|
Abuse of Process - Re-litigation (2). Patrick Street Holdings Ltd. v. 11368 NL Inc. [res judicata as a rule of evidence]
In Patrick Street Holdings Ltd. v. 11368 NL Inc. (SCC, 2026) the Supreme Court of Canada considered 'cause of action estoppel'.
Here the court broadly considers res judicata, it's elements of cause of action estoppel and issue estoppel, and the closely-related doctrine of abuse of process by re-litigation:[32] Res judicata is one of several common law doctrines — including the doctrine of collateral attack and the doctrine of abuse of process by relitigation — that exist to prevent abuse of the judicial decision-making process (Danyluk, at para. 20; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 22). The doctrine provides that a dispute, once decided finally between parties, is not subject to relitigation by those parties (Danyluk, at para. 20; Hoque v. Montreal Trust Co., 1997 NSCA 153, 162 N.S.R. (2d) 321, at para. 21).
[33] There are two branches of res judicata: cause of action estoppel and issue estoppel (Angle v. M.N.R., 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 254; Toronto (City), at para. 23). Cause of action estoppel bars the relitigation of a cause of action by either party, whereas issue estoppel precludes a litigant from rearguing an issue that was “fundamental to the decision arrived at” in a prior proceeding (Angle, at p. 255, citing Hoystead v. Commissioner of Taxation, 1925 CanLII 607 (UK JCPC), [1926] A.C. 155 (P.C.), at p. 165).
[34] Res judicata is and has long been a rule of evidence (S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶19.86). Historically, when res judicata became part of English law in the 12th century, it was referred to as estoppel by matter of record — that is, estoppel arising from the written record of a court (Angle; W. S. Holdsworth, A History of English Law (3rd ed. 1944), vol. IX, at p. 147; W. Freedman, Res Judicata and Collateral Estoppel: Tools for Plaintiffs and Defendants (1988), at p. 7). Matters “solemnly recorded” by the court had to be “accepted as proof, so that no averment to contradict them [could] be received” (Holdsworth, at p. 147). In this sense, estoppel by matter of record permitted the admission of a court’s decision as proof of the findings contained therein (p. 147). A plea of estoppel involved producing the decision said to give rise to the estoppel in the subsequent proceeding to allow a court to conclude that the matters at issue in the prior proceeding were the same matters at issue in that proceeding (A. Caspersz, Estoppels and the Substantive Law (4th ed. 1915), at p. 460).
[35] While now referred to as res judicata, the doctrine remains a rule of evidence that applies to estop a party from introducing evidence to contradict a result that has been decided in a prior proceeding (Lederman, Fuerst and Stewart, at ¶19.86).
[36] While res judicata is a rule of evidence, it is designed to advance the interests of justice (Danyluk, at para. 19). The doctrine is founded on two overarching principles of public policy: a litigant’s interest in fairness, and society’s interest in the conclusion of disputes and the finality of judicial decisions (Toronto (City), at para. 38; Grandview v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, at p. 636, citing Fenerty v. The City of Halifax (1920), 1920 CanLII 389 (NS CA), 50 D.L.R. 435 (N.S.S.C.), at pp. 437-38; K. R. Handley, Spencer Bower and Handley: Res Judicata (5th ed. 2019), at p. 4).
[37] With respect to the first principle, res judicata seeks to prevent the economic and psychological hardship resulting from a litigant being “twice vexed in the same cause” (Toronto (City), at para. 50, citing G. D. Watson, “Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality” (1990), 69 Can. Bar Rev. 623, at p. 633; see also Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 28). It is both unreasonable and unjust to permit a claim to be litigated afresh between parties to a dispute where the claim has been finally decided in a prior proceeding (Handley, at p. 4, citing New Brunswick Ry. Co. v. British and French Trust Corporation, [1939] A.C. 1 (H.L.)). In this way, res judicata focuses on the interests of the parties (Toronto (City), at para. 32).
