Court File and Parties

Court File No.: CV-20-00640258-0000 Date: 2022-07-29

Superior Court of Justice - Ontario

Re: Antonio Doria, Plaintiff And: Warner Bros. Entertainment Canada Inc., Warner Bros. Television Group, Time Warner Inc., and 9818642 Canada Inc. operating as Bulletproof Location Support, Defendants

Before: Koehnen J.

Counsel: Joyce Tam, Natasha O’Toole for the defendants Warner Bros. Entertainment Canada Inc. Warner Bros. Television Group and Time Warner Inc. Kate Genest for the defendant 9818642 Canada Inc. operating as Bulletproof Location Support Shahen A. Alexanian for the plaintiff

Heard: July 27, 2022

Endorsement

[1] The defendants move to strike the plaintiff’s statement of claim pursuant to rule 21.1 (3) (d) of the Rules of Civil Procedure on the grounds that it amounts to an abuse of process because it seeks to relitigate damages that have previously been decided in a binding arbitration.

[2] The plaintiff submits that it has the right to bring this action despite the earlier arbitration because section 139 of the Courts of Justice Act[^1] allows him to bring a subsequent proceeding for the same or similar relief.

[3] I grant the motion and dismiss the claim as an abuse of process. Section 139 does not apply to circumstances like the one before me where the plaintiff has had a full opportunity to have his entire claim adjudicated in a first proceeding, was awarded judgment, and has fully collected on the judgment. The plaintiff is simply dissatisfied with the amount he was awarded. Section 139 does not give parties the right to relitigate issues simply because the adjudicator of the first proceeding did not award the level of damages that the plaintiff asked for.

The Facts

[4] In 2018, the plaintiff rented out his home to Renraw Production Services Inc. to film a television series. The rental period was three days in exchange for which the plaintiff was paid $27,500.

[5] During the course of the filming, the plaintiff’s family room floor was scratched. The scratches were introduced at the hearing by way of the photograph below and one similar photograph showing similar scratches in a different area.

The plaintiff did not contest the accuracy of the photograph at the hearing before me.

[6] The plaintiff commenced arbitration against Renraw and its insurer, Allianz Global Risks US Insurance Company (“Allianz”), seeking damages of over $680,000 in relation to the scratches. The Honourable Sidney N. Lederman Q.C. (the “Arbitrator”) awarded the plaintiff $49,668.38

[7] The plaintiff then brought an application before this court to set aside the Arbitrator’s award for lack of jurisdiction, breach of procedural fairness, and reasonable apprehension of bias. Justice Myers dismissed the plaintiff’s application.

[8] The plaintiff now brings a new action, seeking damages of over $500,000 in relation to scratched floor.

[9] The plaintiff submits that he is seeking damages different from those claimed in the arbitration because the defendants in this action are different than those in the arbitration. The defendant submits he did not even know the identity of the defendants in this action at the time of the arbitration and that the defendants in this action were not bound by the arbitration proceeding. In addition, the plaintiff submits he is seeking different damages than he sought in the arbitration in that he is seeking damages for loss of enjoyment of his home and costs that were not recovered in the arbitration. I note that those allegedly different damages are not set out in the statement of claim.

[10] The plaintiff has provided no reason for why the loss of enjoyment claim was not raised in the arbitration. The plaintiff admits that the balance of the claim is for damages that he sought in the arbitration but that the Arbitrator did not award.

Analysis

[11] Rule 21.01 (3) (d) provides that a defendant may move to stay or dismiss an action on the grounds that the action is frivolous, or vexatious or is otherwise an abuse of process of the court.

[12] The plaintiff submits that the doctrine of abuse of process has been used only where the abuse is such that it is oppressive, vexatious or would bring the administration of justice into disrepute. I do not read the cases as imposing that high a standard. In Toronto (City) v. CUPE Local 79,[^2] the Supreme Court of Canada accepted the use of the doctrine:

…to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.[^3]

[13] Abuse of process also applies where issues could have been determined in an earlier proceeding but were not raised.[^4] Absent any explanation from the plaintiff for failing to raise the loss of enjoyment claim in the arbitration, it falls into this latter category of abuse of process.

[14] The plaintiff relies heavily on section 139 of the Courts of Justice Act[^5] which provides:

139 (1) Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one of them does not preclude judgment against any other in the same or a separate proceeding.

[15] The plaintiff submits that the plain language of section 139, permits duplicative litigation.

[16] I do not read s. 139 as broadly as that. While s. 139 does contemplate the existence of duplicative litigation, it must be read together with s. 138 which provides:

As far as possible, multiplicity of legal proceedings shall be avoided.

