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in some cases where the self-same issue has been decided against a party in previous proceedings, the courts have said that they will not allow the matter to be raised again in a subsequent proceeding. Lord Denning looks at this as more issue estoppel than abuse of process. He also later notes that an abuse of process can be the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intended plaintiff. [22] On October 24, 2002, Greer J. released Supplementary Reasons for awarding Hilltop punitive damages of $200,000, including the following findings: (a) the Defendants throughout the proceedings had engaged in malicious, oppressive and high-handed conduct to obfuscate, delay and defeat Hilltop’s claims through lies, deceit, false affidavits and fraudulent conduct; (b) the Valleywood Defendants and Katana had lied to banking and municipal authorities, had sworn false affidavits and had otherwise conducted their business without integrity; (c) their conduct was planned and deliberate to defeat Hilltop’s legal rights and to strip Valleywood of assets; (d) their conduct was egregious. Punitive damages would serve the purposes set out by the Supreme Court of Canada in Whitten, including retribution, deterrence and denunciation. [23] The Notices of Appeal of Valleywood and the Katana Family Trust include the following grounds: The trial judge erred in failing to apply the principles of issue estoppel and res judicata and consequently, in holding the Valleywood Companies liable for payment of the judgment obtained by Hilltop against Frank Katana. (Valleywood Appeal) The learned Trial Judge erred in failing to consider and apply the principles of res judicata and issue estoppel. (Katana Family Trust Appeal) Katana did not serve a Notice of Appeal from the judgment of Greer J. The Present Action [24] In the Present Action, commenced on March 19, 2003, Hilltop seeks a declaration that Katana (not the registered owner 806046 Ontario Limited (“806”), is the legal and beneficial owner of a property located at Mayfield Road and Kennedy Road in Caledon (“the Mayfield Property.”) [25] Early in the proceedings, Hilltop moved for a Certificate of Pending Litigation against 806, Katana and others. The motion first came on for hearing before Master Albert on April 22, 2003. [26] Just before the motion was to be heard, counsel for 806 advised counsel for Hilltop that the Mayfield Property had been sold and that an adjournment of the motion was being sought. The parties agreed to adjourn the motion to July 10, 2003 on terms, including a condition that the Mayfield Property would not be conveyed or further encumbered in the interim. 806 would provide Hilltop with security (to replace a Certificate of Pending Litigation) in the form of a 7 2003 CanLII 45839 (ON SC)
$2,366,350.00 mortgage against the Mayfield Property to be held by a trustee pending disposition of the Present Action. [27] 806’s counsel advised Hilltop’s counsel by letter dated May 7, 2003 that 806 is owned by 638739 Ontario Limited (“638.”) Ljubica Katana and Anton Kikas each own 50% of the shares of 638. THE LAW Katana’s Submissions [28] Counsel for Katana submitted that Hilltop is seeking relief it sought or could have sought in the First and Second Actions. Katana is now being unfairly faced with the Present Action. Res Judicata [29] Counsel for Katana submitted this Court should exercise its discretion and stay or dismiss the Present Action against Katana. He referred to Holmstead and Watson, Ontario Civil Procedure, (Carswell: looseleaf, June 2000) at 21-147, as follows: The doctrine res judicata is not a mere technical rule, but a fundamental rule of repose for litigants and for society. Both aspects of the doctrine have the same objective – judicial finality – and this salutary principle is founded on the generally recognized public policy that there must be some end to litigation. … First, that the state has an interest that there should be an end to litigation and secondly, that no individual should be sued twice for the same cause. [30] He also referred to Holmstead and Watson, supra at 21-146: Res Judicata is a form of estoppel and operates through the application of two doctrines or rules: claim preclusion (or cause of action estoppel) and issue estoppel (issue preclusion). Cause of action estoppel simply means that where the legal claims and liabilities of two parties have been determined in a prior action, the claims may not be relitigated. (If the cause of action was determined to exist, it is said to be merged into the judgment; if it was determined not to exist any subsequent action is barred.) Issue estoppel is an extension of the same rule of public policy, but it focuses not on claims or causes of actions, but on issues. It precludes relitigation of issues that a court has decided in a prior suit. If the cause of action involved in a subsequent proceeding is a separate and distinct one from that litigated in the earlier proceeding, cause of action estoppel will not apply. However, within different causes of action there may be common issues that have to be adjudicated. If an issue has been determined in prior litigation, issue estoppel – even if the new litigation involves a different cause of action – will prevent relitigation of the issue already decided” [31] He cited Las Vegas Strip Ltd. v. Toronto (City), [1996] O.J. No. 3210 (Gen. Div.), affirmed 32 O.R. (3d) 651 (C.A.), in which Sharpe J. (as he then was) noted that the respondents were relying on: …an often quoted passage from Henderson v. Henderson (1843), 3 Hare 100 at p. 115, 67 E.R. 313 at p. 319, per Wigram V.C.: ‘…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction the Court requires the parties to the litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon 8 2003 CanLII 45839 (ON SC)
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