CITATION: Caliciuri v. Matthias, 2017 ONSC 748
COURT FILE NO.: 11-5214 SR
DATE: 2017/02/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUSAN CALICIURI
Frank M. Falconi, for the Plaintiff
Plaintiff
- and -
JASON MATTHIAS
Melissa M. Sagat, for the Defendant
Defendant
HEARD: September 23, 2016
ellies j.
REASONS FOR DECISION ON MOTION
OVERVIEW
[1] Susan Caliciuri and Jason Matthias lived together in a common-law relationship for three or four years. After they separated, Caliciuri commenced three claims against Matthias in the Small Claims Court (the “SCC”). None of those claims proceeded beyond a settlement conference. Calicuri later commenced an action against Matthias in this court (the “SCJ”), within which this motion is brought.
[2] In the motion, Matthias seeks an order staying or dismissing the SCJ action on the basis that it is frivolous, vexatious and/or an abuse of process; that Caliciuri is precluded from further litigating the subject matter of the SCJ action pursuant to the doctrines of res judicata, estoppel and/or abuse of process; or, in the alternative, that there is no genuine issue requiring a trial.
[3] These reasons explain why the motion should be dismissed. The only SCC claim that is relevant was never decided on its merits. For that reason, the doctrine of res judicata does not apply. Because Caliciuri let the SCC claim lapse based on Matthias’ position that the SCC had no jurisdiction, the SCJ claim does not constitute an abuse of process. Finally, I find that there is a genuine issue that cannot be fairly and justly determined on the basis of the record before me. Therefore, the SCJ action must proceed to trial.
BACKGROUND FACTS
[4] In or about the year 2001, Matthias purchased a residence located on Kawliga’s Lane, in Redbridge (the “Redbridge residence”). Caliciuri began to live there with him in 2005. The parties lived together as common-law spouses until 2008 or 2009. The home remained in Matthias’ name after the parties separated.
[5] During their relationship, both of the parties earned income. Caliciuri had her own business. While the record on the subject is not completely clear, it appears that Matthias was employed by a third party, but as an independent contractor.
[6] After the parties separated, Caliciuri commenced three SCC claims.
[7] In one, she sought damages in the amount of $1,266.98 for clothing that she supplied to Matthias through her business, which clothing Matthias was to sell to his co-workers. In another, she sought damages of $9,775 for a four-wheeler that she alleged she had purchased and put into Matthias’ business name for tax purposes.
[8] In the third SCC claim (“SC33-10”), Caliciuri sought $25,000 as damages for unjust enrichment. In support of her claim, Caliciuri submitted that while the parties resided together, Caliciuri purchased a number of items which were apparently used by both parties. These included a hot tub, a “mosquito magnet”, dishes, and pots and pans. In addition, she made certain contributions to the Redbridge residence, such as paying for vinyl flooring, a ceiling fan, and painting rooms. Caliciuri alleges that she left a number of fixtures in the residence after the parties separated, including such things as a built-in stovetop and oven. She also alleges that she contributed towards the parties’ mutual living expenses for such things as groceries, liquor and Internet access.
[9] Matthias admits that Caliciuri contributed towards the purchase of food and “incidentals”. He also admits that Caliciuri contributed both material and labour to what would ordinarily be called “improvements” to the Redbridge residence. However, Matthias denies that Caliciuri’s contributions added any value to the residence. Instead, he deposes that most of the contributions Caliciuri made must be redone or replaced due to poor workmanship, and to the fact that Caliciuri removed things from the home when she left. Matthias says that Caliciuri was actually the one who was enriched in the amount of approximately $55,000, although he has not brought any counter-claim.
[10] The SCC motion was originally returnable on July 23, 2010. On that date, it was adjourned on consent without a fixed return date. A subsequent settlement conference failed to resolve the three SCC claims. Therefore, the presiding deputy judge made an endorsement requiring that all three “be set down for trial consolidation”. However, none of the matters proceeded to trial.
[11] Caliciuri’s claim relating to the clothing was eventually paid by Matthias. As a result, Caliciuri never pursued the claim. There is no information in the motion materials as to what order, if any, was ultimately made with respect to this particular SCC claim. It is reasonable to assume that it was administratively dismissed.
[12] With respect to Caliciuri’s claim related to the four-wheeler, at some point, Matthias agreed to transfer the ownership of the vehicle. However, he failed to do so. Caliciuri eventually managed to get the vehicle transferred into her name. As a result, she did not pursue her SCC claim. That claim was eventually administratively dismissed.
