SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Constantinos (“Gus”) Konstantinopoulos, Plaintiff
AND:
Demetrios Papadopoulos, Defendant
BEFORE: Justice S. Nakatsuru
COUNSEL: Caryma. Sa’d, for the Plaintiff
A. Paul Gribilas, for the Defendant
HEARD: April 27, 2018
ENDORSEMENT
1The plaintiff and defendant are neighbours. They own adjoining homes. In September of 2014, the defendant built a concrete wall to replace the original wall separating their backyards. The plaintiff has brought an action for negligence, trespass, and nuisance against the defendant for the building of the wall. The plaintiff alleges that the wall encroaches onto his property by 1 to 3 cm. This is the second time the plaintiff has sued the defendant for the building of this wall. The first time, he sued in small claims court. On November 16, 2015, the parties were ready to have their trial. After a lengthy discussion, the small claims judge ordered a dismissal of the action on consent with costs to the defendant. On December 17, 2015, the plaintiff brought a motion to set aside the dismissal order. The small claims court dismissed the motion due to the lack of jurisdiction.
2On July 27, 2016, the plaintiff filed a statement of claim in the Superior Court. The defendant now moves for summary judgment, submitting that this second action should be dismissed on the basis of cause of action estoppel or abuse of process. The defendant also moves for summary judgment on the basis that even if there is an encroachment, there would only be nominal damages. Given my decision, I will not address this latter argument.
3For the following reasons, I allow the motion and dismiss the plaintiff’s claim.
A. TEST ON A SUMMARY JUDGMENT MOTION
4This test is both well-established and well-understood.
5Rule 20.04(2) (a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, held at para. 49:
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.
6A responding party may not rest solely on the allegations or denials in the party’s pleadings. Under rule 20.0(2), they “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.
7The court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers set out in rule 20.04(2.1) and (2.2). The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
8If there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the fact-finding powers under rule 20.04. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
B. ANALYSIS
9In applying the test for summary judgment, I find that there is no genuine issue requiring a trial. There is sufficient evidence to fairly and justly adjudicate this dispute, and a summary judgment is a timely, affordable and proportionate procedure.
10In this case, I am satisfied and confident that the fair and just determination is that the plaintiff’s action should be dismissed on the basis of cause of action estoppel or abuse of process.
11Cause of action estoppel precludes a person from bringing an action against another where the cause of action was the subject of a final decision of a court of competent jurisdiction: Mohl v. U.B.C., 2006 BCCA 70, [2006] B.C.J. No. 335, at paras. 23-24; Furlong v. Avalon Bookkeeping Services Ltd., 2004 NLCA 46, [2004] N.J. No. 276, at paras. 13-14. Such issues have been determined on summary judgment motions before: see, for example, Martinez de Morales v. Lafontaine–Rish Medical Group Ltd., 2010 ONCA 59, 184 A.C.W.S. (3d) 373; Hazel v. Rainy River First Nation, 2016 ONSC 5875, 271 A.C.W.S. (3d) 662.
12In this case, the plaintiff commenced an action in the small claims court seeking damages that flowed from the building of the wall and its encroachment on to the plaintiff’s property. The factual matrix and legal allegations are fundamentally the same between the first action and the second action. While the plaintiff now seeks further remedies and makes additional claims, he is not permitted to bring forward the same subject of litigation in respect of a matter which might have been brought forward as part of the original claim.
13I appreciate that there was a consent dismissal of the small claims action and there was no adjudication on the merits. However, this is not a bar to the application of cause of action estoppel. A judgment by consent may also raise cause of action estoppel except in cases of mistake or fraud: Ontario Sugar Co. (Re), (1911) 19 O.L.R. 332 (C.A.), at para. 10; D’Addario v. EnGlobe Corp., 2012 ONSC 1918, 1 B.L.R. (5th) 23, at paras. 268-269. In this case, no fraud is alleged. With respect to mistake, as delineated below, I am of the view the consent order was not given on any mistake that would vitiate the application of cause of action estoppel.
