Civil Litigation - Joint Liability and Judgment or Release [CJA s.139]. Doria v. Warner Bros. Entertainment Canada Inc.
In Doria v. Warner Bros. Entertainment Canada Inc. (Ont CA, 2023) the Court of Appeal considered an action brought by a plaintiff who had the matter already dealt with in an arbitral award. Consequently the action was dismissed under R21 as an abuse of process. The plaintiff appealed, relying on a literal interpretation of CJA s.139 ['Joint liability not affected by judgment or release'], which reads:
139(1) Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one of them does not preclude judgment against any other in the same or a separate proceeding.The court stated:
 The motion judge summarized his decision at the outset of his Endorsement, as follows:
Section 139 does not apply to circumstances like the one before me where the plaintiff has had a full opportunity to have his entire claim adjudicated in a first proceeding, was awarded judgment, and has fully collected on the judgment. The plaintiff is simply dissatisfied with the amount he was awarded. Section 139 does not give parties the right to relitigate issues simply because the adjudicator of the first proceeding did not award the level of damages that the plaintiff asked for.....
ISSUES AND ANALYSIS
A. The appeal of the Dismissal order
 In support of his appeal of the dismissal order, Mr. Doria argued in his factum that s. 139 provides him with a statutory right to bring an action against the respondents, despite his arbitral award against Renraw. He submitted that the motion judge exceeded his jurisdiction by purporting to use his inherent jurisdiction to override the right conferred in s. 139. He also submitted that the motion judge erred by not giving effect to the plain meaning of s. 139, effectively amending it to confine its application to unsatisfied judgments, and by finding that s. 138 is “governing over section 139”.
 During oral argument he disclaimed heavy reliance on s. 139 but did not formally abandon these arguments, so we will address them briefly. None of them have merit.
 Section 139 does not confer an affirmative or even a “presumptive” right to sue jointly liable parties separately. On its plain wording, it provides that separate suits against jointly liable parties are “not preclude[d]” if a judgment has been obtained against one of them. The fact that actions are “not precluded” by prior judgments against a jointly liable party does not mean that such actions must always be permitted to proceed, regardless of the circumstances. If a judge appropriately determines that the subsequent proceeding constitutes an abuse of process, that subsequent proceeding can be stayed or dismissed.
 The motion judge was not purporting to articulate or apply universal rules, or to read language into s. 139. When the decision is read as a whole it is clear that his determination was made on the particular facts of this case. He recognized explicitly that “each case will depend on its unique facts” and referred repeatedly to “the circumstances” of this case.
 Nor did the motion judge find that s. 138 “governs” s. 139. He explicitly recognized that there are cases where s. 139 “would properly allow duplicative litigation” and he offered several illustrations. The motion judge did not err in making the innocuous and doubtlessly correct observations that s. 138 and s. 139 must be read together and that s. 138’s role in discouraging duplicate litigation is served by preventing abusive separate proceedings from being undertaken.
 In addition, Mr. Doria argued that the motion judge erred by treating the private Renraw arbitration proceeding as binding on other parties, and by effectively treating Mr. Doria as having waived his rights against other parties through the Renraw location agreement. We rejected these submissions because they are not accurate characterizations of the motion judge’s decision. The motion judge did not purport to rest his decision on the legal effect of the arbitration decision or of the Renraw location agreement. The motion judge’s decision was based on the fact that, after enjoying a full opportunity to assert his claim for damages and after obtaining a final award that was paid in full, Mr. Doria had no need for the imposition of joint liability against others. Yet he sought to pursue litigation against others for essentially the same damages in the hope of achieving a different and more favorable award. We see no error in the fact that the motion judge found this conduct to be abusive. The fact that the arbitral award was secured privately does not insulate the case from considerations of “judicial economy, consistency, finality and the integrity of the administration of justice”, the principles that inspired the motion judge to arrive at the decision he did.
 We did not accept Mr. Doria’s submission that the motion judge erred in treating the action as re-litigation even though it raised distinct liability issues not raised during the arbitration. The fact that liability issues would differ in the two proceedings was immaterial to the motion judge’s decision. His reasoning centred on his conclusion that Mr. Doria was effectively attempting to re-litigate damages claims through the court proceeding, after his arbitral damages award had been upheld and those damages had been collected.
