Court File No. CV-19-00080642-0000
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF: THE ESTATE TRUSTEE OF JAMES JESSUP
B E T W E E N:
SHEILA GRIFFIN, in her capacity as Executor and Trustee of the estate of JAMES JESSUP, Deceased
Plaintiff
BRIAN CHARBONNEAU
- and -
Defendants
DAVID STEWART, SHEILA GRIFFIN
Defendants (Counter-claim)
MIREILLE CHARBONNEAU & BRIAN SMITH
E X C E R P T
REMOTELY, BEFORE THE HONOURABLE JUSTICE K. PHILLIPS on March 9, 2021 for an OTTAWA, Ontario Proceeding
APPEARANCES:
L. Cardill Counsels for Sheila Griffin
C. Cardill Counsel for David Stewart
Brian Charbonneau In-Person
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
LEGEND
ENTERED ON PAGE
REASONS FOR JUDGMENT
1
Transcript Ordered:
April 14, 2021
Transcript Completed:
May 4, 2021
Ordering Party Notified:
May 4, 2021
TUESDAY, MARCH 9, 2021
R E A S O N S F O R J U D G M E N T
PHILLIPS, J. (Orally):
The motion today is granted. I dismiss this action. I do so on a variety of bases in keeping with Rule 21.013(b) and Rule 25.11(c). It is clear that this action is res judicata and an abuse of process of the court. Also, it is outside the applicable limitation period.
By way of background facts, I will note that Mr. Charbonneau and his wife are the owners of property located in Haley Station, Ontario. Sometime in the fall of 2001, Mr. Charbonneau entered into an oral agreement with his neighbour, Mr. James Jessup, to transfer Part 3 on reference plan 49-17847. The oral agreement involved the transfer of some money and an undertaking on the part of Mr. Charbonneau to conduct certain steps necessary to sever the piece of land in question, that being Part 2 from Part 3 so that Part 3 could be transferred to Jessup.
In the end, due to inactivity on the part of Mr. Charbonneau as well as some errors on the part of others, it would appear that that transfer was never done. Parts 2 and 3 were transferred to Jessup in error, and what has followed have been all kinds of legal machinations to attempt to rectify that error. It is unfortunate that Mr. Charbonneau has always conducted himself in the self-represented way. I do not wish to be insulting or condescending, but he has been effectively shooting himself in the foot at every step.
The matter came to the Small Claims Court before Deputy Judge James. By a decision dated, August 21st, 2017, Deputy Judge James, after considering all of the arguments put forth and contained in the action before me, dismissed Mr. Charbonneau’s claim. He made several findings of fact that are important and entitled to deference now. In particular, he found that the plaintiff, Charbonneau, had experience with the conveyance or sale of property in that he had applied for severances before, and that while mistakes were made by all sides back in May 2013, the primary responsibility in this very informal transaction between friendly neighbours lay with the plaintiff to apply for the relevant severance. Deputy Judge James also found that the plaintiff, Charbonneau had failed to prove any damages, in that he had not satisfied his burden to do so on a balance of probabilities.
I am persuaded, having reviewed both that action and the one before me that this is in effect, a second kick at the same can. All are aware that the doctrine of res judicata exists to prevent the re-litigation of matters that have been previously decided by a court of competent jurisdiction in both the sense of action estoppel and issue estoppel. I find that Mr. Charbonneau is re-litigating the same case that was put before the Small Claims Court. Obviously, the court expects any plaintiff to bring his case forward at one time, once and for all and that a disposition on that case shall be considered a disposition of the matter, pending of course the exercising of rights of appeal. While Mr. Charbonneau did have a right to appeal Deputy Judge James’ order, he did not. He has instead commenced an action in this court. Given the implications to all involved, I find that to be an abuse of process.
It is plain and obvious that the plaintiff’s action has already been heard before a court of competent jurisdiction, and he is now attempting to re-litigate the previously decided Small Claims Court action.
Rule 21.013(b) appropriately applied, results in dismissal of the plaintiff’s action as an abuse of process. It is effectively an appeal through other means and is a collateral attack on the decision of Deputy Judge James.
I further add that the claim before me is time barred. While of course there are different limitation periods applicable to claims arising in conflict of land, the way in which the plaintiff has framed his action here is that it is an allegation of misconduct and/or negligence on the part of certain people acting both with fiduciary duty and in other ways.
The personal component of the claim puts it within the ordinary limitation period, and he is well out of time.
I therefore dismiss this action as against all defendants. The motion brought today is successful.
To her credit, Sheila Griffin today has agreed to essentially forego the various expenses that could have been claimed by her. It strikes me, Ms. Griffin, that this is what your father would want you to do. He got into an agreement with his neighbour. It got messed up, given a lot of factors, but especially a lack of action on the part of that neighbour, and I commend Ms. Griffin for her generosity today in essentially waiving her claims, so that this can get put behind everyone concerned.
This court will today make a vesting order. The land in question, that being Part 2 on reference plan, 49-17847 shall henceforth be vested in the name of Brian Charbonneau, the plaintiff in this action. That vesting order applies as of today, and Mr. Charbonneau may register that vesting order forthwith.