[17] There are many circumstances that one can envisage in which s. 139 would properly allow duplicative litigation. For example, if a plaintiff has obtained judgment in a first action against one defendant but has been unable to recover, it would be consistent with policies of fairness and justice to allow the plaintiff to pursue another defendant in a second action. Similarly, if a plaintiff has settled against one defendant it may be fair and just to allow the plaintiff to pursue another defendant in a subsequent action for the difference between the amount for which the plaintiff settled and the plaintiff’s actual loss. In other situations, it may be that a plaintiff has not succeeded in a first action against a first defendant but has a valid claim against another party who was not involved in the first proceeding. In all the foregoing examples, one can read sections 138 and 139 harmoniously by allowing the subsequent action to proceed. There are no doubt other examples where duplicative litigation would be fair and just.

[18] The case before me is, however, different. The plaintiff was able to pursue the full scope of any damages it wanted in the arbitration. There is no suggestion that there was a limit on the amount for which Renraw could be held liable. There is no suggestion that the plaintiff wanted to pursue a claim that was somehow precluded by the contract between himself and Renraw or by any limitation in the arbitration process. The plaintiff’s full claim was adjudicated upon. The Arbitrator held that the plaintiff was not entitled to damages of $680,000 as claimed but was entitled to damages of $49,000. The plaintiff has collected the full amount of the arbitral award.

[19] In those circumstances, bringing a second claim is, in my view, an abuse of process even if the second claim is against a different defendant. The issue here is not the identity of the defendant but the fact that the Arbitrator considered the full amount of the plaintiff’s claim but awarded the plaintiff substantially less than he asked for. The plaintiff does not like that result and now wants to bring a second action in the hope that a different adjudicator dealing with the same claim, will provide a higher damage award than the Arbitrator did, even though this court refused to set aside the arbitral award.

[20] To allow the plaintiff to bring a new claim in those circumstances would, in my view, violate principles of judicial economy, consistency, finality and the integrity of the administration of justice which the Supreme Court of Canada has held the doctrine of abuse of process is designed to safeguard.

[21] The defendant submits that this case does not raise the sort of issues that bring the administration of justice into disrepute as Toronto (City) v. CUPE Local 79[^6] did. In CUPE, a city recreational instructor was convicted of sexually assaulting a child under his supervision. When the city terminated the instructor’s employment, he grieved and sought to put his culpability of sexual assault at issue during the grievance arbitration. The employee’s effort to do so was quashed as an abuse of process because it would bring the administration of justice into disrepute if someone were able to relitigate a criminal conviction in a subsequent proceeding.

[22] As already noted, however, bringing the administration of justice into disrepute is not the sole test for abuse of process. The doctrine of abuse of process exists in part to ensure judicial economy, consistency, finality, and the integrity of the administration of justice. I am particularly alive to those factors here. The Civil List in Toronto is already overburdened. It is now operating with two thirds of the complement of judges that it had two years ago. Civil case conferences have had to be severely curtailed because the court does not have the resources to staff them. Trials, motions and applications are regularly adjourned because there are no judges to hear them. In those constrained circumstances the court must do whatever it can to ensure that its process is used as efficiently as possible. Meaningful access to justice means increasing vigilance over judicial economy. While judicial economy cannot undermine substantive rights, it can safely be used to weed out claims that should not proceed. I have a high level of confidence that invoking judicial economy to preclude this claim from proceeding causes no injustice.

[23] The plaintiff relies on a list of cases which he submits permitted subsequent litigation in circumstances similar to his own. Before analysing those cases, it is worth bearing in mind the observation of the Ontario Court of Appeal to the effect that an inquiry into abuse of process is essentially a factual one in which each case will depend on its unique facts.[^7]

[24] I read the cases on which the plaintiff relies quite differently. They all involve circumstances in which the facts make duplicative litigation appropriate. None involves a situation in which a plaintiff has had its claim fully adjudicated but is then allowed to pursue a second claim, simply because it was not happy with the damages awarded in the first proceeding.

[25] The first category of cases on which the plaintiff relies involve cases where the plaintiff has succeeded in a first action against one defendant but has not been able to collect on the judgement. In those cases, courts have permitted a second action against a new defendant to allow the plaintiff the possibility of obtaining a judgment on which it could collect.[^8]

[26] The second category of cases on which the plaintiff relies involves settlements. The basic pattern involves a situation in which a plaintiff settles with a defendant in the first action for an amount less than its full damages. In those situations, courts have allowed the plaintiff to commence a second action against a new defendant to recover the difference between the settlement amount and the plaintiff’s actual damages.[^9]

[27] The third category of cases on which the plaintiff relies involves situations where a plaintiff has “not had its day in court” because he was not involved in the first action in which a particular point was determined.[^10] By way of example, in Intact Insurance Company v. Federated Insurance Company of Canada,[^11] a Mr. Cadieux was involved in an accident while driving his automobile. Mr. Cadieux’s son was a passenger in the vehicle, was injured and claimed recovery from what he believed was his father’s insurer, Intact. Intact denied coverage on the basis that Mr. Cadieux was not insured because the policy had been cancelled a few days earlier. Mr. Cadieux was convicted criminally of driving without insurance. After Intact denied coverage, the son claimed benefits from the insurer of the other vehicle involved in the accident, Federated Insurance. In an arbitration between the two insurers, Federated sought to challenge Intact’s denial of coverage and wanted to argue that Intact had indeed provided coverage. The Court of Appeal permitted Federated to advance that position because Federated was not a party to the criminal proceeding in which the finding was made that Mr. Cadieux was not insured.

