In this case, an action in damages instituted by an employer against two of its former employees for abuse of process was dismissed by the Court of Québec, which held that the simple act of filing unfounded actions was not wrongful in and of itself.

The defendants, Mr. Créa and Ms. Tavella, who are husband and wife, were employed by the plaintiff company, Aliments Da Vinci Ltée, for several years. In March 2002, the employer eliminated Mr. Créa's position, giving him pay in lieu of notice for termination of his employment.

During her husband's notice period, Ms. Tavella, who was still working for the employer, filed a psychological injury claim with the Commission de la santé et de la sécurité du travail (CSST), claiming that she had been the victim of her new supervisor's rude and intimidating behaviour. The claim was initially denied by the CSST, but was later allowed on appeal. Ms. Tavella also filed a discrimination complaint with the Commission des droits de la personne et des droits de la jeunesse (CDPDJ), claiming that she had been the victim of the new supervisor's sexist behaviour. A representative of the CDPDJ conducted an investigation with respect to the allegations contained in the complaint, questioning the company's management and employees. The employer claimed that the investigation disrupted its observations. Ms. Tavella resigned from the company on August 19, 2002.

At the same time that his wife was filing the above complaints, Mr. Créa also filed a complaint against the employer for dismissal without good and sufficient cause (pursuant to section 124 of Quebec's Act respecting Labour Standards). An out-of-court settlement was reached under which Mr. Créa would be paid an amount of $2,000. However, when the cheque was sent to Mr. Créa in March 2003, he refused to cash it, claiming that the amount was insufficient.

On April 26, 2004, the CDPDJ closed its file on Ms. Tavella's discrimination complaint, having concluded that the supervisor had behaved in the same manner towards men and women of the company, without discrimination.

In response to the various legal actions taken by Mr. Créa and Ms. Tavella, the employer filed an action for damages in the Court of Québec in order to obtain, amongst other things, compensation for the legal fees it had incurred to defend itself. The employer's position was that it had been the victim of a vendetta at the hands of its former employees.

In response to this suit, the defendants filed a counterclaim for damages against their former employer. More specifically, Mr. Créa claimed $60,300 from the company as payment in lieu of notice for termination of his employment, as well as moral damages. Ms. Tavella, alleging that she had been the victim of harassment by her employer, claimed two months' notice and damages of $65,000.

After examining the evidence submitted by the parties, the Court of Québec dismissed the employer's case against its former employees. Judge Louise Comeau held that the employer had not established that the defendants had exercised their rights in bad faith. She also held that the mere fact that the CDPDJ had not allowed the complaint for discrimination filed by Ms. Tavella was not sufficient, in and of itself, to determine that there had been abuse of process. In addition, although the counterclaims of the defendants were also dismissed, Judge Comeau added that these proceedings could not be considered as evidence of abuse of process, as they had been taken in response to the action filed by their former employer. Indeed, according to Judge Comeau, merely pursuing unfounded actions was not a wrongful act for which the defendants could be held liable.

The principles for the granting of extrajudicial fees (such as attorneys' fees) pursuant to an action for abuse of process were set out in the decision of Sigma Construction2. In Sigma, the Quebec Court of Appeal held that while the losing party will normally have to pay the costs of the trial, in exceptional circumstances it may be held to pay the extrajudicial fees incurred by the other side. For this to occur in civil proceedings, the party seeking costs must prove actual abuse of process. Examples would include (1) putting forward a non-existent right, (2) instituting a multiplicity of dilatory or frivolous proceedings, or (3) instituting a proliferation of actions intended to cause the opponent to incur costs for no reason - and doing these things in bad faith. However, the Court of Appeal noted that, as a general rule, contesting an action or making a counterclaim does not constitute abuse of process.

The principles set out in Sigma Construction were reiterated a few years later in another Court of Appeal decision3 according to which a party that abuses its right to take legal action causes an actionable harm to an opposing party who, in order to defend the case, is forced to unnecessarily pay legal fees. The causal link between the fault and the harm in this situation is clear and sufficient. However, the Court drew a distinction between this situation and cases where the theory put forward by a party is weak but does not necessarily constitute an abuse of the right to sue.

In conclusion, the mere dismissal of a complaint or an action by the courts is not sufficient, in and of itself, to make an employee liable. Therefore, while we believe that the Aliments DaVinci case does not close the door to an action in damages against an employee, it does mean that employers must be cautious. Prior to suing an employee for abuse of process, an employer must first objectively determine whether it will be able to prove bad faith conduct of the employee that goes beyond simply instituting legal proceedings.

1Aliments Da Vinci ltée v. Tavella, D.T.E. 2007T-304 (C.Q.).

2Sigma Construction inc. v. Ievers, J.E. 95-1846 (C.A.).

3Viel v. Entreprises immobilières du terroir ltée, [2002] R.J.Q. 1262 (C.A.).