ALG's Samara Secter and Rebecca Amoah represented the successful appellant in a recent case from the Ontario Court of Appeal on the tort of abuse of process. In Konstan v. Berkovits, 2024 ONCA 510 the Court clarified how the tort interacts with criminal law: a private citizen must knowingly give misinformation or withhold evidence to compromise the investigation and limit the independence of the police's charging decision.
The appeal arose from a long history of competition among cash-for-gold businesses in Toronto. The New Yorker reported on the factual background to the case in 2011. In brief: Berkovits made a police report that Konstan had hired someone to kill or injure him; police charged Konstan but the Crown eventually withdrew her charges. Konstan sued Berkovits for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of emotional distress. The Court of Appeal overturned the trial judge's finding that Berkovits was liable for abuse of process and clarified the test for the tort.
Samara spoke to the Law Times regarding the outcome of the case:
“The crux of the case is ensuring that the tort of abuse of process doesn't prohibit access to justice, especially when it's required in terms of somebody’s safety. [...] If there is some basis for the claim or some basis to engage the police, it becomes difficult to meet the test of abuse of process. It ensures that individuals who genuinely believe they have information about a crime, they are not discouraged from reporting that crime to the police because they fear potential exposure to a tort claim, if it turns out that the information was inaccurate or incomplete.”
For more information please visit the Court of Appeal's decision or the Law Times article.