[13] With respect to SC33-10, Matthias brought a motion requesting that the claim be dismissed. In the motion, Matthias argued that the claim could only be dealt with in the “Family Court division of the Superior Court of Ontario” because it involved a “claim for relief by way of a constructive or resulting trust for a monetary award as compensation for unjust enrichment between two persons who have cohabited”. Caliciuri deposes that she did not oppose Matthias’ motion, based on the SCC’s lack of jurisdiction. Therefore, she did not pursue the matter further. On February 2, 2011, SC33-10 was also administratively dismissed.
[14] The present SCJ action was commenced on July 22, 2011. In it, Caliciuri seeks a declaration of constructive trust and damages in the amount of $25,000 for unjust enrichment. Like SC33-10, the present action was also administratively dismissed, on July 3, 2012.
[15] The SCJ action was subsequently revived at the request of counsel for Caliciuri. A default judgement was issued against Matthias on January 15, 2016. According to Matthias, the claim never came to his attention until he received a letter from Caliciuri’s lawyer in January 2016, enclosing a copy of the default judgment. Matthias quickly moved to set the default judgment aside and filed a statement of defence.
ISSUES
[16] Matthias raises three issues in this motion:
(1) Should the SCJ claim be dismissed under rules 2.1 and/or 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it is frivolous, vexatious or otherwise an abuse of this court’s process?
(2) Is Caliciuri estopped from advancing her claims in this court on the basis of res judicata, issue estoppel and/or abuse of process?
(3) Should the SCJ claim be dismissed under Rule 20 on the basis that there is no genuine issue requiring a trial?
ANALYSIS
Issue 1: Is the SCJ action frivolous, vexatious and/or an abuse of this court’s process?
[17] Both Rule 2.1 and 21.01(3)(d) permit a court to dismiss an action that is frivolous, vexatious or otherwise an abuse of process. There are two principle differences between these rules. Under Rule 2.1, the court may dismiss a proceeding on its own initiative where the frivolous, vexatious or abusive nature of the claim is obvious on its face, and may do so without providing the parties an opportunity to make submissions. Rule 21.01(3)(d) requires that a defendant bring a motion to dismiss and permits the defendant to introduce evidence regarding the nature of the claim.
[18] I am not persuaded that the SCJ action is frivolous, vexatious or an abuse of process.
[19] Although Matthias raises all three SCC claims in his motion materials, only SC33-10 involved the same subject matter as the present SCJ action. If the SCC claims relating to the clothing and to the four-wheeler have any relevance whatsoever to this motion, it could only be as evidence in support of an argument that Caliciuri has an improper motive in pursuing Matthias. However, these two SCC claims fail to support that proposition. Both claims appear to have had some merit. Matthias paid the amount sought for the clothes he was supposed to sell and Caliciuri somehow managed to have the four-wheeler put into her name, with no retaliatory action on the part of Matthias.
[20] Matthias’ argument that the SCJ action is frivolous, vexatious or an abuse of process because of the earlier SC33-10 claim can best be addressed as part of the next issue.
Issue 2: Is Caliciuri estopped on the basis of res judicata, estoppel and/or abuse of process?
[21] The doctrine of res judicata is part of the general law of estoppel. It has two distinct forms: issue estoppel and cause of action estoppel: see Donald J. Lange, The Doctrine of Res Judicata in Canada, 4th ed, (Markham: LexisNexis Canada Inc., 2015), at p. 1.
[22] Matthias submits that an administrative dismissal of an action can trigger the application of the doctrine of res judicata. He relies on the decision in Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 4497.
[23] Although it is of no consequence, the situation in Duca was the reverse of the case at bar. In Duca, the SCC claim was commenced after the SCJ claim. Beyond that, the facts in Duca are somewhat difficult to discern. At one point in the reasons for decision, the motion judge indicates that the dismissal of the earlier SCJ action was “administrative”: see para. 4. However, it also appears from the reasons that the defendant in the action, Duca, was awarded costs in connection with the administrative dismissal: see para. 2. An administrative dismissal under Rule 48 does not ordinarily result in a costs award. Duca may be distinguishable on that basis, alone.
[24] In Duca, the court stayed the SCC claim on the basis that it involved, or should have involved, issues that were the subject of the earlier SCJ claim. If the dismissal of the earlier SCJ action was, indeed, an administrative dismissal only, the decision in Duca goes against the weight of Canadian authority. Courts in Canada have consistently held that a dismissal for want of prosecution does not estop a second proceeding, because there has been no determination on the merits: see Lange, p. 338. In Hudon v. Colliers MacAulay Nicolls Inc., [2000] O.J. No. 3125, Nordheimer J. held that an administrative dismissal by a registrar under Rule 76 cannot trigger the doctrine of res judicata.[^1] At para. 7, he wrote:
There was no decision on the merits or on the issues raised by the plaintiffs made by the Registrar. Further, even if the Registrar had purported to do so, he would have no jurisdiction to make such a determination. Rather, the Registrar simply found that the plaintiffs had failed to comply with the time requirements of Rule 76 and, as he is mandated to do under that Rule, he dismissed the action. The defendant’s motion, insofar as it relies on the doctrine of res judicata cannot succeed.
