of the merits of the appellant's case rather than taking the pleadings as true; (2) erred in fact and law in concluding that, as a result of the decisions of Sewell J. and Silverman J., the appellant's negligence and s. 7 Charter claims were without foundation and served no useful purpose; (3) erred in fact and law in concluding that the appellant had fully participated in the Forfeiture Action and that, as a result, his negligence and s. 7 Charter claims were without foundation and served no useful purpose; and (4) erred in fact and law in concluding that the negligence and s. 7 Charter claims could be considered a collateral attack on the completed Forfeiture Action. [18] Mr. Krist also challenges the judge's granting of special costs on the basis that he "made an unreasonable finding" based on his conduct in the proceeding. VI. Discussion and Analysis A. Assessment of Merits [19] Mr. Krist argues that on a motion to strike the analysis must proceed on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven, citing Imperial Tobacco at para. 22; Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160 at paras. 34, 37; and Hofer v. Hofer, 2013 MBQB 197 at paras. 9, 10. I do not view this as an accurate statement of the law. While a motion to strike based on subrule 9‑5(1)(a) does so proceed, that is not the case under subrules 9‑5(1)(b)‑(d). [20] Rule 9‑5(1), with which we are concerned, reads as follows: (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [21] Rule 9‑5(2) establishes the significantly distinguishing feature that no evidence is admissible on an application under subrule 9‑5(1)(a). An application under that subrule, then, proceeds on the assumption that the facts as pleaded are true. This assumption operates in favour of the party pleading: a party chooses what facts to plead with a view to the cause of action or defence being asserted: R. v. Imperial Tobacco Canada Inc., 2011 SCC 42 at para. 24. [22] The threshold to strike a pleading on the basis that it discloses no reasonable claim or defence has been variously described as "plain and obvious", "beyond a reasonable doubt", and having "no reasonable prospect of success": Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at pages 980, 990, Imperial Tobacco at para. 17. [23] Such an application will frequently involve an extricable question of law for which the standard of review is correctness: Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 at paras. 19, 23. On a motion to strike it is not determinative that the law has not yet recognized a particular claim or defence. The approach must be generous, permitting a novel but arguable claim to proceed to trial: Imperial Tobacco at para. 21. [24] In contrast, applications under subrules 9‑5(1)(b), (c) and (d) permit, and arguably require, external facts or evidence. That is because applications under those subrules are contextually driven and context must be provided to establish the required findings. Those findings require applying a legal standard or principle to a set of facts. [25] It was in the context of an application under subrule 9‑5(1)(d) that this Court emphasized deference in the review of discretionary orders: Timberwolf Log Trading Ltd. v. British Columbia, 2013 BCCA 24 paras. 19, 28. But whether deference is appropriate depends on context, as this Court made clear in Tangerine Financial Products Limited Partnership v. Reeves Family Trust, 2015 BCCA 359 at para. 37. In Timberwolf, the application proceeded on the basis of a complex and largely undetermined factual matrix (paras. 23‑25) while in Tangerine all the facts in relation to the struck claim were known (para. 44). [26] Applications proceeding under subrules 9‑5(1)(b)‑(d) may require proof of matters outside the litigation to establish context. For example, an applicant may seek to establish res judicata or issue estoppel, both of which rely on establishing that findings have been made in other proceedings which are inconsistent with the pleadings in the subject claim or defence. Where res judicata or issue estoppel do not apply, an applicant may rely on the more flexible doctrine of abuse of process. All of these applications require context, which entails the proof of matters outside the current litigation. [27] The cases that Mr. Krist cites deal with subrule 9‑5(1)(a) or its equivalent. In Imperial Tobacco the Court was referring to applications under subrule 19(24)(a), the predecessor to subrule 9‑5(1)(a), in discussing the principle that a motion to strike must proceed on the basis that the facts pleaded are true, unless manifestly incapable of being proven (paras. 17, 22). In Citizens the application to strike was also made under subrule 19(24)(a) (paras. 