 Nor were we persuaded by Mr. Doria’s submission that the motion judge erred by “purporting to extinguish Mr. Doria’s claim on the grounds of political expediency”, by relying on resource-based considerations. Once again, these submissions do not fairly reflect the motion judge’s decision. It did not turn on resource-based considerations but on the nature of the action, in all of the circumstances. The motion judge recognized explicitly that “judicial economy cannot undermine substantive rights” and expressed “confidence” that dismissing the proceeding “causes no injustice”.
 It also bears note that the Supreme Court of Canada recognized in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,  3 S.C.R. 77, at paras. 35‑53, that the principle of “judicial economy” supports the use of the abuse of process doctrine in appropriate cases by precluding re-litigation, even where the strict requirements of issue estoppel are not met: see also 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc., 2022 ONCA 718, at para. 19; Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at paras. 7‑8, leave to appeal refused,  S.C.C.A. No. 38899. The motion judge did not err in noting that considerations of judicial economy would be served by dismissing the action that he judged to be abusive.
 Mr. Doria also argued that the motion judge erred by effectively treating the r. 21.01(3)(d) motion as if it was a summary judgment motion, by weighing evidence and considering the merits of the case and making factual findings on an incomplete record, thereby ambushing Mr. Doria, “regarding Mr. Doria’s subjective state of mind regarding the [p]rivate [a]rbitration, the extent of the [d]amages, and whether Mr. Doria in fact had suffered losses not covered by the [p]rivate [a]rbitration”. We did not accept this argument.
 The plaintiff’s purpose in bringing an action is a relevant consideration in identifying abusive proceedings, and no reasonable issue can be taken with the motion judge’s conclusion that Mr. Doria instituted the proceedings against the respondents because he was dissatisfied with the arbitral award. Mr. Doria’s dissatisfaction was clear and obvious on the face of the claim, examined in the undisputed context in which it was brought. No weighing of evidence was required to make this determination, nor did it stretch the motion judge’s function in a pleadings motion. Mr. Doria received a fraction of the damages he claimed at the arbitration. Then he tried to set the arbitral award aside. When that failed, he instituted the current action in which he made claims for damages comparable to those he failed to secure in the arbitration. The motion judge’s conclusion was both reasonable and available to him.
 The motion judge did not make the other “factual findings” that Mr. Doria identifies. His decision to embed in his endorsement a photograph of the damage to Mr. Doria’s floor from the uncontested evidence when narrating the facts of the underlying litigation is not equivalent to a finding on his part as to the extent of the damage, notwithstanding that, on its face, the photograph leaves the powerful impression that the damage claims advanced by Mr. Doria were excessive. The motion judge did not make this kind of comment, nor did he base his decision on it.
 Nor did he find that Mr. Doria had not suffered damages that were not covered by the arbitral award. Instead, he focused on the reach of the relative claims before determining that Mr. Doria had a full opportunity to have his entire damages claim adjudicated during the first proceeding.
 Finally, we were not persuaded that the motion judge erroneously distinguished the authorities that Mr. Doria relied upon. We found no error in his reasoning. For example, although Telus Communications Inc. v. Wellman, 2019 SCC 19,  2 S.C.R. 19, recognizes that the operation of a private arbitration regime may require the bifurcation of proceedings where there are other potentially jointly liable defendants, the motion judge was correct in noting that Wellman does not support the proposition that there will always be a right to proceed with separate proceedings whenever one of the claims may have to resolved by arbitration. Indeed, Wellman does not even engage the discretionary determination of judges that the particular proceedings before them are an abuse of process.
 As indicated, the abuse of process doctrine may operate to prevent re‑litigation even where the strict requirements of issue estoppel are not met. Moreover, determinations of abuse of process are discretionary, attracting deference on appeal: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 24, leave to appeal refused,  S.C.C.A. No. 38746. We saw no basis for interfering with the motion judge’s determination that Mr. Doria was engaging in abusive re-litigation.