[25] Although the administrative dismissal of SC33-10 was undertaken pursuant to the rules of the SCC, and not those of the SCJ, the rationale underlying the dismissal was the same. The matter had not been listed for trial in the way required by the rules. Therefore, the principle articulated by Nordheimer J. in Hudon is applicable in this case.
[26] If the result in Duca cannot be explained by the unique circumstances of the dismissal in that case, it may still be reconciled with the ratio in Hudon based on the existence of another fact which distinguishes both cases from this one. In Duca, the motion judge found that the SCC claim in issue constituted an abuse of the court’s process: see para. 8. In Hudon, Nordheimer J. reached a similar conclusion: see para. 8. For that reason, he dismissed the second claim. In this case, however, Caliciuri has deposed that she allowed SC33-10 to lapse, and eventually to be administratively dismissed, as a result of Matthias’ position that only the SCJ had jurisdiction. In these circumstances, I do not believe it can be said that Caliciuri’s commencement of an SCJ action within six months of the dismissal of SCC33-10 constitutes an abuse of process.
[27] For these reasons, I conclude that the SCJ action is not estopped by virtue of the doctrine of res judicata, nor is it an abuse of this court’s process.
Issue 3: Should the SCJ claim be dismissed under Rule 20?
[28] As an alternative request, Matthias asks that Caliciuri’s SCJ action be dismissed on the basis that there is no genuine issue requiring a trial.
[29] Rule 20.04(1) permits a court to grant summary judgment where the court is satisfied that there is no genuine issue requiring a trial. Rule 20.04(2) permits a court hearing a summary judgment motion to exercise the fact-finding powers traditionally available only to a trial court. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court held that a court must grant summary judgment where the judge is able to reach a fair and just determination upon the merits of the motion. At para. 49, Karakatsanis J., speaking on behalf of the court, wrote:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[30] In his affidavit, Matthias deposes that he and Caliciuri never pooled their efforts to achieve a common goal, nor did they pool their funds. He swears that, while they lived together, Caliciuri managed to invest money while he was unable to invest because he was paying all the bills.
[31] In her responding affidavit, Caliciuri disputes Matthias’ evidence. She says she paid for trips to Florida, four-wheelers, a snowmobile, and a boat for the parties’ mutual benefit. She deposes that she was financially dependent on Matthias and that she was unable to save any money because of all that she contributed to their mutual enjoyment.
[32] Each party has attempted to support his or her evidence with documents purporting to be corroborative. However, these documents raise as many questions as they provide answers.
[33] There is clearly a genuine issue in this case regarding the extent of Caliciuri’s contributions, both direct and indirect, to the Redbridge residence. I am not able to come to a fair and just determination, even using the enhanced fact-finding powers available to me.
[34] For these reasons, Matthias’ request for summary judgment must fail.
CONCLUSION
[35] The motion is dismissed. That does not mean, however, that this matter will be allowed to languish again, as it has in the past.
[36] Rule 20.05 provides that a court that refuses a summary judgment motion may make orders for the purpose of expediting the action. Rule 20.05(2) provides that the court “may give such directions or impose such terms as are just”. Pursuant to that rule, I am making the following orders:
(i) The parties are to serve the affidavit of documents required by Rule 67.03 within 30 days of the release of these reasons, if it has not already been served.
(ii) The parties are to set a date through the office of the trial coordinator for a pre-trial conference to be held before me within the next 60 days.
[37] The parties themselves shall attend the conference, with their counsel. They must be prepared to discuss settlement. If the matter does not settle, they must be prepared to discuss the costs of this motion and to set a date for a summary trial under Rule 76.12.
Ellies J.
Released: February 7, 2017
CITATION: Caliciuri v. Matthias, 2017 ONSC 748
COURT FILE NO.: 11-5214 SR
DATE: 2017/02/07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUSAN CALICIURI
Plaintiff
– and –
JASON MATTHIAS
Defendant
REASONS FOR DECISION
Ellies J.
Released: February 7, 2017
[^1]: The Rules of Civil Procedure have since been amended. Rule 76 no longer contains a stand-alone provision for dismissal. Actions commenced under Rule 76 are governed in this respect by the provisions of rule 48.14.