34‑37). Likewise the passages relied on in Hofer concern a discussion of an application to strike pleadings based on their not disclosing a reasonable cause of action or defence, under Q.B. Rule 25.11(d), an equivalent rule to 9‑5(1)(a). [28] In my view, an application under 9‑5(1)(d) does not require that the pleadings be accepted as true. The judge did not make the error alleged. B. Implications of Sewell Order and Silverman Order [29] The judge concluded that Mr. Krist's negligence and s. 7 Charter breach claims were without foundation and served no useful purpose, relying on the decisions of Justice Sewell and Justice Silverman. As I have said, neither of these decisions was appealed. Mr. Krist says that the judge erred in law in such conclusions, which are reviewable on a standard of correctness. [30] As I understand it, Mr. Krist argues that the current proceedings are open to him as neither Justice Sewell nor Justice Silverman addressed the central issues of the Director's negligence or breach of Charter rights. He also says that information is available now which was not available at the time of the Consent Order. [31] In the notice of civil claim Mr. Krist asserts that the Director failed to name him contrary to the "statutory duty" provided by s. 4(1)(b) of the Civil Forfeiture Act. Further, he argues that as a result of the failure to join him as a party, the forfeiture order is invalid. Much of the balance of the notice of civil claim takes issue with the results of the Forfeiture Proceedings. [32] The relief sought is, inter alia, to preserve "the status quo with respect to the Property pending determination of the claim". The negligence and breach of Charter right alleged is in the failure of the Director to name Mr. Krist as a party. [33] The application before Sewell J. was made by Mr. Krist and Ms. Griffey to set aside the Consent Order. The judge found that (1) in the fall of 2011, Ms. Griffey in consultation with Mr. Krist retained Michael Miller to assist in the defence of the forfeiture action; (2) Mr. Miller signed the Consent Order resolving the Forfeiture Action on behalf of Ms. Griffey; (3) Mr. Miller had ostensible authority to sign the Consent Order; and (4) the applicants had not established any ground upon which the Consent Order should be set aside. I should add that it was uncontested that Mr. Miller conferred with both Mr. Krist and Ms. Griffey prior to signing the Consent Order. [34] The application before Silverman J. was made by Mr. Krist to be added as a defendant to the Forfeiture Action. The judge rejected the proposition that the provisions of the Civil Forfeiture Act, which required the Director to name as a party "a person who the director has reason to believe is an unregistered owner" demanded that Mr. Krist be named as a defendant in the circumstances before him. The judge found that (1) it had been conceded that there was no basis upon which the Director might have had the belief that Mr. Krist was an unregistered owner before the Consent Order was made; (2) neither Mr. Krist nor Ms. Griffey informed the Director that Mr. Krist was an unregistered owner of the Property until they prepared affidavits on November 18, 2013, in preparation for the application to set aside the Consent Order; and (3) it was within Mr. Krist's knowledge and authority to have advised the Director of his purported interest in the Property before the Consent Order was made and his failure to do so (and Ms. Griffey's failure to do so) led to the Consent Order. [35] I find it difficult to understand Mr. Krist's position on the "central issues". He seems to argue that the Director should have known Mr. Krist had an interest in the Property and should therefore have named him expressly in the Forfeiture Proceeding, and that the Director's failure amounts to negligence and a breach of his Charter rights, and should give rise to, inter alia, damages. Mr. Krist thus attacks the Consent Order. [36] These arguments, in my opinion, ask the court to make findings contrary to Justice Silverman's findings in the application leading to his order, and to resurrect issues regarding the validity of the Consent Order, which Justice Sewell refused to set aside upon Mr. Krist's application. In my view, the central issues have already been addressed in proceedings where Mr. Krist was represented by counsel and had a full opportunity to advance his position. C. Participation in Forfeiture Proceeding [37] Mr. Krist says the Chambers Judge erred in fact and law in finding that he "fully participated" in the Forfeiture Proceeding. He says the Chambers Judge mischaracterized Sewell J.'s findings. [38] Mr. Krist particularizes the erroneous findings on full participation as (1) finding that the Consent Order was entered into with Mr. Krist's ostensible and actual authority, and (2) by including Mr. Krist by name in the preamble to the orders in the Forfeiture Proceeding he was provided an opportunity to respond. [39] With regard to actual and ostensible authority Justice Sewell said: [28] In this case, I am satisfied that Mr. Miller had ostensible authority to enter into the settlement and that no limitation on his authority, if any existed, was disclosed to the Director's counsel at any time before the consent order was entered and acted upon. [30] I am also of the view that the evidence does not show that Mr. Miller acted without actual authority when he signed the order. Neither applicant before me stated in their affidavits that they did not agree to the settlement terms embodied in the consent order. The language of the affidavits of both applicants is carefully drafted and quite limited. If focuses entirely on the form of the order and says nothing about the substance of the settlement embodied by that order. [Emphasis added.] [40] As I read it, the finding that Mr. Miller had authority applies to both Ms. Griffey and Mr. Krist. Earlier in his reasons the judge referred to affidavits filed by Ms. Griffey and Mr. Krist. Mr. Krist described the engagement of Mr. Miller as counsel in these terms: 5. I knew Michael Miller as a personal friend and a lawyer and so I approached him to discuss the situation. 