Court File and Parties

COURT FILE NO.: CV-17-585880 DATE: 20190219 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Estate of Scott Land, deceased, by its Litigation Administrator, Ryan Land, Sean Graham, personally, Ryan Land, personally, Sierra Graham by her Litigation Guardian, Sean Graham and Samuel Graham by his Litigation Guardian, Sean Graham, Plaintiffs – AND – Earl Glasner, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Joel McCoy, for the Plaintiffs Ian McKellar, for the Defendant

HEARD: February 13, 2019

Endorsement

[1] The Defendant moves under Rule 21.01(3)(d) of the Rules of Civil Procedure to dismiss the action for abuse of process. He submits that the action seeks to re-litigate the same matters that have already been determined between the same parties in a prior action.

[2] In the prior action, Court File No. CV-13-477660 (the “Prior Action”), the Plaintiffs brought an action for damages flowing from a deadly assault perpetrated against Scott Land, deceased, by another tenant while both of them were residents of a rooming house in Toronto. The defendants in the Prior Action are Ecuhome Corporaton (the corporate owner of the rooming house), Don Bint (the rooming house manager), and John Tahir (the individual tenant who perpetrated the assault). The plaintiffs in the Prior Action are the same as the Plaintiffs here: the Estate of Scott Land, deceased by its Litigation Administrator, Ryan Land (the “Estate”), along with a number of Mr. Land’s relatives. Two of those relatives are Mr. Land’s sons Ryan Land and Sean Graham, and the other two are Mr. Land’s grandchildren Sierra Graham and Samuel Graham. By agreement dated December 14, 2015, the Prior Action settled as against all defendants except for Mr. Tahir (the “Settlement Agreement”).

[3] Since the Plaintiffs, Sierra Graham and Samuel Graham, are minors, the settlement on their behalf in the Prior Action had to be approved by the court under Rule 7.08. In addition, one of the adult Plaintiffs changed his mind about the desirability of the settlement, causing all of the Plaintiffs to resile from the Settlement Agreement after it was signed. They argued that it was an improvident settlement that left them undercompensated.

[4] The defendants in the Prior Action moved under Rule 49.09 to enforce the Settlement Agreement. That motion was heard together with the Rule 7.08 infant approval motion on January 5, 2015. On January 30, 2018, Dietrich J. granted judgment enforcing the Settlement Agreement and approving it for the infant parties: Estate of Scott Land v Ecuhome Corporation, 2018 ONSC 218. There has been no appeal from that ruling.

[5] The Defendant in the case at bar was the Plaintiffs’ legal counsel in the Prior Action up until the negotiating and signing of the Settlement Agreement. When the Plaintiffs changed their mind about the settlement, they dismissed the Defendant, who then sought to intervene in the settlement approval motion. Dietrich J. granted him party intervenor status, and he filed an affidavit, participated in cross-examinations, and made written and oral submissions. It was the Defendant’s position that the Settlement Agreement was reasonable and provident, and, in addition, that it was in the best interest of the infant parties.

[6] In the present action, the Plaintiffs claim that they suffered damages by entering into an improvident settlement based on the Defendant’s faulty advice. They allege that the Defendant failed to take account of factors which a reasonably prudent lawyer should have accounted for, failed to collect all of the evidence in support of the Plaintiffs’ case, failed to advise the Plaintiffs properly and to seek and follow their instructions, and was negligent in his representation of them and in the negotiation of the Settlement Agreement on their behalf.

[7] In response, the Defendant submits that these are the very issues addressed and dismissed by Deitrich J. in her judgment in the Prior Action. Defendants’ counsel states that it is an abuse of process to relitigate what Justice Deitrich has already heard and decided with finality.

[8] It undermines the principle of res judicata, and generally is an abuse of process, for litigants to attempt to relitigate causes of action or issues that have already been decided by a court: Hartman v Amourgis, [2008] OJ No 2388, at para 21 (SCJ), aff’d 2009 ONCA 33, leave to appeal denied [2009] SCCA No 65. The policy reasons for this approach to the question of res judicata were set out in Toronto (City) v CUPE, Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para 37:

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ ad the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[9] Res judicata is comprised of two branches: issue estoppel and cause of action estoppel. “Cause of action estoppel precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction”: Angle v Minister of National Revenue, [1975] 2 SCR 248, 254. As for issue estoppel, “ [a]ny right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action”: Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para 24, quoting McIntosh v Parent, [1924] 4 DLR 420, 422 (Ont CA).

