Wrong-Forum and “Abuse of Process”: Amstar (2025 ONCA 493) and Bernard Property (2019 ONCA 830)

A recurring feature of recent Rule 2.1 jurisprudence is the treatment of a jurisdictional or venue error—filing an appeal or motion in the wrong court—as itself constituting an "abuse of process." That characterization sits uneasily with the existence of recognized corrective mechanisms.

In Bernard Property Maintenance v. Taylor, 2019 ONCA 830, the Court of Appeal confirmed the ordinary appeal route from a single judge of the Divisional Court: a motion under s. 21(5) of the Courts of Justice Act. At the same time, the panel recorded the continued existence of a discretionary power to cure the defect.

At Bernard, para. 4:

[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: M. (P.) v. A. (M.), [2016] O.J. No. 6746, 2017 ONCA 6 (C.A.), at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties.

The decision therefore acknowledges two things simultaneously: the ordinary route is strict, but a legal mechanism remains available to reconstitute the panel and determine the matter on its merits when the court considers the circumstances warrant it.

An abuse of process ordinarily connotes a misuse of the court’s machinery—something improper, oppressive, or brought for a collateral purpose. A pure jurisdictional or venue error, by contrast, is a technical misrouting of a proceeding that may otherwise be entirely arguable on its merits.

Where the law itself supplies a corrective remedy, the characterization of the misrouting as an "abuse of process" becomes legally untenable. The existence of the remedy demonstrates that the justice system actively contemplates the possibility of curing the error, rather than treating it as inherently abusive. Once a recognized legal pathway remains open—even if rarely used—the act of filing in the wrong forum cannot, standing alone, meet the threshold of abuse.

Later panels have frequently cited the strict-route portions of Bernard Property while conspicuously omitting any reference to the corrective power acknowledged in the same decision. This selective application is explicitly documented in Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493:

[6] We agree with the landlord’s position. Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the appropriate avenue to challenge a decision of a single judge of the Divisional Court is by way of a motion to set aside or vary that decision before a panel of the Divisional Court. See, for example, Bernard Property Maintenance v. Taylor, 2019 ONCA 830, at paras. 2-3.

[7] Moreover, Shore J.’s order did not finally determine the tenant’s appeal on the merits. In paragraph 16 of her decision, Shore J. expressly stated that Mr. Tweneboa-Kodua “is entitled to continue their appeals even if the eviction is carried out.” As such, the appeal remains active and has not been finally resolved.

[8] Given the clear lack of jurisdiction, the motion for leave to appeal is frivolous and constitutes an abuse of process: Ncube v. Hassen, 2022 ONCA 840, at para. 15; Chowdhury v. Unity Health Toronto, 2025 ONCA 90, at para. 4.

In Amstar, the Court relies on Bernard Property to identify the technical venue defect, but bypasses the curative mechanism contained within that exact same precedent. A clear lack of jurisdiction is treated as sufficient, standing alone, to render the filing an abuse of process under Rule 2.1.

That approach collapses the strict boundary between a technical defect for which a legal remedy exists and conduct that actually abuses the process of the court. The former is a question of proper forum; the latter is a question of propriety of purpose or manner.

Equating the two expands Rule 2.1 far beyond the limits established by earlier authority, including Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, and Collins v. Ontario, 2017 ONCA 317, both of which explicitly cautioned against using the summary dismissal rule as a substitute for a motion to quash.

The existence of a recognized, if sparingly exercised, corrective power is doctrinally significant. It indicates that a wrong-forum filing is not, by its nature, an abuse of process. Where the law provides a means of curing the error, the error itself cannot simultaneously be treated as an abuse that justifies summary dismissal under Rule 2.1. The two characterizations are mutually exclusive.

By selectively omitting the curative powers acknowledged in Bernard Property, modern panels like those in Amstar have engineered a procedural paradox. They are invoking an extraordinary summary dismissal tool (Rule 2.1) to terminate technical venue errors, while actively bypassing the established legal mechanism designed to cure those exact errors.

Access the consolidated public records, dockets, and procedural analyses associated with this matter below.

Supreme Court of Canada (SCC)

• Formatted SCC Docket 42381
• Bulletin of Proceedings (Official)
• Official SCC Docket 42381

1. Case Overviews & Timelines

• Case Overview: Supreme Court of Canada Docket 42381, 2026 ONCA 246 and 2.1B (2025 ONCA 90)
• History of the Jurisdictional Defect in Chowdhury (2025 ONCA 90): Rule 2.1 Applied Twice
• “Or” vs. “Or Otherwise”: Scaduto (2015 ONCA 733), Raji (2015 ONSC 801), and the Language of Rule 2.1.01

2. Constitutional Limits & Delegated Authority

• Jurisprudence of the Administrative Reverse Onus: Rule 2.1 vs. Established Precedent
• Rule 2.1, Section 137.1 of the Courts of Justice Act, and the Administrative Reverse Onus
• Rule 2.1 and the Automatic Stay: A Procedural Tension with Rule 2.01
• O. Reg. 322/24: Form 2.1A and the 2024 Amendments to Rule 2.1
• The Reverse Onus of Rule 2.1: The Practical Effect of the Automatic Stay in O. Reg. 322/24
• Form 2.1B and the Reverse Onus: Colourability and the Limits of Delegated Authority

4. Jurisdiction, Forum & Procedural Mechanics

• Rule 2.1.01 and Jurisdiction: Simpson (2016 ONCA 806), Collins (2017 ONCA 317) vs. Chowdhury
• Jurisdiction and the Initiation of Rule 2.1 Dismissals
• Rule 21.01 vs. Rule 2.1.01: "A Judge" vs. "The Court"
• Case Conference and Management: Scheduling as Adjudication (2.1B)
• Jurisdictional Contrast: Alberta, Quebec, and British Columbia
• Amstar (2025 ONCA 493) and Ingarra (2026 ONCA 139): When Jurisdiction Becomes "Frivolous"

5. Family Rule 1.4 & Rule 2.1

• Rule 1.4, Rule 2.1 and the Rules of Procedure: Can Ontario's Rules Committees Override the Common Law?
• O. Reg. 310/26 and Family Rule 1.4: The Shifting Framework of Summary Dismissals

Statutory References

• Appendix: Rule 2.1 of the Rules of Civil Procedure — Statutory Reference via Ontario e-Laws