COURT FILE NO.: FC73/21

DATE: October 30, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Marcy Lightfoot

Sean D. Heeley, for the Applicant

(N. Smith appearing as agent)

Applicant

• and -

David Lightfoot and Evelyn Lightfoot Richard G. Startek

Self-represented Scott W. Beattie

Respondents

HEARD: September 28, 2023

HASSAN J.

MOTION AND ISSUES

1The Respondent, Richard Startek, (“RS”), commenced this Motion on April 12, 2023. He seeks an order striking out the Amended Answers as against him, filed by the Co-Respondents, David Lightfoot, (“DL”), and Evelyn Lightfoot, (“EL”), or, alternatively, an order for Summary Judgment, dismissing the Amended Answers.

2The Respondent, RS, was formerly the lawyer for the Applicant, Marcy Lightfoot, (“ML”), in this proceeding. The claims of the Co-Respondents, DL and EL as against RS relate to steps taken by RS in his capacity as counsel for ML.

3In March 2022, the Respondent, DL, commenced a civil action as against RS and ML. The claim was for losses and damages alleged to have been suffered by DL as a result of actions taken by ML and by RS as her lawyer, in the context of the separation and eventual Divorce Application between DL and ML.

4On October 20, 2023, the civil claim was dismissed on Summary Judgment Motion, as against both RS and ML. The Motions Judge found that some of the claims advanced by DL did not disclose any reasonable cause of action; that some claims constituted an abuse of process, in that the claims should have been advanced in the family law proceeding; and that there was no duty of care owed to DL by RS, as lawyer for his spouse in the family law proceeding.

5In February 2023, the Applicant ML served an Amended Application in the within proceeding. The Respondents DL and EL then served Amended Answers, adding RS as a Respondent.

6The Respondent, RS, served an Answer to the Amended Answers, claiming that many of the issues raised in the Amended Answers were barred by virtue of the doctrine of res judicata; that the allegations contained in the Amended Answers disclosed no reasonable cause of action; that the claims constituted an abuse of process; and that no duty of care was owed to the Respondents DL or EL, by RS as counsel for the Applicant.

7The Respondent, RS, then commenced this Motion, seeking to dismiss or strike the Amended Answers as against him as added party.

8Both the Respondents DL and EL attended and opposed the Motion. They were both self-represented. Counsel on behalf of the Applicant, ML, did not oppose the Motion.

9The issues on this Motion then, are:

1. Is there a genuine issue requiring a trial of the Respondent RS’s claim that the claims as against him in the Amended Answers of DL and EL are barred by virtue of the doctrine of res judicata?

2. Should the claims as against the Respondent, RS, contained in the Amended Answers of DL and EL, be struck as an abuse of process?

3. Should the claims as against the Respondent, RS, contained in the Amended Answers of DL and EL, be struck based on the non-payment of costs owing by the Respondent, DL?

10For reasons set out below, I grant the Respondent’s Motion and dismiss the claims of the Respondents, David Lightfoot and Evelyn Lightfoot, as against the Respondent, Richard Startek. I find that the claims contained in the Amended Answers are the same claims, with the same factual foundation and legal principles as those advanced by the Respondent, DL, in his previous Statement of Claim, and dismissed by the Honourable Justice MacNeil. I find that the Respondents DL and EL are precluded from advancing the same claims again, by the doctrines of res judicata and abuse of process. I find I am able to make these findings and determinations without the need for a trial of the claims.

RELEVANT FACTS

11The Applicant, ML, and the Respondent, DL, separated in December 2020.

12In January 2021, the Applicant retained the Respondent, RS, to represent her in her separation from DL.

13In March 2021, ML and DL entered into an Agreement of Purchase and Sale for the sale of a jointly owned property located at 38 Dover Street in Dunnville. The Respondent, RS, handled the closing of the sale, on behalf of ML. the Respondent, DL, retained a lawyer, Mr. G. Sekhon, to represent him in his separation from ML and on the sale of the property.

14Prior to the closing of the sale transaction, DL’s lawyer instructed that all proceeds of sale be held in trust pending approval of both parties or a court order.

15The parties did not come to any further agreement regarding the release of the proceeds, with the exception of an agreement in July 2021 to release $50,000 to each party. The Respondent, DL, subsequently terminated his retainer with his lawyer and instructed that the $50,000 be returned to trust.

16In November 2021, the Respondent, RS, invested part of the proceeds of sale in a G.I.C., on the instructions of ML.

17In June 2022, an order was made in the family law proceeding that the proceeds of sale be paid into court, which was completed in July 2022.

18The Applicant, ML, commenced this Divorce Application in May 2021. The Application named DL and EL as Respondents.

19The Respondents DL and EL filed Answers to the Application in June, 2021.