[28] Engels v. Merit Insurance Brokers Inc. et al.[^12] involves a similar situation. In that case, Revenue Canada had found that the plaintiff was an employee and not an independent contractor. The defendant employer was concerned with that finding and appealed it within Revenue Canada. The plaintiff took no part in that appeal. Revenue Canada then conceded the point and held that the plaintiff was an independent contractor, not an employee. Sometime after the tax assessment appeal, the defendant terminated its relationship with the plaintiff. The plaintiff sued for wrongful dismissal. The defendant employer sought to strike the claim as an abuse of process because Revenue Canada had determined that the plaintiff was an independent contractor. The court allowed the claim to proceed because the plaintiff has not participated in the Revenue Canada appeal and had not had the opportunity to make submissions on the point.

[29] The fourth category of cases on which the plaintiff relies involves situations where two different adjudicative bodies have carriage of different aspects of a dispute in which case courts have allowed both claims to proceed before different adjudicators.[^13]

[30] The plaintiff relies heavily on Telus Communications Inc. V. Wellman[^14] which falls into this category of cases. In Wellman, the Supreme Court of Canada said the following about sections 138 and 139:

[90] Lastly, while s. 138 of the Courts of Justice Act stipulates that courts “shall” avoid a multiplicity of proceedings, it tempers this language by indicating that the court must do so only “as far as possible”. Accordingly, where the application of an Ontario statute, properly interpreted, leads to a multiplicity of proceedings, the court must give effect to the will of the legislature, even if the consequence is to potentially create a multiplicity of proceedings. This is consistent with Seidel, where the Court recognized that even where a multiplicity of proceedings could result, the court must nonetheless give effect to the “legislative choice” embodied in the legislation in question (para. 50). Indeed, here, s. 7(5) of the Arbitration Act expressly contemplates bifurcation of proceedings, as it permits the court to order a partial stay, thereby potentially resulting in concurrent arbitration and court adjudication, where the two preconditions outlined in s. 7(5)(a) and (b) are met. In theory, the Arbitration Act could be amended to grant the courts broad discretion to refuse a stay where doing otherwise could result in a multiplicity of proceedings, but the legislature has not taken this step. For these reasons, while a multiplicity of proceedings can cause practical difficulties, this concern cannot be permitted to trump the language of the statute.

[31] The plaintiff submits that, in the words of the Supreme Court in Wellman, I must “give effect to the legislative choice” embodied in s. 139 and allow this proceeding to advance. I do not read Wellman the same way.

[32] In Wellman, the court referred to bifurcation or multiplicity arising where a statute “properly interpreted” leads to it. In Wellman, the proper interpretation of the statute led to multiplicity. Here it does not.

[33] Wellman is not a case of duplicative litigation but a case of pursuing different remedies before different adjudicative bodies with different areas of competence. It involved a class action against Telus for certain charges. Telus took the position that a class action was inappropriate because the contracts with users called for arbitration. Telus moved to stay the class action. A wrinkle arose because consumer protection legislation precluded arbitration for consumer contracts. As a result, the court stayed that portion of the class action that applied to business customers but allowed the action to proceed with respect to consumer customers. Telus appealed. The Supreme Court of Canada upheld the partial stay which resulted in two proceedings because the applicable Arbitration Act permitted the court to “stay or partially stay” proceedings that were subject to arbitration. The court’s comments bifurcation or multiplicity must be interpreted in that light. The Supreme Court of Canada was not suggesting that a party who has had an issue fully adjudicated without limitation or restriction in an arbitration could now pursue a second claim in court to recover the difference between what the arbitrator awarded and what the plaintiff thought he was entitled to. Nor does the Arbitration Act[^15] provide for such a possibility.

[34] Ross v. IBM,[^16] on which the plaintiff also relies, is distinguishable on similar grounds. In Ross, the court permitted a constructive dismissal claim to proceed even though the plaintiff had commenced a proceeding before the Ontario Human Rights Commission for relief based on the same facts as those on which the constructive dismissal claim was based because the claims in the wrongful dismissal claim and the human rights claim were for different “causes of action.”

