COURT FILE NO.: CV-19-632287
DATE: 20211018
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Steven (Istvan) Dugalin, Plaintiff
– and –
The Attorney General of Canada et al., Defendants
BEFORE: F.L. Myers J.
READ: October 18, 2021
ENDORSEMENT
[1] In an endorsement dated August 26, 2020, reported at 2020 ONSC 5110, the court stayed this action and directed the registrar to send a notice under Rule 2.1 to Mr. Dugalin. The notice and my endorsement told Mr. Dugalin that the court was considering dismissing this action and invited him to make written submission as to why the action is not an abuse of process.
[2] In my endorsement, I reminded Mr. Dugalin that his prior lawsuit based on the same allegations of fact had already been dismissed by the court under the Limitations Act, 2002, SO 2002, c 24 Sched. B. I explained that once a claim has been decided, the plaintiff is not entitled to sue a second time for the same thing. I wrote:
Mr. Dugalin sues Canada for breach of his rights under s. 12 of the Charter of Rights and Freedoms arising from his treatment after immigrating to Canada as a refugee in 1957.
In 2017, Mr. Dugalin already sued the government for breaches of different sections of the Charter of Rights in relation to the same factual allegations.
By reasons for decision dated November 19, 2019, Perell J. dismissed that action. He held that the applicable limitation period had expired years earlier so the action was barred under s. 4 of the Limitatons Act, 2002, S.O. 2002, c. 24, Sched. B.
Perell J. made the following findings:
[25] Apart from the presumption found in s. 5(2) of the Limitations Act and accepting the facts pleaded in Mr. Dugalin’s statements of claim and in his affidavits as true in 2012, Mr. Dugalin, whom it should be recalled was being assisted by a lawyer, knew that he had suffered injury, loss, or damage that had been caused by the actions of the Government of Canada and having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy the injuries he had suffered.
- No doubt, Mr. Dugalin has added a claim under s. 12 of the Charter. However, that does not appear to affect the rationale for the dismissal of the prior claim. It therefore appears to me that this action may be duplicative of a claim already dismissed by the court. Parties are not free to relitigate the same issue once it has been decided finally. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733.
[3] Unfortunately, Mr. Dugalin’s written submissions under Rule 2.1 were mis-filed. Then, the pandemic resulted in the court adopting revised procedures. As a result, Mr. Dugalin’s submissions did not come to the court’s attention until today.
[4] The court apologizes for any inconvenience or distress its failure to process this matter more quickly may have had on Mr. Dugalin.
[5] In his written submissions, Mr. Dugalin sets out statements of empathy expressed by other judges who dealt with his first lawsuit before it was dismissed. I agree. Anyone would empathize with the suffering Mr. Dugalin says he has endured.
[6] Mr. Dugalin then submits that Perell J. failed to consider his legal submission that he was “incapable of commencing a proceeding in respect of the claim because of his…physical, mental or psychological condition”. Under s. 7 (1)(a) of the Limitations Act, 2002, the limitation period would not have run during any period when Mr. Dugalin was under such disability unless a litigation guardian had been appointed for him.
[7] Unfortunately for Mr. Dugalin, that submission does not help him. If he believes that Perell J. made an error by dismissing his 2017 case, the law allows Mr. Dugalin to appeal the decision to the Court of Appeal for Ontario. But he cannot just ignore the dismissal and try again in a second lawsuit on the same facts. The law legal doctrine called “res judicata” recognizes the finality of the first decision and prevents Mr. Dugalin from relitigating a case that has already been decided.
[8] Mr. Dugalin had 30 days to launch an appeal from the dismissal of his first lawsuit. Whether the Court of Appeal would agree to extend that time period for him now, is a question for the Court of Appeal.
[9] The addition of a different Charter is of no help to Mr. Dugalin. First, it would be subject to the same limitation period as was found to apply already. Moreover, parties are also required to sue once and for all on all of their claims arising from a singular set of facts. The doctrine of res judicata, expressed as “cause of action estoppel” precludes litigation by instalments. The defendants are entitled to rely on the prior judgment as finally resolving the causes of action arising from the facts pleaded by the plaintiff.
[10] Accordingly, bringing this second lawsuit after the first lawsuit was dismissed is an abuse of the court’s process. As the action stems from allegations that are as much as 60 years old, this is a case for which the attenuated process of Rule 2.1 is appropriate.
[11] The action is dismissed. Costs, if sought, are payable by Mr. Dugalin to the defendants on a partial indemnity basis in an amount to be agreed or as assessed by an assessment officer.
F.L. Myers J.
Date: October 18, 2021