Kelly v. Horn, 2014 ONSC 3303

Kelly v. Horn et al.

[Indexed as: Kelly v. Horn]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Marrocco A.C.J., Whitten and Thomas JJ.

June 16, 2014

121 O.R. (3d) 60 | 2014 ONSC 3303

Case Summary

Actions — Bars — Res judicata — Plaintiff injured and vehicle damaged in motor vehicle accident in Alberta — Insurer bringing subrogated action in plaintiff's name but without his knowledge in Alberta for [page61 ]damage to vehicle and obtaining consent judgment which was fully satisfied — Plaintiff not precluded from bringing personal injury action in Ontario — Section 546 of Insurance Act (Alberta) differentiating insurer's subrogated right of recovery for property damage from plaintiff's right of recovery for personal injuries — Term implied into Alberta consent judgment that it was without prejudice to plaintiff's right to recover for personal injuries — Insurance Act, R.S.A. 2000, c. I-3, s. 546.

The plaintiff was injured and the tractor-trailer which he was driving was damaged in a motor vehicle accident in Alberta. The defendant insurer paid the plaintiff for the damage to the tractor-trailer and then brought a subrogated action in Alberta in the plaintiff's name, but without his knowledge, to recover the amount it had paid the plaintiff. No statement of defence was filed, and a consent judgment was granted. The judgment was fully satisfied. The plaintiff commenced a personal injury action in Ontario against the at-fault driver (H) and the insurer. H brought a motion for summary judgment, taking the position that the plaintiff was precluded from bringing a personal injury action arising out of the same allegations of negligence and the same motor vehicle accident as that alleged in the concluded property damage action in Alberta. The motion was dismissed. H appealed.

Held, the appeal should be dismissed.

Section 546 of the Insurance Act, R.S.A. 2000, c. I.3 makes it clear that the insurer's subrogated rights and the insured's personal rights are statutorily distinct because release of one does not release the other. It was reasonable to read an implied term into the consent judgment indicating that it was without prejudice to the plaintiff's right to recover for personal injuries.

Arrow Transit Lines Ltd. v. Tank Truck Transport Ltd.; Joyce v. Tank Truck Transport Ltd., 1967 145 (ON SC), [1968] 1 O.R. 154, [1967] O.J. No. 1103, 65 D.L.R. (2d) 683 (H.C.J.); Biafore v. Bates-Pasis Leasing Inc. (1976), 1976 801 (ON SC), 11 O.R. (2d) 409, [1976] O.J. No. 2068, 66 D.L.R. (3d) 225, [1976] I.L.R. Â1-741 at 111 (Div. Ct.); Braithwaite v. Haugh (1978), 1978 1365 (ON SC), 19 O.R. (2d) 288, [1978] O.J. No. 3306, 84 D.L.R. (3d) 590 (Co. Ct.); Cahoon v. Franks, 1967 77 (SCC), [1967] S.C.R. 455, [1967] S.C.J. No. 32, 63 D.L.R. (2d) 274, 60 W.W.R. 684; Cleveland v. Yukish, 1965 238 (ON SC), [1965] 2 O.R. 497, [1965] O.J. No. 1001, 51 D.L.R. (2d) 208 (Co. Ct.); Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44, 201 D.L.R. (4th) 193, 272 N.R. 1, J.E. 2001-1439, 149 O.A.C. 1, 34 Admin. L.R. (3d) 163, 10 C.C.E.L. (3d) 1, [2001] CLLC Â210-033, 7 C.P.C. (5th) 199, 106 A.C.W.S. (3d) 460; Fortino v. Rudolph, [1982] O.J. No. 1415, 32 C.P.C. 315 (Div. Ct.) [Leave to appeal to C.A. dismissed [1983] O.J. No. 56 (C.A.)]; Gough v. Whyte, 1983 5122 (NS SC), [1983] N.S.J. No. 42, 56 N.S.R. (2d) 68, 32 C.P.C. 232, 117 A.P.R. 68, 19 A.C.W.S. (2d) 117 (S.C.T.D.); McCourt Cartage Ltd. (c.o.b. Laser Transport) v. Fleming Estate (Litigation Administrator of) (1997), 1997 12297 (ON SC), 35 O.R. (3d) 795, [1997] O.J. No. 3933, 152 D.L.R. (4th) 179, 38 O.T.C. 230, 49 C.C.L.I. (2d) 88, [1998] I.L.R. I-3496, 33 M.V.R. (3d) 32, 74 A.C.W.S. (3d) 268 (Gen. Div.); Trudel v. Seguin, [1998] O.J. No. 5187, 82 O.T.C. 270, 84 A.C.W.S. (3d) 563 (Gen. Div.); Vaughan v. Scott (1979), 1979 1806 (ON SC), 27 O.R. (2d) 560, [1979] O.J. No. 4518, 107 D.L.R. (3d) 153, 15 C.P.C. 219, 1 A.C.W.S. (2d) 24 (Co. Ct.), consd