[35] The final category of cases on which the plaintiff relies permits multiplicity of proceedings involve solicitors’ negligence claims. In Wernikowski v. Kirkland, Murphy & Ain,[^17] for example, the Court of Appeal allowed the plaintiff, who had been convicted on two criminal charges, to sue his defence lawyer for negligence in the conduct of the criminal proceedings even though the negligence action would involve re-litigating the previous convictions. This was not abusive because the complaint was that the solicitor’s negligence had made the convictions improper. If abuse of process were used to bar such claims, then a large number of solicitors’ negligence claims would be precluded in situations when they might be most needed.

[36] None of the cases on which the plaintiff relies stands for the broad proposition that s. 139 requires the court to allow multiple proceedings in any circumstances. They all turn on fact situations that would make it unjust to deny the plaintiff access to a subsequent proceeding. Those considerations do not apply to Mr. Doria’s claim. His real complaint is that he disagrees with the Arbitrator’s damages award and would like an opportunity to obtain a larger judgment. In my view that is precisely one of the circumstances that the doctrine of abuse of process is intended to guard against.

Costs

[37] The defendants have been successful in this application. No reason has been provided for which costs should not follow the event.

[38] The defendants Warner Bros. Entertainment Canada Inc., Warner Bros. Television Group and Time Warner Inc. seek partial indemnity costs of $14,863.24 including HST and disbursements. The plaintiff has not objected to the amount sought. The amount sought is eminently reasonable for the amount and quality of the work performed.

[39] The defendant Bulletproof Location Support seeks costs of $6,083 on a partial indemnity scale. The lower amount of costs sought by Bulletproof reflects the fact that it rode on the coattails of the Warner Bros. defendants. Although Bulletproof counsel coordinated with Warner Bros. counsel in the preparation of a factum and argument, Bulletproof did not deliver a separate factum or make separate oral submissions apart from adopting Warner Bros.’ submissions. The plaintiff objects to Bulletproof’ s costs because they are higher than its own costs even though Bulletproof had considerably less involvement in the motion than did the plaintiff.

[40] A comparison of two lawyers’ bills of costs is not, however, the sole determinant of a costs award. The plaintiff was represented by a sole practitioner. Bulletproof was represented by a larger firm with different overhead and a different cost structure than that of a sole practitioner. In my view the Bulletproof cost claim remains reasonable even for its more limited involvement.

Conclusion

[41] For the reasons set out above, I grant the motion, dismiss the claim, and order the plaintiff to pay the Warner Bros. defendants costs fixed in the amount of $14,863.24 and to pay Bulletproof costs fixed in the amount of $6,083. Both amounts are fixed on a partial indemnity scale and include HST and disbursements.

Date: July 29, 2022

Koehnen J.

[^1]: Courts of Justice Act, RSO 1990, c. C. 43. [^2]: Toronto (City) v. CUPE Local 79, 2003 SCC 63 at paras. 35 and 37. [^3]: Ibid. at paragraph 37. [^4]: Winter v. Sherman Estate, 2018 ONCA 703 paras. 7-9. [^5]: Courts of Justice Act, RSO 1990, c. C. 43. [^6]: Toronto (City) v. CUPE Local 79, 2003 SCC 63 at paras. 35 and 37. [^7]: Wernikowski v. Kirkland, Murphy & Ain (1999) 1999 CanLII 3822 (ON CA), 50 O.R. (3d) 124 at para 46. [^8]: Taylor Made Advertising Ltd. v. Atlific Inc. et al 2012 ONCA 459; Bradford & Bingley Building Society v. Seddon Hancock et al. [1999] WLR 1482 [^9]: Quenneville v. Robert Bosch GmbH 2017 ONSC 7422 at para. 36; Waterloo v. Ford 2008 CanLII 436 (ON SC) at para. 44. [^10]: Canam Enterprises Inc. v. Coles 2002 SCC 63 adopting the dissenting reasons of Goudge JA in Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ON CA) at para 58; Intact Insurance Company v. Federated Insurance Company of Canada 2017 ONCA 73, 2017 ON CA 73; Engels v. Merit Insurance Brokers Inc. et al. 2007 CanLII 6455 (ONSC). [^11]: Intact Insurance Company v. Federated Insurance Company of Canada 2017 ONCA 73, 2017 ON CA 73 [^12]: Engels v. Merit Insurance Brokers Inc. et al., 2007 CanLII 6455 (ONSC) [^13]: Ross v. IBM 2004 CanLII 27413 [^14]: Telus Communications Inc. V. Wellman, [2019] 2 S.C.R [^15]: Arbitration Act, 1991, SO 1991, c 17 [^16]: Ross v. IBM, 2004 CanLII 27413 at para. 69-74. [^17]: Wernikowski v. Kirkland, Murphy & Ain (1999) 1999 CanLII 3822 (ON CA), 50 O.R. (3d) 124 (CA)