ONTARIO SUPERIOR COURT OF JUSTICE
Court File No.: CV-12-109039-00
Date: 2013-09-19
NEWMARKET
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YING HUANG and ALIAMISSE OMAR MUNDULAI
Plaintiffs
– and –
FERNBROOK HOMES (McNAIR CREEK) LIMITED and THOMAS RHODES
Defendants
A.O. Mundulai on his own behalf and for Y. Huang
G.R. Solomon, for the Defendants
HEARD: September 12, 2013
REASONS FOR DECISION ON MOTION
R. MacKINNON, J.
[1] The defendants move under rule 21.01(3)(d) for an Order dismissing or staying this action because they argue that the entire theory of the plaintiffs’ claim was disposed of by Gilmore J. on March 1, 2012 in her judgment on the plaintiffs’ Application CV-11-1061469 against Fernbrook.
[2] In that 2011 Application these same plaintiffs applied as purchasers for an Order declaring Fernbrook as vendor to be in material breach of a real estate Agreement of Purchase and Sale. They pleaded that all redesign and upgrading work was paid or was to be paid as an extra to the purchase price.
[3] After a four day trial in which witnesses were examined and cross-examined, Gilmore J. found that Fernbrook had the right to terminate the agreement, as it did, due to the applicants’ default. At para. 74 of her decision she wrote in part:
The conduct of the applicants both pre and post default is not curative. As such there is no need to consider the remedy sought by the applicants.
[4] Gilmore J. accordingly dismissed the applicants’ claims and ordered Fernbrook to forthwith return to them the post-termination payments and post-dated cheques that they had paid for upgrades. No appeal was taken from her judgment.
[5] On April 15, 2012, some six weeks after the release of the judgment in the Application, these same plaintiffs commenced this action against Fernbrook and its real estate sales agent Rhodes for breach of trust, bad faith, unjust enrichment and related claims arising from the same real estate agreement. Their Statement of Claim includes the assertion that the damages claimed are as a result of the defendants’ actions which the plaintiff plead culminated in the loss of their dream house on which they had employed redesign work, labour and energy.
[6] Both the Application and this subsequent action deal with the same Agreement of Purchase and Sale for the same property at 29 Sweet Alexandra Court, Vaughan, Ontario which Fernbrook terminated because of the plaintiffs’ failure to make payment. Gilmore J.’s judgment clearly found it was properly terminated by Fernbrook because of the applicants’ default. The defendants, vendor and realtor in this action collectively argue that it should be stayed or dismissed under rule 21.01(3)(d) as being frivolous, vexatious and/or an abuse of the court’s process. I agree.
[7] The underlying core element in this present action is whether the termination by Fernbrook was wrongful. I have carefully reviewed the Statement of Claim and can come to no other conclusion. Paragraph 20 of the plaintiff’s Claim under the heading “Liability” asserts:
But for the defendants’ actions and inactions the plaintiffs would not have been put in a situation resulting in the loss of their dream home.
[8] I have carefully reviewed all the assertions in the plaintiffs’ claim and recognize that under the Rule I cannot go beyond an examination of the pleadings and the reasons in the previous judgment by scrutinizing evidence for the purpose of determining the merits of the plaintiffs’ case. I am required to and have approached their Statement of Claim in as generous a manner as possible.
[9] The defendants do not dispute that the house was, pursuant to the Agreement of Purchase and Sale as verbally amended, modified by the plaintiffs’ work. That is not the issue. The modifications were pleaded in the previous application and were clearly, from her judgment, in evidence before Gilmore J. She clearly adjudicated on the issue of the return to the applicants of their post-dated cheques for upgrades.
[10] In Guergis v. Novak 2013 ONCA 449 our Court of Appeal noted as para. 15 that:
- It is a fundamental principle that where any judicial tribunal having proper jurisdiction gives judgment, then that judgment will be res judicata not only as to the point actually decided but also with respect to any other issues necessary to the decision. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.), at para. 37, the Supreme Court held that Canadian courts ought to apply the doctrine of abuse of process to preclude litigation in circumstances where the strict requirements of issue estoppel are not met but where allowing the litigation to proceed would violate the principles of judicial economy, consistency, finality, and the integrity of the administration of justice.
[11] Our Divisional Court held in Streisfield v. Karnovsky 2005 CarswellOnt 4641 at para. 14 that the application of res judicata is not restricted only to those points argued and decided but applies as well to all points that could have been raised.
[12] The separate doctrine of abuse of process applies to preclude litigation in circumstances where the strict requirements of issue estoppel are not met but where allowing the litigation to proceed would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. I refer to Toronto (City) v. C.U.P.E., Local 79 (supra).
[13] I repeat that the plaintiffs’ claims in this action are, at their core, based on the allegation that the termination of the Agreement of Purchase and Sale by Fernbrook was wrongful. That foundation was previously adjudicated upon and fully decided. It has been judicially decided that the termination by Fernbrook was lawful.
[14] Thomas Rhodes, as Fernbrook’s realtor, was not a party to the earlier application. For the purposes of this motion that is not at all significant. I repeat that Gilmore J. clearly found that the Agreement of Purchase and Sale which he negotiated with the plaintiffs on behalf of the vendor was properly terminated by Fernbrook as vendor. There is no other pleading against Mr. Rhodes in this action. The action accordingly cannot succeed against him.
[15] This action cannot succeed against either defendant. It is, I find, both frivolous and vexation within the meaning of rule 21.03. It is also an abuse of the court’s process. It is also res judicata. It offends the overall public policy goal of judicial finality. This action is an effort to relitigate a claim that has already been determined and is based on essentially the same facts.
[16] For these reasons, the defendants’ motion succeeds. An order will go dismissing the action in its entirety.
[17] If the parties cannot agree on the quantum of costs of this motion and of the action, the claiming party may, within twenty days of the release of these Reasons, serve and file written submissions of no more than four pages, single-spaced, together with a Bill of Costs. The responding party on costs may serve and file materials of the same length within a further ten days. Reply materials may be delivered within five days thereafter. All costs materials shall be forwarded to me in care of my secretary at Barrie.
R. MacKINNON, J.
Released: September 19, 2013