Other cases referred to

Beattie v. Munro, [1980] O.J. No. 2780, 19 C.P.C. 303, 3 A.C.W.S. (2d) 61 (Co. Ct.); Kelly v. Horn, [2013] O.J. No. 876, 2013 ONSC 792 (S.C.J.) [page62 ]

Statutes referred to

Insurance Act, R.S.A. 2000, c. I-3, s. 546 [as am.], (1), (6)

Insurance Act, R.S.O. 1990, c. I.8 [as am.], ss. 240(1), 278(1)

APPEAL from an order dismissing a motion for summary judgment.

Edward V. Bergeron, for plaintiff/respondent.

T. Kirk Boyd, for defendant/appellant Travis Horn.

Stephanie Drisdelle, for defendant/respondent Markel Insurance Company.

The judgment of the court was delivered by

MARROCCO A.C.J.: —

1On March 27, 2008 in Ponoka, Alberta, a vehicle operated by the defendant/appellant Travis Horn and owned by West Country Oil Field Ltd. and John Taylor collided with a tractor-trailer operated by the plaintiff/respondent, Noel Kelly. The tractor-trailer was owned by Ultra Transportation Inc.

2After conducting an investigation, Markel Insurance Company paid Noel Kelly for the damage to Ultra Transportation Inc.'s tractor-trailer. The reason this payment was made to Noel Kelly and not to the owner of the tractor-trailer is not disclosed in the evidence before us.

3In a letter dated September 8, 2009, a claim management company hired by Markel Insurance Company provided subrogation documentation, requesting a pre-litigation payment of $167,491 to Aviva Insurance, the liability insurer for West Country Oil Field Ltd., John Taylor and Travis Horn.

4The subrogation documentation is not before this court.

5Noel Kelly lived in Coburg, Ontario at the time of the accident. After the accident he returned to Ontario and, on April 8, 2008, made a claim for accident benefits. In this claim, he authorized the release of medical information concerning his injuries to the defendant/respondent Markel Insurance Company. He provided a complete copy of his accident benefits file to Markel Insurance Company on or about August 27, 2010.

6Aviva Insurance did not pay Markel Insurance Company before the two-year limitation period in effect in the Province of Alberta, with the result that on March 23, 2010 Markel Insurance Company commenced an action to enforce its subrogated claim for damage to the tractor-trailer. It sued in the name of Noel Kelly for the amount it paid to Mr. Kelly to compensate for the property damage to the tractor-trailer. [page63 ]

7West Country Oil Field Ltd., John Taylor and Travis Horn retained counsel and their counsel advised counsel for Markel Insurance Company that they would pay the claim. No statement of defence was filed. Judgment was granted in the sum of $163,411.93. The judgment was fully satisfied on March 25, 2011. A consent judgment signed by a judge of the Alberta Court of Queen's Bench was entered into on March 31, 2011 in Edmonton, Alberta.

8Noel Kelly commenced a personal injury action against the defendants in Kingston, Ontario on March 23, 2010. The statement of claim was served on Travis Horn and Markel Insurance Company before the end of July 2010. As indicated, Markel Insurance Company consented to judgment in the property damage action in Edmonton on or about March 31, 2011.

9We are satisfied that there was evidence from which it could be inferred that Markel Insurance Company was fully aware of Mr. Kelly's personal injuries and his action for damages at the time it entered into the consent judgment in Alberta.

10On July 19, 2011, the defendants made Noel Kelly aware that a judgment bearing his name existed in Alberta. This was the first time Mr. Kelly had heard about the Alberta legal proceeding.

11Travis Horn brought a motion for summary judgment in the personal injury action. His negligence was not in issue on that motion. On the motion, Mr. Horn took the position that Noel Kelly was precluded from bringing a personal injury action arising out of the same allegations of negligence and the same motor vehicle collision as that alleged in the concluded property damage action in Alberta.