I realize that this must be frustrating, particularly for Ms. Griffin. This ruling is based primarily on her reasonableness and generosity, and not on any strict application of the law. I think in all the circumstances, it is the right thing to do in any event.
Mr. Cardill, you have been doing most of the talking. Do you have anything to say sir, about what I have just ruled?
MR. CARDILL: No - one potential adjustment, Your Honour. The land back in 2013 was registered in the names of Mr. and Mrs. Charbonneau, so it is Brian Charbonneau and Mireille Charbonneau.
THE COURT: Very well, my vesting order means effectively to return things to the way they were.
MR. CARDILL: Yeah.
THE COURT: The land in question, Part 2 on the reference plan that I have referenced should henceforth vest in the plaintiff, Brian Charbonneau and his wife, Mireille Charbonneau. My intention is to restore the status quo that predated the agreement.
Anything else, Mr. Cardill and then I will call on Ms. Cardill if there is anything to be added.
MR. CARDILL: The only question was the - does this dispose of the counter-claim as well? I don’t suspect there’s going to be any issue there. I’ve sent an email to Ms. Clamission(ph) with respect to Mr. Smith being added. I said at the outset, Mr. Smith and Ms. Charbonneau added, because Ms. Charbonneau is an original owner of the land and Mr. Smith is Mr. Jessup’s counsel. I don’t suspect that’s going to be an issue on Mr. Smith’s side.
THE COURT: I hesitate to make rulings against the interests of people that are not part of a proceeding. They are not in front of me. I mean, clearly you can - I will talk plainly. I am trying to put this to bed...
MR. CARDILL: Yeah, yeah.
THE COURT: ...and Ms. Griffin has given me the green light to do that.
MR. CARDILL: Yes.
THE COURT: You know, she has been reasonable and generous, and I thank her, and I commend her for that. This is the right thing to do. This thing has just spiralled out of control. You know these are not condo developers who are real estate magnates. This is something that needs to end. All of which to say, you tell me; what is your advice as to what I have to do with respect to the interests that are affected by the order that I made.
MR. CARDILL: Yeah, and again, I’m not suggesting there’s any issues that, that, that aren’t there or trying to create any. I’m just wondering whether procedurally, we need to get Mr. Smith’s consent, and instead, I’ve emailed his, his lawyer. I keep hitting, ‘send/received’ to see if I get a response.
THE COURT: I will tell you what, what if I stood this done and we re-convene at two o’clock today, just put the final touch on....
MR. CARDILL: Yeah, if that, if that - I mean, I can’t see of any other way to do it. I suppose if we dismiss the main action, does the counter-claim automatically go with it. No, it doesn’t so I suppose for it to be procedurally fair, I think we need to hear from Mr. Smith.
THE COURT: Well, I propose to do that. You sent an email. I thank you for doing that. How about we re-convene at 2:00 p.m. I will hear from both of the parties and hopefully put this matter a hundred percent to bed.
MR. CARDILL: That’s fine.
THE COURT: All right, thank you, Ms. Griffin. It was a pleasure to have met you. You don’t need actually to come in again at 2:00, unless you’re curious enough to do so, but I thank you for the way you have conducted yourself in this hearing. As I say, it is the right outcome.
Mr. Charbonneau, you can come back, sir at two o’clock. I need to know what the other parties think of my proposed disposition. I’ll see everyone at 2:00.
R E C E S S
U P O N R E S U M I N G
MR. CARDILL: Okay, Your Honour, thank you for your patience there. So, counsel for Mr. Smith is agreeable to a dismissal of the action. We’ve gone back and forth on some terms of an amended settlement. We’ll resolve that between us.
THE COURT: All right.
MR. CARDILL: So, the main action and the counter-claim against Mr. Smith are going to be dismissed. I suppose the only thing that’s left would be the counter-claim against Mireille Charbonneau. I don’t see that being an issue. As I said at the outset, she was added in, simply because she was originally on title, and any order for vesting would be required with her name on it.
BRIAN CHARBONNEAU: But she could represent her, so there’s a problem with doing that.
THE COURT: Mr. Cardill, thank you very much for all the work you’ve put into this today. I appreciate it. I consider this matter at an end now. I gave reasons this morning about why the motion is allowed and having heard now from Mr. Cardill about the other affected parties, I will consider it all dismissed on consent effectively, and you can work out the rest of what needs to be worked in the court’s absence.
...END OF EXCERPT AS REQUESTED
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, GRACE BONESCHANSKER, certify that this document is a true and accurate transcript of the recording of Brian Charbonneau v. Stewart et al in the Superior Court of Justice held at 16 Elgin Street, Ottawa, Ontario, taken from Recording No(s). 0411_CR34_20210309_094939__10_PHILLIKE.dcr, which has/have been certified in Form 1.
May 5, 2021 _________________________________________
(Date) (Signature of Authorized Person(s))
Grace Boneschansker
ACT ID: 2011667438
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