[38] In addition to the individual focus of res judicata, the doctrine plays an important societal function. Our legal system places a high value on the finality of judicial decisions, an objective achieved by limiting the ability of parties to reopen disputes (Danyluk, at para. 18; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 34; Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257 (C.A.), leave to appeal refused, [1999] 1 S.C.R. xiv). Finality is critical not only for the certainty of the parties, but also for the integrity of the judicial process (Hoque, at para. 77). Res judicata also serves to maintain respect for and public confidence in the administration of justice by guarding against inconsistent results and inconclusive proceedings (Danyluk, at para. 18). Indeed, res judicata gives judicial decisions an authority they would not have if they were subject to constant reassessment and variation (Tsaoussis).
[39] To advance the objective of finality, res judicata “requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so” (Danyluk, at para. 18). As I will explain below, in the context of cause of action estoppel, res judicata requires a litigant to have advanced all arguments at the first proceeding that it could have had it exercised reasonable diligence. In this sense, a litigant is entitled only to one kick at the can (para. 18).
[40] Importantly, res judicata advances the objective of finality regardless of the correctness in law or fact of the prior decision that gives rise to the estoppel (Handley, at p. 6). This gives effect to the principle that a judicial decision made by a competent court is final and conclusive unless corrected on appeal (p. 6). For this reason, the correctness of a prior decision is not a relevant factor in determining whether res judicata applies to bar relitigation.
[41] While not its primary purpose, res judicata performs an additional societal function in facilitating access to justice. It does so by preventing duplicative litigation that drains court resources and the resources of the litigants (Danyluk, at para. 18).
[42] Closely related to the doctrine of res judicata is the doctrine of abuse of process by relitigation. Both res judicata and abuse of process by relitigation advance the policy grounds of finality and fairness (Toronto (City), at para. 38). However, abuse of process “transcends the interests of litigants and focuses on the integrity of the entire system” (Ontario v. O.P.S.E.U., 2003 SCC 64, [2003] 3 S.C.R. 149, at para. 12).
[43] The doctrine of abuse of process derives from a court’s inherent jurisdiction to manage its own procedures, and it applies based on a judge’s appreciation of the impact of relitigation on the repute of the administration of justice. Abuse of process by relitigation is often invoked where the strict preconditions to apply one of the branches of res judicata are not met, but where permitting relitigation of an issue or cause of action would nonetheless constitute a misuse of a court’s procedures (Toronto (City), at para. 37). In this sense, while abuse of process is “unencumbered” by the technical requirements of res judicata, it should be applied as a last resort to protect the repute of the administration of justice (para. 37, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting). It is “only when the rules of res judicata run out that it is useful to turn to” the doctrine of abuse of process (A. Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (3rd ed. 2013), at p. 1244). . Boyce Estate v. 2113626 Ontario Inc., (Hampton Inn and Suites) [re-litigation of same issues against second defendant]
In Boyce Estate v. 2113626 Ontario Inc., (Hampton Inn and Suites) (Ont CA, 2026) the Ontario Court of Appeal dismissed an employer's appeal, this brought against a "finding that it was a common employer" - and here in a wrongful dismissal context.
Interestingly, the claim against an 'other' common employer was successfully brought to completion first (on an uncontested basis), but the plaintiff re-sued against the (second) appellant common employer when the first judgment was returned unsatisfied. This raised the issue of whether res judicata (or abuse of process) could operate against all the parties that could have been party to the first action:[2] In 2009, Ms. Boyce was hired to be a manager at the Hampton Inn and Suites in Brantford, Ontario. The contract was to have a term of three years. Her employment was terminated five months after she started. Ms. Boyce brought a claim for wrongful dismissal against 217, and obtained an uncontested judgment for $120,000. When it became evident that 217 would not satisfy the judgment, Ms. Boyce commenced a claim against 211 and Danny Bawa for wrongful dismissal. Ms. Boyce died before her claim could be adjudicated and her estate has continued the litigation.