12Travis Horn's motion for summary judgment was dismissed. The learned motion judge relied upon two decisions from Ontario.

13The first was Vaughan v. Scott (1979), 1979 1806 (ON SC), 27 O.R. (2d) 560, [1979] O.J. No. 4518 (Co. Ct.). In this case, the plaintiff Gary Vaughan was involved in a motor vehicle accident with the defendant Andrew Scott. A claim was issued to recover property damage to Mr. Vaughan's motor vehicle. The defendant failed to enter an appearance; there was judgment in favour of the plaintiff for property damage and costs. In fact, what had occurred was that shortly after the accident the solicitors for the plaintiff's insurers were instructed to bring a property damage action. Unlike this case, the solicitors notified the plaintiff concerning their instructions and Mr. Vaughan [page64 ]advised that he had retained his own lawyer to deal with his personal injury claim.

14Mr. Vaughan eventually sued claiming damages for personal injuries, pleadings were exchanged, examinations for discovery were held and the personal injury matter was set down for trial. On the date for trial, the defendant moved to dismiss the action as an abuse of process. The defendant argued that there was only one cause of action arising out of the negligent driving and that it had been settled.

15Mr. Scott's motion to dismiss failed. Specifically, the court said, at para. 56:

The Courts must recognize that in situations as in the case at bar there are in reality two plaintiffs. First there is the party who has been injured who is on his own to claim compensation for pain and suffering and for certain special damages (subject to subrogation rights to such parties as the Ontario Hospital Insurance Plan) and there is a statutory or contractual plaintiff as the case of the insured herein who may proceed on its own volition and initiative against the defendant with the statutory or contractual consent of the actual plaintiff down to judgment.

16The second case relied upon by the learned motion judge was Braithwaite v. Haugh (1978), 1978 1365 (ON SC), 19 O.R. (2d) 288, [1978] O.J. No. 3306 (Co. Ct.). In this case, the plaintiff did not retain the solicitors in the property damage action and had nothing to do with launching or prosecuting that claim, although he did testify in the insurer's action. Later, the plaintiff commenced an action for personal injuries and while he was prosecuting that action it was brought to his attention that judgment had been obtained by his insurers for the property damage loss. The plaintiff successfully moved to set aside the property damage judgment obtained in his name by his insurers and reopen the property damage judgment so that he could pursue his personal injury claim free from a defence of estoppel or res judicata.

17The learned motion judge also relied on the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44. Specifically, the court referred to para. 33 of the Supreme Court of Canada decision, which provided as follows:

The rules governing issue estoppel should not be mechanically applied. The 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 a particular case. . . . The first step is to determine whether the moving party . . . has established the preconditions to the operation of issue estoppel . . . If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied.

(Citations omitted) [page65 ]

18The learned motion judge then performed the balancing described in Danyluk and set out the considerations upon which his exercise of discretion would be based. Specifically, the motion judge took into account the following factors in coming to a decision:

Mr. Kelly was unable to raise the issue concerning his personal injuries in the Alberta action brought by his insurer because he did not know about it.

Mr. Kelly's Ontario litigation did not contain allegations inconsistent with the factual allegations in the Alberta action so there was no likelihood of inconsistent judgments.

There was no attempt in the Ontario action to rely on the facts which could have been discovered with reasonable diligence and introduced into the Alberta proceeding.

Mr. Kelly's Ontario action was not an attempt to impose a new legal conception on the Alberta proceeding, nor was it an attempt to relitigate to secure a more favorable result in respect of the same issues.

19After considering these factors, the learned motion judge determined that if action or issue estoppel was available to Travis Horn, he would exercise his discretion and decline to apply it.

20Travis Horn filed a successful application for leave to appeal: see Kelly v. Horn, [2013] O.J. No. 876, 2013 ONSC 792 (S.C.J.). Leave was granted because the court granting leave decided that there are conflicting decisions in Ontario and at least Alberta on the question of whether one wrong may generate more than one cause of action.

21We are confronted by two alternatives: mechanistically apply the notion that one wrong may not generate more than one cause of action and create the result that Mr. Kelly's personal injury claim was extinguished by settlement of a property damage claim he knew nothing about, or apply the notion that one wrong may not generate more than one cause of action in a way which permits Mr. Kelly's personal injury claim to proceed.