6. He agreed to take the case. 7. He spoke to both Ms. Griffey and myself about the case. 8. In summer and fall of 2011, Ms. Griffey and myself spoke to him regarding an order. [Emphasis added.] [41] In the proceedings before Mr. Justice Silverman, counsel (Mr. Hendery) advised the Court: Mr. Krist and Ms. Griffey hired counsel when they found out in March '11 that proceedings had began. That was March 14th, '11, the proceedings began. Three years later, after the police searched the property in 2008, alleged unlawful activity, and three years later proceedings began for forfeiture for the Degraff property. Mr. Krist and Ms. Griffey hired counsel. In 2011 a consent -- the preservation order was made in August, the consent order was made in October " [42] It should be emphasized that the application before Mr. Justice Sewell was made by both Ms. Griffey and Mr. Krist to have the Consent Order set aside. The judge was being asked to set aside the Consent Order on the basis that neither Ms. Griffey nor Mr. Krist had consented to the order. The application was dismissed. [43] The Chambers Judge found that "It is clear from the preamble to each of the orders that Mr. Krist was included in the notice process, and where the matter was spoken to, the orders followed Mr. Krist being given the opportunity to respond". The Sewell Order says "on hearing Joel Whysall, solicitor for Lois Lynne Griffey and John Krist". In the Silverman Order Mr. Krist is the applicant. Mr. Krist appeared before Madam Justice Gropper when the Possession Order was granted. I have outlined above his participation in the proceedings which gave rise to the Consent Order. [44] Mr. Krist argues that because he was not separately represented throughout the Forfeiture Proceedings he did not fully participate in those proceedings. I disagree. He was involved in retaining counsel (Mr. Miller) at the outset and conferred with counsel leading up to the Consent Order, and was variously represented (by Mr. Whysall, Ms. Grace, Mr. Hendery) in the continuation of those proceedings. Not being separately represented throughout does not mean that Mr. Krist did not fully participate. In my view the Chambers Judge made no error in finding that Mr. Krist had "fully participated" in the Forfeiture Proceedings. D. Collateral Attack [45] Mr. Krist argues that the Chambers Judge erred in concluding that the negligence and Charter claims were a collateral attack on the Consent Order, the Sewell Order and the Silverman Order. He cites the SCC's decision in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, and this Court's decision in Leroux v. Canada (Revenue Agency), 2012 BCCA 63, in support of his position. [46] In my view, TeleZone and Leroux ought to be distinguished from the case at bar. The SCC in TeleZone described the purpose of the collateral attack doctrine as being to prevent a party from avoiding the consequences of an unfavourable decision. In this respect, the Court stated: [60] The Court has described a collateral attack as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. (Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599) [61] The rule is a judicial creation (which must therefore yield to a contrary legislative enactment) based on general considerations related to the administration of justice, as explained in Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 , at para. 72: The fundamental policy behind the rule against collateral attack is to "maintain the rule of law and to preserve the repute of the administration of justice" (R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 349). The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system. Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [47] To determine whether a claim constitutes a collateral attack, the court should inquire into whether the claim, or any part of the claim, is "in effect" an appeal of an order (Leroux at para. 19). As I see it, Mr. Krist in both the pleadings and in argument seeks to effectively appeal findings made in the Forfeiture Proceedings. [48] In TeleZone and Leroux, the claimants raised separate and distinct justiciable issues. They did not question the validity of the underlying orders; rather they sued for damages in tort. Mr. Krist claims there are separate and distinct justiciable issues before this Court, specifically that the Director's refusal to involve him in the Forfeiture Proceedings and allow him an opportunity to respond was contrary to its statutory obligations and amounts to bad faith. Whether the Director