14If I am wrong that cause of action estoppel applies in the case at bar, I am nonetheless of the view that there still remains no genuine issue requiring a trial. Having regard to the entirety of the history of the proceedings and the records filed by both parties, I am of the view that this action should be dismissed as an abuse of process. I find that this re-litigation would be detrimental to the adjudicative process. Even if the requirements of estoppel are not met, permitting this litigation to proceed would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice: see Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
15I have carefully reviewed the transcript of the proceedings before McNeely D.J. The proceedings were of some length. I noted several key aspects of the proceedings:
The plaintiff was represented by a lawyer, duty counsel Mr. T. Robertson, rather than a para-legal student as alleged by the plaintiff.
The decision for a consent dismissal was not arrived at without due consideration. McNeely D.J. took an active role in discussing the issues and how the trial was to proceed with the lawyers acting for the parties.
After initial discussions about witnesses, the defendant raised what he characterized as a jurisdictional issue. He submitted that the small claims court had no jurisdiction to make declarations about property disputes.
After a long exchange, McNeely D.J. recognized that he had no such power. However, he found (rightfully, in my view) that if the nature of the claim to damages required him to make a factual determination as to where the boundary of the property between the plaintiff and defendant existed, then he was obliged to make such a finding.
The issue of whether the case was in the right court was discussed. McNeely D.J. allowed the parties some time to discuss the matter. When the parties returned, they had not arrived at a potential resolution. At this point, Mr. Robertson advised that the plaintiff would not be asking the court to make any factual findings on the boundary and would only ask for damages. The plaintiff wanted a trial.
After more discussion, Mr. Robertson reversed his position and advised that the plaintiff was interested in having the boundary dispute resolved. McNeely D.J. asked how such a matter could be established where no surveyor was being called by the plaintiff. Mr. Robertson then asked for just a determination of the damage to the shed. When asked about what that would be, Mr. Robertson was given an opportunity to consult to determine what amount the plaintiff was actually claiming.
Upon his return, Mr. Robertson stated that they felt this was not the proper venue to deal with the underlying dispute that was in issue and that they would not be pursuing this claim in small claims court. When asked if they wanted a consent dismissal, Mr. Robertson agreed. Counsel for the defendant agreed and asked for costs.
16Based upon the transcript of proceedings, it is clear that the plaintiff asked for the dismissal of his action. This was clarified by McNeely D.J. The dismissal was granted.
17In the context of this case, I find that the defendant has demonstrated that this new litigation would be an abuse of process in that it is an attempt to re-litigate the dismissal. There are a number of relevant factors that point me to this conclusion.
18It is important that the plaintiff was represented by counsel. McNeely D.J. remained open to commencing the trial and did not exert any undue pressure on the parties. When the plaintiff advised that they did not feel it was the proper venue for the underlying dispute and they would not be pursuing the matter today in small claims, no request was made for any conditions or qualifications on the dismissal of the action. The plaintiff never asked for a dismissal without prejudice to the plaintiff commencing an action in the Superior Court. The plaintiff was not asked for his position regarding this. He did not get a chance to make any submissions regarding it. McNeely D.J. made no such order nor did he endorse it on the record. This is not a case of an unrepresented litigant who may have been under a misapprehension of the consequences of his act. He was represented by a lawyer, albeit one who was willing to act pro bono.
19I agree that the comments made Mr. Robertson about the court’s jurisdiction could be interpreted as an indication that he viewed that he was in the wrong court for the remedies he truly was seeking. However, I am not satisfied that the comments are sufficient to displace the application of the doctrine of abuse of process. The plaintiff had a long history of settlement discussions where he was represented by legal representatives of one kind or another. The issue of the boundary dispute was raised previously. This was not something new that arose unexpectedly at the trial. The plaintiff also had a previous trial date in August that he adjourned. The judicial system had by then expended considerable time and resources to accommodate his claims. The plaintiff had considerable time and opportunity to consider whether his claim was appropriately framed to achieve what he was seeking. At the same time, the defendant was put to considerable time and expense to defend his claim in the small claims court. It was in this context that plaintiff asked for the dismissal of his action.