22We have decided to dismiss this appeal.

23The authority for the principle that one wrong may not generate more than one cause of action is Cahoon v. Franks, 1967 77 (SCC), [1967] S.C.R. 455, [1967] S.C.J. No. 32, although some context is necessary to appreciate what that case decided. Mr. Franks was sitting in a car that was lawfully parked when Mr. Cahoon [page66 ]crashed his car into Mr. Franks' car. Mr. Franks commenced an action claiming only damages to his car. Sometime later, Mr. Franks obtained an order giving him leave to amend his claim to include a claim for personal injuries. He then obtained a further order amending his claim to include damages due to a concussion and injuries to his spinal cord which left him totally disabled. Mr. Cahoon objected to the amendments because they were made after the expiration of the applicable limitation period. Mr. Cahoon argued that the amendments raised a new cause of action that was barred due to the passage of time. The Supreme Court of Canada ruled that the amendments did not set up a new cause of action. The court held that a tort causing both injury to the person and injury to property did not create two causes of action. This ruling permitted Mr. Franks to proceed with his claim for damages.

24Cahoon v. Franks did not deal with the effect of Mr. Franks' insurer settling his subrogated property damage claim on Mr. Franks' subsequent pursuit of his personal injury claim.

25In Beattie v. Munro, [1980] O.J. No. 2780, 19 C.P.C. 303 (Co. Ct.), OHIP commenced a subrogated action in the name of the plaintiff seeking to recover costs associated with the plaintiff's lengthy stay in hospital after a motor vehicle accident. The actual plaintiff successfully sought to amend the subrogated OHIP claim to seek damages for personal injuries after the limitation period had expired. This case is entirely consistent with Cahoon v. Franks.

26In Arrow Transit Lines Ltd. v. Tank Truck Transport Ltd.; Joyce v. Tank Truck Transport Ltd., 1967 145 (ON SC), [1968] 1 O.R. 154, [1967] O.J. No. 1103 (H.C.J.), the court permitted both a property damage claim brought by the plaintiff's insurer and a personal injury claim brought by the actual plaintiff to proceed despite the court's opposition to a multiplicity of actions concerning the same matter. The court ordered that the actions be tried at the same time. We adopt the following statement by Mr. Justice Wilson, at p. 156 O.R.:

[T]he Court must endeavour to prevent an injustice being done by dismissing an action so as to deprive a party who has a proper cause of action from recovering.

Factually this case is quite different from the one with which we are concerned. It simply demonstrates the court's unwillingness to unfairly deprive a party of access to the administration of justice. [page67 ]

27In Gough v. Whyte, 1983 5122 (NS SC), [1983] N.S.J. No. 42, 56 N.S.R. (2d) 68 (S.C.T.D.), after a motor vehicle accident the plaintiff successfully sued in Small Claims Court to recover his deductible. His insurer had no knowledge of the Small Claims Court action. When the insurer commenced a subrogated claim to recover the property damage payment it had made to its insured, the defendant unsuccessfully moved to stay the action based on the Small Claims Court judgment. The court found that it was not contrary to public policy to permit the insurer's property damage claim to proceed. The court found there was no hardship to the defendant because the defendant knew about the subrogated property damage claim prior to the Small Claims Court action and, as a result, would suffer no prejudice if the property damage claim proceeded. This case provides an illustration of a court resolving the question on the basis of prejudice rather than the mechanical application of the rule.

28The appellant relied upon the case of Cleveland v. Yukish, 1965 238 (ON SC), [1965] 2 O.R. 497, [1965] O.J. No. 1001 (Co. Ct.). We view this case as authority for the proposition that, where the plaintiff insured and the plaintiff insurer maintain separate actions for personal injuries and property damage, both claims must proceed in one action. It is not helpful for resolving the issue before us.

29The appellant also relied upon Fortino v. Rudolph, [1982] O.J. No. 1415, 32 C.P.C. 315 (Div. Ct.). In that case, the insurers of the plaintiff commenced an action for the recovery of property damage and the solicitors for the insurer included a claim for damages for the rental of a car, which was a claim on behalf of the actual plaintiff. There was apparently judgment in respect of the property damage claim only. The court held that the entire cause of action was merged in the judgment and refused to permit the actual plaintiff to subsequently continue with car rental claim. In this case, the judgment was in the very same action as the claim which the plaintiff sought to pursue, which is quite different from the case before us. This decision was unsuccessfully appealed to the Court of Appeal, which declined to express an opinion on the correctness or otherwise of Vaughan v. Scott: see [1983] O.J. No. 56 (C.A.).