fulfilled the statutory obligations was precisely the issue Mr. Krist raised before Silverman J. [49] "In effect" Mr. Krist continues to attempt to re‑litigate the same issues (the failure to name him in the forfeiture action and the alleged consequential failure to allow him to participate in the process) yet he did not appeal the decisions that refused his application to set aside the Consent Order (the Sewell Order) or the decision that refused his application to be a named party in those proceedings based on the statutory provisions of the Civil Forfeiture Act (the Silverman Order). [50] In my view, the Chambers Judge would not have erred in concluding that Mr. Krist's actions constitute a collateral attack on the Consent Order, the Sewell Order and the Silverman Order. However, the Chambers Judge did not rely on the rule against collateral attack as the basis for his decision. Instead, he relied on the abuse of process doctrine. In that regard, he said: [22] The impugned action could be labeled as a collateral attack on the now complete proceedings, as was found to be the case in respect of the application to be formally joined as a defendant but, in my view, the more appropriate finding is that in light of the above, the action as it relates to the forfeiture proceedings, specifically, the claim in negligence relating to the form of the forfeiture action and the Charter s. 7 claim, is an abuse of process. This part of the actions falls into the fourth category of an abuse of process listed in Babavic v. Babowech, [1993] No. 1802 (S.C.), a proceeding without a foundation and which serves no useful purpose. [Emphasis added.] [51] The Chambers Judge ordered special costs because the claim amounted "in many of its aspects, to an abuse of process" (para. 38). E. Abuse of Process [52] The abuse of process doctrine allows the courts to dismiss actions in circumstances where the court process is used for improper purposes. Abuse of process is a flexible doctrine unencumbered by specific requirements. It is directed to prevent actions that violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. In Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, Arbour J. said: [42] The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court's process . [Emphasis added.] [53] The doctrine of abuse of process involves elements of discretion. On appeal, the application of that doctrine by a trial judge to specific circumstances, as occurred here, is entitled to deference, unless there is some extricable question of law. In my view there is no extricable question of law. [54] The Chambers Judge recognized that Mr. Krist fully participated in the Forfeiture Proceedings. It was open to Mr. Krist to assert his interest in the Property at the very outset. He was aware that a settlement of the Forfeiture Proceedings was achieved by the Consent Order which he unsuccessfully attacked in the proceedings giving rise to the Sewell Order and the Silverman Order. In his affidavit before the Chambers Judge Mr. Krist said " I have been following developments in the case closely ." [55] Mr. Krist says that he has new information that the Director, having access to the RCMP files, would have had documents showing Mr. Krist had an interest in the Property beyond the 20% allowed to Ms. Griffey in the settlement. He says that the 20% allowed to Ms. Griffey was not a "good deal". However the information Mr. Krist has is not new, but information he had or should have had all along, and is not the proximate cause of any loss he might have. [56] In my view there is no basis to interfere with the discretion the Chambers Judge applied here, grounded, as it was, in principles of judicial economy, consistency, finality and the integrity of the administration of justice. As I can see no basis on which the Chambers Judge erred in the application of the doctrine of abuse of process to the circumstances here, I would dismiss the appeal. F. Special Costs [57] Mr. Krist's attack on the order for special costs largely rests on his arguments with respect to the merits of the appeal. There is no disagreement on the test for special costs. [58] Cost awards are discretionary and entitled to deference: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at para. 27. In Hartshorne v. Hartshorne, 2011 BCCA 29, this Court said: [23] Given the discretionary nature of an award of costs, appellate review of such an award is limited. An appellate court may only interfere with an award of costs if it can be demonstrated that "the trial judge has made an error in principle or if the costs award is plainly wrong": Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27, quoted in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282 at para. 72. [59] I see no basis for interfering with the discretion of the Chambers Judge in this case. VII. Disposition [60] In the result, I would dismiss the appeal but with ordinary costs. Special costs are rarely awarded on an appeal and I see no basis for awarding them here. "The Honourable Mr. Justice Savage" I agree: "The Honourable Madam Justice Newbury" I agree: "The Honourable Mr. Justice Goepel"