20In March 2022, the Respondent, DL, filed a Statement of Claim as against the Applicant and the Respondent, ML. The claim sought the following relief:

• Disbursement of the sale proceeds from 38 Dover Street;

• For payment of all costs incurred by the Respondent, DL, relating to the non-disbursement of the funds;

• Recovery of lost investment profits;

• Damages for pain and suffering and/or unjust enrichment;

• Damages or repair of the Respondent's credit score; and

• That criminal charges and/or disciplinary action be brought against the Respondent, RS.

21In his Statement of Claim, the Respondent DL relied on an alleged conflict of interest, claiming that the Respondent acted for him and the Applicant in the sale transaction for 38 Dover Street. He relied on the continued refusal of the Applicant and Respondent RS to disburse the proceeds, as the cause of his damages.

22The Applicant and the Respondent, RS, each filed Statements of Defence to the Claim in April, 2022.

23In May 2022, the Respondent, RS commenced a Motion seeking to dismiss the Claim of DL, on the grounds that; the Claim disclosed no reasonable cause of action; the Claim was an abuse of process; that the Respondent, RS, owed no duty of care to the Respondent, DL; that the Respondent, RS acted only for the Applicant on the sale transaction and that the proceeds were held in trust pursuant to the instructions of his client, the Applicant.

24On October 20, 2022, the Honourable Justice MacNeil dismissed the action as against both Defendants, on the merits. In doing so she made the following findings:

• That the claim relating to the Plaintiff's credit score disclosed no reasonable cause of action;

• That the claims relating to criminal or disciplinary actions as against the Defendant, RS, disclosed no reasonable cause of action;

• That the Plaintiff had not pleaded any recognizable tort or duty of care on which to base his claim for damages;

• That the Defendant, RS, owed no duty of care to the Plaintiff and that each party had, at all times, their own counsel in the family law proceeding;

• That it was an abuse of process for the Plaintiff to advance claims in the civil action which were properly advanced in the family law proceedings, particularly all claims relating to the disbursement (or non-disbursement) of the proceeds of sale; and

• That the Plaintiff had the ability at bring a Motion in the family law proceeding for the disbursement of the proceeds of sale.

25The Honourable Justice MacNeil ordered that the Plaintiff, DL, pay costs to the Defendants in the combined amount of $6,000, inclusive. The costs have not been paid.

26In March 2022, the Respondent, DL, also filed a complaint with the Law Society of Ontario, alleging a conflict of interest on behalf of RS for acting on the sale transaction. The Law Society declined to take any steps, concluding that there was no evidence that RS ever acted as DL’s lawyer and that RS was not improperly holding the proceeds of sale of the Dover property, as he was acting pursuant to instructions from his client, ML.

27In February 2023, the Applicant ML served an Amended Application, adding an issue relating to the merger of property owned by the parties.

28In March 2023, the Respondents, DL and EL, served Amended Answers, adding the Respondent, RS as a party. The claims as against RS include:

• A request to remove RS as lawyer for the Applicant (this has already occurred as a result of the Amended Answers);

• A disbursement of the proceeds of sale;

• Damages; and

• Costs.

29The Amended Answers of DL and EL are identical. Both rely on the following grounds in support of the claims as against the Respondent, RS:

• Incorrect, unsubstantiated, defamatory and false claims made by the Applicant, ML, in her pleadings;

• Allegations of various forms of abuse, with no supporting facts;

• Debt and interest payments and destroyed credit scores as a result of the non-disbursements of the proceeds of sale of Dover Street;

• That the Respondent, RS, was in a conflict of interest in acting for the Applicant in the sale transaction;

• Interference with an interest in land, stemming from the claims contained in the Applicant's Amended Application;

• The impact of other actions taken by the Respondent, RS, on the instruction of ML; and

• Illegal and unethical behaviours.

30On March 21, 2023, the Respondent, RS, served an Answer to the Amended Answers. In his Answer he asked that the claims of the Respondents, DL and EL, as against him be dismissed on the following grounds:

• That the claims had previously been dismissed and could not be re-litigated;

• That the claims disclosed no reasonable cause of action or were an abuse of process; and

• That the Respondent, RS, never acted as a lawyer for DL and never owed a duty of care to DL.

31The Respondent, RS, commenced this Motion for Summary Judgment in April 2023. In support of his Motion he filed an Affidavit sworn April 11, 2023. His Affidavit confirmed his retainer with the Applicant in January 2021 and that all actions taken by him were on the instruction of his client or pursuant to a court order. He confirmed that he had never represented DL or EL.