20I am unable to attach any weight to the bald and self-serving averments in the plaintiff’s affidavit about his lack of awareness of the consequences of the dismissal of the action: Guarantee Co. of North America v. Gordon Capital Corp., [1993] 3 S.C.R. 423 at para. 31. I note no affidavit or material was filed by Mr. Robertson. Indeed, the plaintiff’s attempt to set aside the dismissal order demonstrates that he must have appreciated that the consent dismissal was a final order disposing of his claim. In that motion, he recognized that what he had to do was to reinstitute his action and then seek an order from the Superior Court of Justice to transfer the small claims action pursuant to s. 110 of the Courts of Justice Act. He could have chosen to do so before McNeely D.J. before his action was dismissed, but did not do so.
21Furthermore, on the record of the proceedings, there were other potential reasons for the plaintiff’s choice to abandon his claim apart from being in the wrong court. As discussions went on with McNeely D.J., the plaintiff asked for potential amendments to his claim – amendments that may not have been forthcoming. In addition, comments made by McNeely D.J. about what actual damages were suffered raised a concern that the plaintiff’s claim was not worth much at the end of the day. Finally, perhaps most significantly, the plaintiff did not have a surveyor present as a witness. McNeely J. queried at one point how the plaintiff intended to prove encroachment by the fence without a surveyor as a witness. In light of these inquiries, Mr. Robertson stated that given the concerns the court had expressed with respect to the surveyor and the lack of evidence on both sides, the plaintiff was only seeking compensation with regard to the shed and that issues regarding the retaining wall could be heard in a more appropriate forum. McNeely D.J. replied that he could not order anything to happen other than in his courtroom. I merely point all this out to show that I have not been persuaded that the interests of justice require forbearance on the application of the doctrine of abuse of process.
22I appreciate that the deputy small claims judge who heard the motion to set aside McNeely D.J.’s order endorsed that her order was without prejudice to the plaintiff seeking to transfer his action to the Superior Court or starting a new action. But these are superfluous comments. The deputy judge had determined there was no jurisdiction to make any order. The determination of whether the plaintiff could resort to other proceedings was not the deputy judge’s to make.
23The appropriate route for a remedy would have been for the plaintiff to attempt to appeal the consent dismissal of his action. If his claim was that he did not know what he was doing or that he was misled into consenting to the dismissal of his action, those matters could have been properly raised on appeal. The deputy small claims judge who heard the motion to set aside appreciated this. Indeed, as noted in Toronto (City) v. C.U.P.E. Local 79, the proper route to attack a judicial finding is through an appeal or judicial review.
24I fully appreciate the plaintiff’s argument that he did not have his day in court. I can empathize with that. However, he did have the opportunity to make his case. He also exercised it, in that he availed himself of numerous attempts to settle the matter, prepared for the trial to the extent he felt was necessary, attended his preemptory trial date, and then chose to abandon his claim. Equally important, the defendant too was put through all this time and expense. Furthermore, the civil justice system also devoted its time and resources to the matter. To permit new litigation in the Superior Court in these circumstances would only discourage parties from properly assessing their case before choosing their forum for trial, to abandon claims for tactical considerations, and permit uncertainty, in that there will be no significant obstacles to commencing new litigation. Fundamentally, this matter is about the integrity of the adjudicative process. I have considered the complete record, including the issues in this case and what is really at stake for the parties, and have determined that there is no fundamental unfairness in the conclusion that I have reached. I am confident in this being the just and fair determination.
25Upon success of the summary judgment motion, the defendant has agreed to the abandonment of his counterclaim. That counterclaim is dismissed.
26If the issues of costs cannot be resolved between the parties, I will entertain written submissions, each one limited to two pages excluding any attachments (any Bill of Costs, Costs Outline, and authorities). The defendant shall file within 20 days of the release of these reasons. The plaintiff shall file within 10 days thereafter. There will be no reply submissions without leave of the court.
Justice S. Nakatsuru
Released: May 25, 2018