30The appellant also relied on McCourt Cartage Ltd. (c.o.b. Laser Transport) v. Fleming Estate (Litigation Administrator of) (1997), 1997 12297 (ON SC), 35 O.R. (3d) 795, [1997] O.J. No. 3933 (Gen. Div.). In that case, the court held, among other things, that the insurer's right of subrogation is derivative of and dependent upon the claim of the insured. The court held, at para. 6, that the insured's right to bring an action was the foundation of the [page68 ]insurer's right to bring a subrogated action. The court noted that, at common law, an insurer's right to bring a subrogated action was derivative of and dependent upon the existence of the insured's cause of action. Subrogation operates where the insured has a legally enforceable right against a party other than the insurer to recover the loss. Accordingly, where the insured's right to bring an action ceases to exist, the insurer's subrogated right to bring the same action ceases to exist. What is suggested in this case is a reversal of that principle -- namely, that when Markel Insurance Company's subrogated action ceased to exist, Mr. Kelly's claim for personal injuries ceased to exist.

31The court in McCourt Cartage Ltd. also held that the statement by Smith Co. Ct. J. in Braithwaite v. Haugh to the effect that the Insurance Act, R.S.O. 1990, c. I.8 in Ontario created two causes of action was tentative, obiter and not required to justify the remedy sought in that case, namely, setting aside the default judgment obtained by the insurer to make certain that the insured could proceed with his claim unhindered by the principal of res judicata.

32The appellant also relied upon Trudel v. Seguin, [1998] O.J. No. 5187, 82 O.T.C. 270 (Gen. Div.). In this case, the plaintiff, Mr. Trudel, was involved in a motor vehicle accident with the defendant that resulted in damage to the plaintiff's motor vehicle. The plaintiff submitted proof of loss to his insurers and the insurers paid him the amount of his loss. The insurers commenced a subrogated action against Mr. Seguin in the Small Claims Court and recovered default judgment. Seguin settled the default judgment. Trudel then sued Seguin for personal injuries arising from the motor vehicle accident. Trudel was able to also sue his own insurer pursuant to the uninsured motorist provisions in his policy because Mr. Seguin was uninsured.

33Seguin successfully moved to dismiss the personal injury claim against him.

34The court ruled that the subrogated claim was entirely the insurer's claim. The court ruled that the insurer should have consulted with Mr. Trudel before proceeding with the subrogated claim to determine whether Mr. Trudel intended to advance a claim for personal injuries. The court ruled that dismissing Mr. Trudel's claim against the uninsured defendant Seguin did not prejudice Mr. Trudel because he had also sued his insurer pursuant to the uninsured motorist provisions in his policy. The court dismissed Mr. Trudel's claim against [page69 ]Mr. Seguin ruling there was only one cause of action and that it had merged in the Small Claims Court judgment. This case is an example of the court enforcing the one cause of the action principle where there is no prejudice to the plaintiff. There clearly is prejudice to the plaintiff in the case before us because Mr. Kelley's personal injury claim is extinguished if Mr. Horn's appeal succeeds.

35The court in Trudel v. Seguin doubted the correctness of Vaughan v. Scott and preferred, at para. 12, the following statement of the Divisional Court in Fortino v. Rudolph:

While it might seem that the interests of justice and equity require that the action of [the plaintiff] be permitted to continue, these must be weighed against the interest of our courts in matters being finally determined and the fundamental principle that causes of action merge in judgments.

36Markel Insurance Company proceeded in Mr. Kelly's name in Alberta pursuant to s. 546(1) of Alberta's Insurance Act, R.S.A. 2000, c. I-3, which provides that

546(1) . . . an insurer that makes any payment or assumes liability for making any payment under a contract is subrogated to all rights of recovery of the insured against any person and may bring an action in the name of the insured to enforce those rights.

37Subsection 546(6) provides:

546(6) A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer unless they have concurred in the settlement or release.

(Emphasis added)

This subsection makes clear that the insurer's subrogated rights and the insured's personal rights are statutorily distinct because release of one does not release the other.

