Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240501 DOCKET: COA-23-CV-0728

Roberts, Trotter and George JJ.A.

BETWEEN

Stephen B. Sutherland Plaintiff (Appellant)

and

Canadian Imperial Bank of Commerce Defendant (Respondent)

Counsel: Stephen Sutherland, self-represented Ron Aisenberg, for the respondent

Heard and released orally: April 30, 2024

On appeal from the judgment of Justice C. Chang of the Superior Court of Ontario, dated June 8, 2023.

Reasons for Decision

[1] The appellant appeals the motion judge’s dismissal of his action. The motion judge found that the action was barred by the principles of res judicata and was an abuse of process.

[2] The appellant concedes that the dismissed action was identical to his earlier counterclaim brought in Canadian Imperial Bank of Canada’s (“CIBC”) Collection Action against him. The appellant’s counterclaim was dismissed by Chozik J. because it disclosed no reasonable cause of action. The appellant did not seek to set that dismissal order aside or appeal from it. Referring to the long history of past proceedings between him and the CIBC, the appellant says however that his present action should not be barred because of unfairness and injustice given CIBC’s alleged breach of its duty of honest performance in its contractual dealings with the appellant.

[3] We are not persuaded by these submissions.

[4] We agree that the motion judge correctly applied the principles of res judicata and abuse of process to prevent the appellant from relitigating in this action his claims and issues in the Collection Action. As the motion judge concluded in para. 20 of his reasons:

I also find that this action constitutes an abuse of process. Mr. Sutherland is recycling in this action the arguments that he made in his struck-out pleading in the Collection Action, which arguments Chozik J. considered and rejected. Furthermore, fairness does not dictate that the decision of Chozik J. should not be binding in the current circumstances, as, among other things, there is no “new context”. Mr. Sutherland’s allegations against CIBC and the bases for those allegations remain unchanged from what they were in the Collection Action.

[5] The motion judge properly rejected the appellant’s argument of unfairness and injustice. We agree with the motion judge’s finding that there is no evidence of either here.

[6] As the motion judge found, the appellant is seeking to relitigate his previous claims and issues. His remedy would properly have been a motion to set aside Chozik J.’s order or an appeal from it. He chose neither.

[7] There is no basis for appellate intervention here.

[8] The appeal is therefore dismissed.

[9] Costs are payable by the appellant to the respondent in the all-inclusive amount of $5,000.

“L.B. Roberts J.A.”

“Gary Trotter J.A.”

“ J. George J.A.”