32The Summary Judgment Motion was first returnable on May 9, 2023 before Henderson J. His Honour explained the nature of the Summary Judgment Motion and the requirements on the Respondents for complete and detailed Affidavit evidence in response. The Respondents were given until May 31, 2023 to file any further materials in response to the Motion.

33The Motion was returnable again before Gordon J. on June 27, 2023. It could not proceed on that day. The Respondent, DL, indicated that he wished to retain counsel. His time to file responding materials was further extended to July 14, 2023.

34In response to the Motion the Respondents, DL and EL, each filed Affidavits sworn April 27, 2023. The Affidavits are identical in content. The Affidavits:

• Acknowledge the retainer between the Respondent, RS and the Applicant;

• Confirm that the contents and claims contained in the two Affidavits are identical and that in support of their claims in their respective Amended Answers they rely on the steps taken by RS as instructed by ML;

• They maintain that the Respondent was in a conflict of interest in acting for the Applicant on the sale of the Dover Street property and that he owed a duty of care to them;

• They depose that as their claims were not heard before being dismissed by MacNeil J. they believe they are entitled to advance the claims in this proceeding;

• They depose that their damages and losses stem from the Respondent, RS, improperly withholding the proceeds of sale; and

• They maintain that they need to be able to respond to the claims made by ML in her Amended Application.

35The Respondents DL and EL also asked me to consider many other documents uploaded to Caselines. I did review the documents, with the exception of Offers to Settle. Most of the documents consisted of communications to and from counsel and orders and pleadings which pre-dated the Order of MacNeil J. I did not place significant weight on this unsworn evidence.

LEGAL CONSIDERATIONS

Summary Judgment

36Rule 16 of the Family Law Rules provides that:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

37Subsections (4) and (4.1) of Rule 16 provide that:

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

38Subsection (6) of Rule 16 provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

39Subsection (6.1) sets out the approach to a Summary Judgment Motion, as follows:

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence

40In Shalaby v. Nafei, 2022 ONSC 5615, Price J. discussed the test for Summary Judgment in the family law context. He discussed the applicability of the general approach set out by the Supreme Court, in Hryniak, to family law matters, as follows:

36Based on the guidelines the Supreme Court set out in Hryniak, 2014 SCC 7, [2014] 1 S.C.R. 87 [“Hryniak”], and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, I must first determine, based on the evidence before me, and without using the fact-finding powers under Rule 16(6.1), whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure. If there is no genuine issue requiring a trial, I must grant summary judgment: Hryniak, at para. 66.

37The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that the claim has a “real chance of success”: Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General) (2003), 2003 CanLII 24429 (ON CA), 64 O.R. (3d) 328 (Ont. C.A.), at para. 20. A self-serving affidavit is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence.

38The Supreme Court in Hryniak held that the rules governing summary judgment are to be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the courts to preserve the public’s access to justice. The Court’s comments apply equally to Rule 16 of the Family Law Rules, O. Reg. 114/99 sets out a similar framework for summary judgment in family law proceedings.

41The Court of Appeal in Ramdial v. Davis, 2015 ONCA 726, discussed the onus on the party responding to a Summary Judgment Motion, and the need to tender specific facts which establish a “triable issue”, in the proceeding. The Court indicated:

25As the party bringing the motion for summary judgment, the respondent had the burden of showing no genuine issue requiring a trial. As the responding party, the appellant had to comply with the dictates of rule 16(4.1), which required that she tender evidence of specific facts showing a genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but must set out, in an affidavit or other evidence, “specific facts showing that there is a genuine issue requiring a trial.”

26Rule 16 (4.1) reads as follows:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

27Each party had to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

28Further, in Corchis v. KPMG Peat Marwick Thorne, 2002 CanLII 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), at para. 6, this court affirmed that the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”.

29While these cases rely on the summary judgment rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, they apply also to the summary judgment rules in the Family Law Rules: Brusch v. Brusch, 2007 ONCA 612, at para. 1.

Res Judicata

42The doctrine of res judicata was developed to prevent abuses of the decision-making process. The basic tenet is that once a claim or dispute is judged it cannot be the subject of re-litigation. The goal of the doctrine is to allow for finality in judicial processes and prevent individuals from having to respond again to the same claims.

43The doctrine consists of two concepts: issue estoppel and cause of action estoppel.

44Issue estoppel is described as:

23 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.

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77

45Cause of action estoppel has been described as:

37The relationship between due diligence, and finality and order are deeply rooted in our common law. The law generally “requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 18. This animates, for example, the cause of action estoppel doctrine, which safeguards “the interest of an individual in being protected from repeated suits and prosecutions for the same cause” and “the finality and conclusiveness of judicial decisions”: K. R. Handley, Spencer Bower and Handley: Res Judicata (4th ed. 2009), at pp. 3-4. This doctrine achieves these ends through a due diligence component: it precludes a party from bringing an action against another party where the basis of the cause of action was argued or could have been argued in the prior action if the party in question had exercised reasonable diligence (Grandview (Town of) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, at pp. 634-38, citing Henderson v. Henderson (1843), 3 Hare 100).

