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which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Also supported by Staff Builders International Inc. v. Cohen et al.; Cohen et al v. Staff Builders International et. Al,. [1983] 38 C.P.C. (Ont. H.C.) at. pp.85 and 86. [32] In the same case, Sharpe J. held that the fact that the applicant was relying upon a different theory did not remove the new claim from the reach of the old: The authorities establish that a litigant cannot establish a new and fresh cause of action by advancing a new and fresh legal theory in support of a claim based upon essentially the same facts. [33] Katana’s counsel submitted that his client meets the test of res judicata outlined in Holmstead and Watson, supra, at 21-151: The two actions must involve the same parties or their privies…; the claim now sought to be asserted must have been within the prior courts jurisdiction…; the prior adjudication must have been on the merits…; and the prior decision must have been a final judgment… Abuse of Process [34] He further submitted that to allow the claims against Katana to continue, would be to allow an abuse of process. He cited Donmar Industries Ltd. v. Kremlin Canada Inc. 6 O.R. (3d) 501 at p. 506 where Hayley J. held it an abuse of process to allow parties “…to put forward issues which were either raised in the first action or which were known to them and left unraised at the time of the first action. To allow them to do so is to permit a duplication of proceedings with the inherent danger of conflicting findings of fact on identical issues.” [35] He also cited a decision of Ground J. in Reddy(Litigation Guardian of) v. Oshawa Flying Club, (1992) 34 A.C.W.S. (3d) 503 at paragraph 26: The court has an inherent jurisdiction to dismiss or stay any proceedings which it determines to be an abuse of process. The doctrine of abuse of process is somewhat similar to the doctrine of res judicata in that it also seeks to prevent a multiplicity of proceedings or the re-litigation of an issue determined in earlier proceedings or which might have been raised in earlier proceedings but the party now raising the issue before the court chose not to do so. Hilltop’s Submissions Res Judicata [36] Counsel for Hilltop submitted counsel for Katana has not met the burden of proving res judicata based on either (a) cause of action estoppel or (b) issue estoppel. (a) Cause of action estoppel. [37] He submitted all of the following criteria have not been met: (a) In the earlier action, there must have been a final decision of a court of competent jurisdiction; (b) the parties to the subsequent action must have been parties to, or in privy with, the parties to 9 2003 CanLII 45839 (ON SC)
the earlier action; (c) the cause of action in the earlier action must not have been separate and distinct from the cause of action in the subsequent action; and (d) the basis of the cause of action in the subsequent action either was argued in the earlier action or could have been argued if the parties had exercised reasonable diligence. Doering v. Grandview (Town) [1976] 2 S.C.R. 621 (S.C.C) (b) Issue estoppel. [38] He submitted all of the following criteria have not been met: (a) the same question must have been decided; (b) the judicial decision said to create the estoppel must have been final; (c) the parties or their privies must have been the same as they were in the proceedings in which the estoppel is raised. Angle v. Minister of National Revenue 47 D.L.R. (3d) 544 (S.C.C. May 27, 1974); Machin et al. v. Tomlinson (2000) 51 O.R. (3d) 566, [2000] O.J. No. 4338 (Ont. C.A. November 20, 2000) at paragraph 2. [39] In any event, he submitted this Court should refuse to grant the order sought, as to grant it would be unfair and unjust to do so. See Minott v. O'Shanter Development Co. [1999] O.J. No. 5, 42 O.R. (3d) 321 (Ont. C.A. January 7, 1999) at pages 340 to 343. [40] He cited Danyluk v Ainsworth Technologies Inc. [2001] 2 S.C.R. 460, where Binnie J. for the Supreme Court of Canada said that the rules governing issue estoppel should not be mechanically applied. Their underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of the particular case. The first step is to determine whether the moving party has established the pre-conditions to the operation of issue estoppel. If successful, the Court must still determine whether, as a matter of discretion, issue estoppel should be applied. [41] Counsel for Hilltop submitted that in the circumstances here, where findings have already been made that Katana’s conduct was planned and deliberate and intended to defeat Hilltop’s legal rights, where Hilltop has obtained a judgment of approximately $5.5 million, but has collected only $24,000, the Court’s discretion should be exercised in Hilltop’s favour. Test on a Rule 21 Motion [42] Counsel for Hilltop submitted Katana has not met the test under Rule 21. Before striking out a claim, this Court must be satisfied that it is “plain, obvious and beyond doubt” that a claim cannot succeed. See Air India Flight 182 Disaster Claimants v. Air India (1987) 62 O.R. (2d) 130; MacDonald v. Ontario Hydro (1994), 19 O.R. (3d) 529 10 2003 CanLII 45839 (ON SC)
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