by Scott W. Urquhart, January 2011
Each week we profile a decision (or two) of BC’s Superior Courts which may be of interest to many of our clients. If you have any questions about the case or how it might impact your particular matter, do not hesitate to contact one of Lindsay Kenney’s lawyers.
0713401 B.C. Ltd. v. Elgon Electrical Services Limited and Bayani, 2011 BCSC 20
Reasons were given this week in a decision by the Honourable Mr. Justice Leask which may be of interest to those involved in construction disputes, or any party involved in matters with multiple issues and competing claims.
The defendants, an electrician and his company, applied to dismiss the claim of the plaintiff, 0713401 BC Ltd., an owner of residential property in West Vancouver, on the basis that the homeowner’s claim was an abuse of process.
In 2006, the electrician sued the homeowner, the present plaintiff, for $7,320.45 owed for work performed. 071 filed a “bare denial” Statement of Defence and the electrician applied for judgment. The hearing was adjourned to give 071 time to file an amended Statement of Defence and Counterclaim. 071 failed to file in time, and the electrician took judgment. On appeal, 071’s principal put the Counterclaim before the Court in which 071 alleged poor workmanship. Madam Justice Rowles, for the Court, dismissed the appeal, writing:
In the circumstances of this case, I would not accede to the submission that the interests of justice require the dispute to be heard on its merits. The plaintiffs’ claim was for a very minor amount of money. The defendants were represented by counsel when the statement of defence was filed. After the defendants had filed their statement of defence, it was open to the plaintiffs to seek summary judgment under Rule 18A. The statement of defence provides no indication of disputed facts that would suggest that the case would be unsuitable for determination under Rule 18A. The delay in the action being determined was substantial. To suggest that the “interests of justice” requires this claim to be returned to the trial court to be decided on its merits makes a mockery of the object of the Rules of Court, enshrined in Rule 1(5):
The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.
After losing the appeal, 071 sued the electrician, making the same allegations made in the first action’s counterclaim.
As a general principle, once an issue or cause of action is decided by the courts, subject to a right of appeal, that is supposed to be the end of the matter. Otherwise, litigation would have no end, and both parties and the courts would be subject to “vexation” and the exhaustion of their resources.
But that does not mean that disappointed litigants don’t often give it their best shot. So the courts have developed the doctrine of res judicata, Latin for “a matter judged”. The doctrine can apply to entire causes of action (cause of action estoppel) as well as discrete issues (issue estoppel). Both of those branches have some strict requirements that, if not met, can result in parties still being able to relitigate matters which have been decided against them. To deal with that, Canadian courts have developed the related doctrine of “abuse of process”:
to preclude relitigation in circumstances where the strict requirements of issue estoppel…are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63).
These doctrines are mirrored in Rule 9-5 of the Supreme Court Civil Rules.
In this case, Justice Leask observed that the present allegations against the electrician are exactly those which were before the Court of Appeal and were rejected. In the end, the original trial judge decided that the work “was always fully and properly done”. That issue having been decided, it would be an abuse of process to allow 071 to proceed with another expensive piece of litigation. The electrician’s application to dismiss the claim was allowed.
Every party to litigation has a duty to bring their whole case and/or respond fully to the allegations of the other side. The courts do not look favourably on parties trying to “litigate in slices” and have the necessary tools to strike those claims and defences with which they have already dealt.
Scott W. Urquhart
Associate Lawyer – Construction Law & Litigation
Lindsay Kenney – Vancouver Office