[3] The motion judge granted summary judgment against 211 and dismissed the claim against Mr. Bawa. The motion judge found that 211 and 217 met the common employer test. He further found that the doctrines of res judicata and abuse of process did not prevent Ms. Boyce or her estate from pursuing a claim against 211. 211 submits that the motion judge erred in reaching these conclusions. We see no such errors.
[4] The motion judge articulated the correct legal test for determining that 211 and 217 are common employers. He made findings of fact that were available to him on the record. In particular, he made findings that both companies were jointly involved in running the hotel. He also found that both companies had a common intention to create a relationship of employment with Ms. Boyce. 211 essentially invites this court to reconsider and reweigh the evidence. Absent an extricable error of law, this court owes deference to the motion judge’s findings of fact and to his application of the common employer test to the evidence. 211 has not identified any palpable and overriding errors.
[5] We also see no error in the motion judge’s determination that the doctrines of res judicata and abuse of process should not preclude the estate from pursuing this claim. 211 was not a defendant to the initial action and it therefore has suffered no unfairness in having to respond to this claim. In addition, in circumstances such as here, where 211 and 217 are closely tied entities and their relationship and roles were not easily discernable, it would be unfair to Ms. Boyce or her estate to preclude a claim against 211 once it became evident that 217 would not satisfy the judgment. The motion judge made no error when he concluded that the common employer doctrine is meant to “negate an artificial and unjust application of the res judicata doctrine in circumstances like this.” . Canadian National Railway Company v. Kitchener (City)
In Canadian National Railway Company v. Kitchener (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an order granting partial summary judgment in favour of the respondent, Hogg Fuel & Supply Limited (“Hogg”), dismissing CN’s claims relating to coal tar contamination on its property".
The court considers the doctrine of 'abuse of process', here in it's 're-litigation' form - and later, the degree to which the two proceedings need to be similar to invoke the doctrine:2. Abuse of Process Doctrine
[18] Abuse of process is a flexible doctrine rooted in the court’s power to prevent the misuse of its procedure. It applies in a variety of contexts and is unencumbered by specific requirements: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 33-35. One such context is to prevent relitigation of the same issue: see Abrametz, at para. 34. Relitigation can undermine important principles at the heart of the justice system, including principles of “judicial economy, consistency, finality and the integrity of the administration of justice”: see C.U.P.E., at para. 37; Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 35.
[19] When determining whether there is an abuse of process the court must consider all of the relevant circumstances: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, at para. 35, and look beyond the motive and status of the parties and concentrate on the integrity of the adjudicative process: C.U.P.E., at para. 51.
....
[38] CN’s position is that the motion judge erred by relying on Mintz v. Wallwin, 2009 ONCA 199, 73 C.P.C. (6th) 6, which it says is distinguishable because (i) Mintz was not a case where the second action asserted a continuing cause of action; and (ii) the second Mintz action involved claims identical to those advanced in the first action. CN’s position is that for a second action to be an abuse of process it must be identical to the one that has already been dismissed for delay: see also 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2021 ONSC 5746, 92 C.B.R. (6th) 261, at para. 44. According to CN, because the 2014 Action is not ‘identical’ to the 1989 Action it should be permitted to proceed.
[39] Any insistence on strict identicality ignores the similarities between the two actions at issue in the present appeal and is an interpretation that is, yet again, incompatible with the flexible nature of the abuse of process doctrine. In my view, the two actions are identical in that they both advance claims for continuing coal tar migration. Just as it did in the 1989 Action, CN pleaded in the 2014 Action that coal tar is migrating onto its property from Hogg’s property and causing damage.
[40] Even if not identical, the claims in the two actions cover the same harm and are not materially different. And, as this court stated in Pine Glen Thorold, at para. 59, “[t]he doctrine of abuse of process is flexible and does not require that the two sets of proceedings be identical”.
[41] Accordingly, the motion judge did not err in finding that the dismissal in the 1989 Action precluded the continuing coal tar claims in the 2014 Action. . Dale v. Toronto Real Estate Board
In Dale v. Toronto Real Estate Board (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against "an order dismissing his motion to set aside the consent dismissal of his action and to permit it to continue as if there had been no accepted offer to settle pursuant to r. 49.09 of the Rules of Civil Procedure".
