COURT FILE NO.: CV-20-84819
DATE: 2021/12/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bernard René Jean Sparr Plaintiff/Respondent
– and –
Denise Lee Downing Defendant/Moving party
Aylin Berberian for the plaintiff
Ryan Garrett for the defendant
HEARD: December 2, 2021
decision on motion to strike
Justice Sally Gomery
[1] By motion presented December 2, 2021, the defendant Denise Downing asked the court to stay this action and to order the plaintiff Bernard Sparr to post security for costs. After hearing oral argument, I granted the motion in part, with reasons to follow. These are my reasons.
Background
[2] In 2012, following the breakdown of the parties’ marriage, Mr. Sparr began a family law proceeding in Ontario Superior Court file FC-12-540-1. A year later, the parties had settled all issues between them except for child support, s. 7 expenses, and spousal support owed by Mr. Sparr. These issues were unresolved because Mr. Sparr repeatedly defied court orders to disclose financial information, for which he was held in contempt six times.
[3] On November 15, 2018, Justice O’Bonsawin once again found that Mr. Sparr had not disclosed all required information and had failed to pay outstanding costs. She froze his bank accounts and issued a preservation order with respect to his house in Gatineau, Quebec (the “Freezing Order”). On May 24, 2019, having found that Mr. Sparr had still not complied with outstanding orders, O’Bonsawin J. struck his pleadings and directed an uncontested trial.[^1] The Court of Appeal dismissed Mr. Sparr’s appeal of this order, rejecting his arguments that he had provided sufficient disclosure and that striking his pleadings was excessive.[^2]
[4] The trial of the outstanding issues in the family proceeding took place in July 2021. Justice Doyle concluded that Mr. Sparr owed over $825,000 to Ms. Downing in unpaid support, expenses and costs. She made a vesting order so that the money in his frozen accounts could be used to pay the outstanding amounts. She did not make any order regarding the house but remained seized for that purpose.
[5] Mr. Sparr did not appeal Doyle J.’s decision. He did, however, request an urgent hearing date for a motion to stay. This request was denied by the associate justice who heard it. Mr. Sparr has apparently taken no steps since to schedule his proposed motion on a non-urgent basis.
Should a motion to stay be granted?
[6] Mr. Sparr began this civil action in October 2020. In his statement of claim, he seeks orders to unfreeze the accounts subject to the Freezing Order and to lift the preservation order on his house in Gatineau.
[7] Ms. Downing seeks an indefinite stay of the action further to s. 106 of the Courts of Justice Act and r. 21.01(3)(c) and (d) of the Rules of Civil Procedure. She contends that the action is duplicative of the ongoing family proceeding, and that the principles of issue estoppel and impermissible collateral attack prevent Mr. Sparr from seeking to relitigate the Freezing Order.
[8] A stay is an exceptional remedy. It is exercised sparingly and only in the clearest of cases.[^3] I nonetheless conclude that a stay should be granted in this case, based on the principle of issue estoppel.
[9] In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 23, the Supreme Court of Canada set out the rationale for issue estoppel and the test that a party invoking it must meet:
Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies… .
[10] The three criteria for issue estoppel apply here and prevent Mr. Sparr from seeking the relief he claims in this action. The orders he seeks would require the court to relitigate Ms. Downing’s entitlement to the Freezing Order. That Order was made in another action involving exactly the same parties, and it is final.
[11] Mr. Sparr contends that, even if the technical requirements of issue estoppel are met, I should exercise my discretion to permit this action to continue. He relies on Farris v. Staubach, arguing that a stay would be highly prejudicial to him while defending this action does not materially prejudice Ms. Downing. He says that he is a victim of his former lawyer’s negligence, and that fairness dictates that he should have an opportunity to be heard.
[12] Mr. Sparr’s reliance on Farris v. Staubach is misplaced, and I do not accept his fairness argument.
[13] In Farris v. Staubach, the plaintiff sued the defendants, his former employer and managers, for unjust dismissal and harassment during his employment. He simultaneously filed a complaint to the Human Rights Tribunal of Ontario, alleging rights violations by the same defendants during his employment. The defendants moved to strike the civil action as an abuse of process, arguing that it could lead to inconsistent findings and duplicative remedies. Justice Lederman dismissed the motion, finding that the remedies sought in the two proceedings were different and that the tribunal had not yet made any order that could be the subject of a collateral challenge in the lawsuit.
[14] This case is distinguishable from Farris v. Staubach. It does not involve concurrent proceedings in two different forums offering different recourses. Mr. Sparr is not seeking different remedies in this action than those available in the family proceeding. He has started this action for the very purpose of invalidating the result in that proceeding.
[15] Mr. Sparr contends that his former lawyer was negligent. He says that he was not told that he could appeal the Freezing Order and that, by the time he realized that he could, it was too late.
[16] I give Mr. Sparr’s argument on this point limited weight. It presupposes, first of all, that his appeal of the Freezing Order would have been successful. There is reason to doubt this, given the summary dismissal of his appeal of the Order to Strike. Mr. Sparr also has other remedies available to him if he can prove he was not represented competently in the family proceeding. He has already filed a complaint with the Law Society of Ontario about his former lawyer.
[17] The main reason for rejecting Mr. Sparr’s fairness argument, however, is that it is absurd to suggest, given the history of the parties’ litigation, that Mr. Sparr has been deprived of a right to be heard. He has had many, many chances to make submissions about his disclosure obligations and the sanctions that should attach for his failure to comply with those obligations. The family proceeding has been ongoing for nine years. Much of this time has been spent arguing about whether Mr. Sparr has provided adequate financial information to the court. Mr. Sparr was denied the right to participate in the July 2021 trial not because of his failure to appeal the Freezing Order, but because he repeatedly defied court orders. He had an opportunity to appeal the order striking his pleadings in the family proceeding, which appeal was dismissed.
[18] I conclude that this is an exceptional case where stay is warranted. The continuance of this action would work an injustice for Ms. Downing because it would oblige her to relitigate issues already decided in her favour in the family proceeding. The stay will not cause an injustice to Mr. Sparr.
Should Mr. Sparr be required to post security for costs?
[19] Since I have ordered a stay, it would serve no purpose to order security posted at this point. Should Mr. Sparr eventually seek to have the stay lifted, Ms. Downing may then move for security for costs.
Disposition
[20] The action is stayed until further order of the court. The motion for security for costs is dismissed, without prejudice to Ms. Downing’s right to seek security for costs should Mr. Sparr later seek to have the stay lifted.
[21] The primary focus of this motion was the stay. Ms. Downing was successful on this issue. I order Mr. Sparr to pay her partial indemnity costs in the amount of $4,500.00 inclusive of fees, disbursements and HST.
Justice Sally Gomery
Released: December 09, 2021
COURT FILE NO.: CV-20-84819
DATE: 2021/12/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bernard René Jean Sparr Plaintiff/Respondent
– and –
Denise Lee Downing Defendant/Moving party
DECISION ON MOTION TO STRIKE
Justice Sally Gomery
Released: December 09, 2021
[^1]: Sparr v. Downing, 2019 ONSC 6564.
[^2]: Sparr v. Downing, 2020 ONCA 793.
[^3]: Varnam v. Canada (Minister of National Health and Welfare) (1987), 12 F.T.R. 34 at 36 (F.C.T.D.); Farris v. Staubach Ontario Inc., 2004 CanLII 11325 (ONSC), at para. 15.