38The equivalent section in the Ontario Insurance Act, namely, s. 278(1), was considered by the Divisional Court in Biafore v. Bates-Pasis Leasing Inc. (1976), 1976 801 (ON SC), 11 O.R. (2d) 409, [1976] O.J. No. 2068 (Div. Ct.). The court held that the provision (at that time s. 240(1)) meant an insurer's right of subrogation could not be defeated by the insured's valid release in favour of the defendant after the defendant had paid a deductible. Working in reverse, the principle here would suggest the insurer's release in the subrogated action does not defeat the insured's rights not settled in that action.

39It is common ground that the payment made to Mr. Kelly by Markel Insurance Company under the contract of insurance was for property damage to the tractor-trailer. Accordingly, pursuant to s. 546 of the Alberta legislation, [page70 ]Markel Insurance Company was subrogated to Mr. Kelly's rights to recover for property damage to the tractor-trailer. No one suggested that, because it reimbursed Mr. Kelly for his property damage, Markel Insurance Company was subrogated to Mr. Kelly's personal right to recover damages for his personal injuries. There would be no rational justification for this because the payment made to Mr. Kelly was only in respect of the property damage. The rational conclusion is that the Alberta proceeding in Mr. Kelly's name enforced Markel Insurance Company's subrogated right to compensation from Mr. Horn for property damage to the tractor-trailer.

40This view is consistent with the satisfaction piece dated April 5, 2011 and filed with the Alberta Court of Queen's Bench. It provides that the plaintiffs "acknowledge satisfaction in full of its claim against the defendants" (emphasis added). The satisfaction piece references court file claim number 100304813, which is the court file number of the property damage claim.

41The consent judgment of course references the same court file number and was also filed on April 5, 2011. It simply provides that "[t]he plaintiffs are hereby granted judgment against the defendants West Country Oilfield Ltd., John Taylor also known as Jack Taylor and Travis Horn in the sum of $163,411.93". Mr. Kelly's personal injury claim was outstanding when the satisfaction piece and consent judgment were executed in March 2011. Service of the personal injury claim on the defendants occurred in July 2010. We think it is more reasonable to read an implied term into the consent judgment indicating that it is without prejudice to Mr. Kelly's right to recover for personal injuries. We recognize that we are dealing with a court judgment but, in fact, it is a consent judgment implementing the parties' settlement of the property damage claim and it was obtained without a defence being filed. The consent judgment in this case is a device effecting and recording a settlement. It is not a judgment rendered after a trial on the merits.

42Moreover, implying such a term makes the consent judgment settlement procedure used in this case consistent with the settlement and release procedures provided for in s. 546(6) of the Alberta Insurance Act and described above.

43Implying such a term in the consent judgment is also consistent with Markel Insurance Company's position in this appeal. Counsel for Markel offered legal arguments urging dismissal of Mr. Horn's appeal both in its factum and oral submissions. [page71 ]

44It is true that Mr. Kelly received accident benefits payments in Ontario. However, the insurance regimes in Alberta and Ontario are different. It is not rational to draw any conclusion concerning the nature of Markel Insurance Company's subrogated interest in the Alberta proceeding from the fact that Mr. Kelly received accident benefits payments in Ontario.

45We are satisfied that, for purposes of the law of Ontario, s. 546 of the Insurance Act in Alberta, in the factual context with which we are concerned, differentiates Markel Insurance Company's subrogated right of recovery for property damage from Mr. Kelly's personal right of recovery for personal injuries. We are satisfied that, if it is necessary, a term should be implied into the consent judgment to preserve Mr. Kelly's right to recover for personal injuries. This accurately interprets the consent judgment settlement procedure used in the Alberta action.

46As a result, resolution of the property damage action in Alberta did not compromise Mr. Kelly's personal right of recovery for personal injuries.

47If we are wrong, we see no basis to interfere with the motion judge's refusal to stay Mr. Kelly's personal injury action. Cause of action estoppel and issue estoppel are two doctrinal branches of estoppel res judicatem which, despite its common law roots, is nonetheless a discretionary implement of justice designed to protect against injustice: see Danyluk, at paras. 20 and 63. We are satisfied that the motion judge identified the appropriate considerations upon which to exercise his discretion and we decline to substitute our discretion for his. Although unnecessary for our conclusion in this regard, we also agree with his decision.

48This appeal is dismissed.

49We view the issue in this appeal as novel and, accordingly, there will be no order for costs.