[10] As the names suggest, cause of action estoppel addresses the relitigation of an entire claim or entire causes of action, while issue estoppel addresses on an issue-by issue basis the matters determined in the prior proceeding. In the case at bar, Dietrich J. was of the view that there remained a cause of action in negligence against the Defendant even after her own ruling on similar issues. At para 48 of her judgment, Justice Dietrich specifically commented:

If the plaintiffs have changed their minds regarding the adequacy of the settlement and believe that they were not well represented in the settlement negotiations, it remains open to them to pursue their claim against Mr. Glasner… There is, therefore, no injustice to them in enforcing the existing settlement.

[11] On the other hand, for issue estoppel any question determined in the prior proceeding that was “fundamental to the decision arrived at” in that proceeding is barred from being reconsidered in a subsequent proceeding: Angle, at 225. As the Court of Appeal put it in McIntosh v Parent, [1924] 4 DLR 420, 422:

Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.

[12] In addition, the issue decided must be final and must have been determined as between the same parties or their privies: Angle, at 224. For present purposes, these two criteria can be considered satisfied. The Defendant was a full participant with party intervenor status in the proceeding before Dietrich J., and was on par in his ability to adduce evidence and present legal argument with all of the other parties in that action. As indicated, there was never an appeal of Justice Dietrich’s judgment, and so it is now final.

[13] The key to issue estoppel here is to identify those issues that were determined by Justice Dietrich with finality and that were necessary to her judgment, and to distinguish them from those that, while perhaps commented upon, were not integral to her judgment. This approach is in keeping with that of Dickson J. (as he then was) in Angle, where he stated, at 225, that “ [i]t will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment.”

[14] In embarking on this analysis, I must keep in mind the Supreme Court’s admonition that, “The rules governing issue estoppel should not be mechanically applied”: Danyluk, at para 33. To characterize an attempt at relitigation as an abuse of process is to invoke a “discretionary principle...used to bar proceedings that are inconsistent with public policy”: Canam Enterprises Inc. v Coles (2000), 51 OR (3d) 481, at para 31 (Ont CA), rev’d on other grounds, 2002 SCC 63, [2002] 3 SCR 307. The point is to determine whether “allowing the litigation to proceed would…violate such principles of judicial economy, consistency, finality and the integrity of the administration of justice”: Toronto v CUPE, at para 37.

[15] Justice Dietrich’s ruling must therefore be read carefully to ensure that only those that were truly integral to that ruling are made subject to the estoppel; while at the same time, once such integral issues are identified the estoppel should be applied purposefully rather than narrowly. As the Court commented in Danyluk, at para 54, “The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that ‘issue’ in the prior proceeding.”

[16] Like the case at bar, the Prior Action had two sets of plaintiffs: a) the Estate, and b) family members of Scott Land. As already described, Mr. Land was killed in an attack that took place in the rooming house in which he resided. His various family members sued on the basis of the Family Law Act for their loss of guidance, care and companionship. As also indicated above, insofar as some of the family member plaintiffs were infants, Dietrich J. considered the fairness and reasonableness of the Settlement Agreement from their perspective in the course of approving the settlement under Rule 7.08.

[17] Justice Dietrich ultimately held, at paras 21, 50, that the Settlement Agreement was “both reasonable and provident”. This holding was based on a number of findings made along the way. These include the fact that the Defendant had accumulated the evidence needed to properly assess the issues in the Prior Action, at para 36, that he appropriately kept the plaintiffs informed and took instructions from them, at para 37, that he properly took into account the cost of continuing the litigation, at para 36, and that he analyzed the liability and damages in a reasonable way and shared this analysis with the plaintiffs, at paras 37, 62.

[18] These findings, and Justice Dietrich’s ultimate holding regarding the family members’ claims, are conclusive. They not only support the holding that the Settlement Agreement was reasonable and provident; they also support the conclusion that the advice on which the family member Plaintiffs entered the Settlement Agreement was entered was reasonable. These issues cannot be relitigated without abusing the court’s processes.

[19] Of course, the reasonableness and provident quality of the Settlement Agreement were, formally speaking, only necessary with respect to the infant plaintiffs under Rule 7.08 – adult claimants do not need a settlement to be approved in this way. With respect to the adult plaintiffs, it was only necessary for Dietrich J. to find that the Settlement Agreement was negotiated in good faith and that they had agreed to it and so was binding and enforceable against them. Nevertheless, she went on to comment affirmatively on the providence and reasonableness of the Settlement Agreement for the adult plaintiffs as well as the infants.

[20] It is obvious from the way that Dietrich J. approached the Settlement Agreement that what was reasonable and prudent for the underage plaintiffs in the Prior Action was also reasonable and prudent for their parents – i.e. for all of the Family Law Act claimants. The Defendant’s collection of evidence, his analysis and advice, and his weighing of factors such as the cost of litigation, were done for his adult clients and his infant clients at the same time and in the same way (one of the adult clients being the litigation guardians for the infant clients). Justice Dietrich reasoned that the Defendant’s actions in this regard were reasonable, and that the Settlement Agreement was valid from the point of view of all of the family member plaintiffs.