Here the court considered a 're-litigation' abuse of process issue:[15] The doctrine of abuse of process serves to prevent the relitigation of issues that have already been decided and to prevent the pursuit of litigation that would violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice: Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604, 178 O.R. (3d) 241, at para. 41, leave to appeal requested, [2025] S.C.C.A. No. 459. The doctrine was properly applied in the circumstances of this case. . Derenzis v. Ontario
In Derenzis v. Ontario (Ont CA, 2025) the Ontario Court of Appeal partially allowed an appeal, this brought against a number of different R21 striking pleading grounds.
Here the court considers two forms of abuse of process in this auto insurance context, one for re-litigation and the other for collateral attack (though the latter was not identified as such):3. Did the motion judge err in striking the challenge to the constitutional validity of s. 55 [SS: 'Restriction on proceedings'] of the SABS and the challenge to s. 19 of the SABS based on an alleged breach of the Human Rights Code?
[23] Section 55 of the SABS requires a claimant to file an application for benefits but prohibits such an application if the claimant has failed to attend an insurer examination under s. 44. In the amended statement of claim, the appellants pled that the SABS permits violation of the insured’s person by way of the independent assessments, and violates ss. 7, 8, and 15 of the Charter. Section 19(3) of the SABS deals with the payment of attendant care benefits, which the claim alleged was discriminatory and breached the Human Rights Code.
[24] The motion judge struck both of these claims without leave to amend on the basis that they were an abuse of process. She made no error in her finding. Derenzis had asked the LAT to find that s. 55 of the SABS violated the Charter, but ultimately did not pursue that claim. This court has stated that it is an abuse of process to attempt to relitigate matters that were determined or could have been determined before the administrative tribunal: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470 at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491. That is precisely the situation with Derenzis, and the motion judge was correct to strike the pleading without leave to amend.
[25] Similarly, Derenzis challenges s. 19(3) of the SABS under the Human Rights Code, pleading that family members are treated differently in their compensation for providing care to injured family members. However, the legislation is clear that it is within the jurisdiction of the LAT to decide these disputes: Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sched. G, s. 5.1(4); Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. Derenzis made allegations of discrimination before the LAT which were rejected. She sought reconsideration which was also rejected. The motion judge properly found that any challenge to those findings lay with the Divisional Court. I agree with the finding that the pleading of this claim in the Superior Court of Justice constituted an abuse of process and was properly struck without leave to amend. . Jones-Moore v. Moore
In Jones-Moore v. Moore (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here where the "appellant’s statement of claim was struck under rr. 21.01(1)(b), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure".
Here the court characterizes 'abuse of process' in it's re-litigation form:[8] .... As this court recently held, “the doctrine of abuse of process serves to prevent the relitigation of issues that have already been decided … [and] can also apply to issues that could have been determined in prior proceedings”: Becker v. Walgate, 2025 ONCA 696, at para. 34; see also: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37; Aba-Aikhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, leave to appeal refused, [2013] S.C.C.A. No. 491, at para. 12. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a partly-successful motion to strike a claim in the context of a lawsuit relating to an administrative finding that the appellant's "application for a [SS: lawyer] licence was deemed abandoned."
Here the court considered the 'abuse of process' doctrine:[11] The doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 33; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 SCR 220, at para. 33; and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 35.
....
[21] We also agree with the non-LSO defendants that the proposed claim in negligence against them is an abuse of process because it is a claim the appellant could have made in his original statement of claim. As this court has recognized, the doctrine of abuse of process applies to claims that were made or that could have been made in a prior proceeding: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491; Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal refused, [2019] S.C.C.A. No. 438; The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 284. While the motion judge did not deal directly with this argument, it is an additional compelling reason why the appellant should not be allowed to proceed with his claim in negligence against the non-LSO defendants.
|
