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A prior abandoned foreign lawsuit against an unserved defendant does not bar subsequent litigation in Ontario.
The defendant moved for summary judgment, arguing that the plaintiffs' claims were barred by Indian procedural law (Order 23, Rule 1(4)) or, alternatively, by Ontario doctrines of res judicata and abuse of process.
This argument stemmed from a prior lawsuit in India, commenced by one of the plaintiffs against the defendant, which was abandoned before service on the defendant and dismissed without a determination on the merits.
The court dismissed the defendant's motion, finding that neither Indian law, which requires service for the procedural bar to apply, nor Ontario law, which requires a decision on the merits for res judicata or actual litigation for abuse of process, precluded the current action.
