Bank of Montreal v. Basant Motors Ltd.

Bank of Montreal v. Basant Motors Ltd.

The abuse of process claim was struck because the Counterclaim failed to plead an improper collateral purpose distinct from the relief sought in the Notice of Civil Claim and failed to plead material facts establishing damages; therefore the pleaded elements of the tort were not present. The court granted leave to amend limited to a proposed claim for breach of the duty of honest performance and dismissed the other strike and disclosure restraint applications.

Citation
2019 BCSC 748
Parties
Plaintiff / Defendant by Counterclaim: Bank of Montreal; Defendant / Counterclaimant: Basant Motors Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
14 May 2019
Procedural Posture
Civil: Breach of Contract; Negligent and Fraudulent Misrepresentation; Counterclaim Alleging Tort of Abuse of Process / Pre Trial Motions Under Supreme Court Civil Rules (applications to Strike Pleadings and for Disclosure)
Outcome
Part of Counterclaim (abuse of process claim) struck; remainder of Counterclaim stayed with leave to amend limited to a duty of honest performance claim within 21 days; BMO's applications to strike specific response paragraphs 11-17 and to strike paragraphs 13-15 for settlement privilege dismissed; Basant's...
Legal Topics
Abuse of Process, Duty of Honest Performance (bhasin), Striking Pleadings, Settlement Privilege, Document Disclosure
Source Language
English
Contract Tort Civil Procedure Evidence (privilege and Disclosure) Abuse of Process Duty of Honest Performance (bhasin) Striking Pleadings Settlement Privilege +1 more

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Parties

Bank of Montreal

Plaintiff / Defendant by Counterclaim

Basant Motors Ltd.

Defendant / Counterclaimant

Procedural Posture

Civil: Breach of Contract; Negligent and Fraudulent Misrepresentation; Counterclaim Alleging Tort of Abuse of Process / Pre Trial Motions Under Supreme Court Civil Rules (applications to Strike Pleadings and for Disclosure)

Legal Issues

  1. 1 Whether Rule 9-5(1)(a) application to strike counterclaim is appropriate at this stage
  2. 2 What are the essential elements of the tort of abuse of process (whether a collateral/improper purpose and overt act/threat and damages are required)
  3. 3 Whether the Counterclaim pleads an improper collateral purpose distinct from the relief claimed

Ratio Decidendi

The abuse of process claim was struck because the Counterclaim failed to plead an improper collateral purpose distinct from the relief sought in the Notice of Civil Claim and failed to plead material facts establishing damages; therefore the pleaded elements of the tort were not present. The court granted leave to amend limited to a proposed claim for breach of the duty of honest performance and dismissed the other strike and disclosure restraint applications.

Court Disposition

Part of Counterclaim (abuse of process claim) struck; remainder of Counterclaim stayed with leave to amend limited to a duty of honest performance claim within 21 days; BMO's applications to strike specific response paragraphs 11-17 and to strike paragraphs 13-15 for settlement privilege dismissed; Basant's...

Orders

  • Counterclaim allegations advancing a claim for the tort of abuse of process are struck out.
  • Proceedings on the remainder of the Counterclaim are stayed and Basant is granted 21 days to apply to amend its Counterclaim to plead damages for breach of the duty of honest performance; if no amendment is advanced, the Counterclaim will be dismissed.