[21] In view of these findings, it would be contrary to the policy goals of res judicata set out by the Supreme Court of Canada in Toronto v CUPE, at para 37 (quoted above) for the present action to proceed with respect to any of the issues raised by the family members of Scott Land. Abuse of process is a discretionary doctrine that can be fashioned by a court as part of its inherent jurisdiction to control its processes: Rourke v The Queen, [1978] 1 SCR 1021, 1031. In the present case, although Justice Dietrich’s finding that the settlement was reasonable and provident for the adult family member plaintiffs was not, strictly speaking, necessary, it was a logical outgrowth of the analysis that was necessary to do on behalf of the infant plaintiffs. It should be respected and not subject to reconsideration in a subsequent action such as this one.

[22] The other Plaintiff in this action and in the Prior Action is the Estate itself. Counsel for the Plaintiffs argues that the Estate did not receive any compensation under the Settlement Agreement, and that, in effect, the Defendant failed in his duty to provide reasonable legal advice and to negotiate a settlement that fairly took into account the Estate’s interests. In oral argument before me, Plaintiffs’ counsel made a strong point indicating that Mr. Land was beaten to death in a most vicious way, and that to enter a settlement of his Estate’s lawsuit that provides for no compensation for any pain and suffering he endured should at the very least raises a question about the reasonableness of the advice the Estate received.

[23] I will make no comment on whether the Defendant met the standard of care expected of him in advising and representing the interests of the Estate. My observations are limited to the fact that Justice Dietrich did not make any final holding in that regard. Her reasons for judgment – at least those parts that were integral to her holding regarding the reasonableness and providence of the Settlement Agreement – were directed toward Mr. Land’s family members’ claims and not toward the Estate’s claim. Any comments she may have made in respect of the overall claim that also encompassed the Estate’s claim were, to that extent, collateral to her holding.

[24] Again, Dietrich J. found that the Settlement Agreement was enforceable, including as against the Estate, and that the Defendant had, indeed, turned his mind to the question of the Estate’s own claim (as opposed to the family member Plaintiffs). But she did not offer any conclusion on whether the Defendant’s advice in this regard met the standard of care expected of him.

[25] Unlike the adult family plaintiffs, whose own claims were necessarily analyzed and opined on in the course of analyzing and opining on the infant plaintiffs in the Rule 7.08 motion, the Estate’s claim was not thoroughly analyzed. It stands on a different footing and raises different issues that were not integral to Justice Dietrich’s judgment. It is within the scope of what Justice Dietrich was referring to in para 48 of her judgment (quoted above), where she specifically left open the potential for a subsequent negligence claim against the Defendant.

[26] To be clear, the good faith and enforceability of the Settlement Agreement as against the Estate is not open for reconsideration. That was determined conclusively by Dietrich J. Likewise, Justice Dietrich determined in a final and conclusive way that the waiver of liability signed by Mr. Land did not violate section 20 of the Residential Tenancies Act, SO 206, c.17, which requires a landlord to keep units in a good state of repair and fit for habitation. Accordingly, she held that the Settlement Agreement is valid and enforceable as between the Plaintiffs (including the Estate) and the defendants in the Prior Action who were parties to it.

[27] What Dietrich J. did not determine is whether the Settlement Agreement, which, as indicated, contained no compensation for the Estate, was a reasonable and provident one for the Estate. “Whether a negligence claim that involves relitigation of issues is an abuse of process depends on the circumstances of the case”: Malhao v Azevedo, 2006 CarswellOnt 8551, para 36. The claim that the Estate, as opposed to the other Plaintiffs, entered into the Settlement Agreement in the absence of reasonable and prudent legal advice remains open for the Estate alone to pursue.

[28] The Statement of Claim is hereby struck out, with leave to amend it so as to restrict it to the Estate’s claim of negligent legal advice from the Defendant. The Estate’s claim is not estopped by virtue of Justice Dietrich’s ruling in the Prior Action. The Estate shall have 30 days to issue an Amended Statement of Claim.

[29] Counsel on both sides have advised me that they have agreed on costs, and that the successful party shall pay the unsuccessful one $7,500 in costs. Although the result of my ruling is that at least the Estate’s claim can remain alive, the successful party is really the Defendant. It is the Defendant who has managed to have the majority of the claim against him struck out.

[30] The Plaintiffs shall pay the Defendants $7,500 in costs, all inclusive.

[31] There shall be no further costs awarded in respect of the aborted second-to-last appearance in Motions Court, which apparently took place due to a combination of a confirmation sheet error and the court’s own lack of time. The parties will each have to bear their own costs thrown away on that appearance.

Morgan J. Date: February 19, 2019