Barendregt v. Grebliunas, 2022 SCC 22

46The application of both principles is discretionary. The Court must determine whether the application would cause unfairness to a party or work an injustice.

Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ONCA).

Abuse of Process

47The doctrine of abuse of process has been associated with the doctrine of res judicata, in the context of multiple proceedings. The doctrine recognizes the inherent right of a judge to prevent an unfairness or process that is contrary to the interests of justice. It has been engaged to prevent the misuse of the court procedures.

48In discussing the doctrine in the context of an attempt to relitigate a claim, the Supreme Court in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 stated:

“…..Canadian courts have applied the doctrine of abuse of process 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.”

DISCUSSION

ISSUE 1 - Is there a genuine issue requiring a trial of the Respondent RS’s claim that the claims as against him in the Amended Answers of DL and EL are barred by virtue of the doctrine of res judicata?

Making Findings

49In considering a Motion for Summary Judgment I must determine first whether I am able to make the findings of fact necessary to support the remedy sought, without the need for a trial.

50In this case, the first finding I am being asked to make is that the claims contained in the Amended Answers of the Respondents, DL and EL, are the same claims or causes of action as contained in the Statement of Claim of the Respondent, DL, and/or that the issues determined in that proceeding are the same issues to be determined in this proceeding.

51I find that they are.

52The claims contained in the Respondent’s Statement of Claim relied entirely on his allegations that:

• The Respondent, RS, acted as his lawyer in the sale transaction for the Dover Street property and that he, therefore, owed him a duty of care based on that solicitor-client relationship; and

• That the Respondent, RS, was personally liable to the Respondent for any loss sustained by him as a result of steps taken as lawyer for the Applicant.

53In relation to the first allegation, the Respondent maintained that the Respondent, RS, acted for both him and the Applicant on the sale transaction. He claimed that as his lawyer, the Respondent ought to have disbursed the sale proceeds as he instructed and in not disbursing, he caused financial losses to the Respondent. The damages or losses were variously described as lost investment profits, damages to the Respondent’s credit score, and general pain and suffering.

54In her Judgment of October 20, 2022, MacNeil J. specifically found that the Respondent, RS, owed no duty of care to the Respondent, DL, and that each party had, at all times, their own counsel in the family law proceeding. This finding represented a definitive answer to the question of whether there was a solicitor-client relationship between the Respondent, RS, and the Respondent, DL, such that RS ought to have disbursed the proceeds of sale as the Respondent instructed. It was also a definitive answer to the question of whether the Respondent was liable for any steps taken in the proceeding, pursuant to the instructions of his client. With no duty of care the Respondent RS had no liability for losses alleged to be sustained by the Respondent, DL, as a result of steps taken in the proceeding by the Applicant.

55MacNeil J. then went on to find that without the solicitor-client relationship or duty of care, there was no basis for a tort claim. Without a recognizable tort claim the Respondent, RS, could not be found liable for losses or damages alleged by the Respondent, DL, as a result of the failure to disburse the sale proceeds or for any other steps taken by the Applicant in the proceeding.

56MacNeil J. noted that the Respondent, DL, had the ability to bring a Motion in the family law proceeding, for the disbursement of the proceeds of sale. This issue would be properly determined between the Applicant and the Respondent, as to their respective entitlements to the proceeds of sale. It would not be based on whether the Respondent, RS, was responsible for that decision.

57I would also add that the Respondent is not precluded from arguing that he suffered losses as a result of the Applicant’s refusal to disburse the proceeds. That claim, however, would be against the Applicant and not the Respondent, RS.

58In relation to the Respondent’s subsequent claim against RS, contained in his Amended Answer, I find that the claims rely on the same allegations and the same conclusions; that he had a solicitor-client relationship with the Respondent, RS; that RS owed a duty of care to him; and that he suffered damages as a result of RS’s refusal to disburse the sale proceeds as he instructed.

59I find that all of the claims made by the Respondent, DL, in his Amended Answer, flow from the proposition that the Respondent, RS, is liable for any actions taken by the Applicant in the proceeding, including:

• Incorrect, unsubstantiated, defamatory and false claims made in the pleadings;

• Debts, interest payments, destroyed credit scores or other financial losses incurred as a result of the non-disbursements of the proceeds of sale; and

• Interference with an interest in land, stemming from the claims contained in the Applicant's Amended Application.

60All of these allegations, used to support the claims made, assume a duty of care owed by the Respondent, RS, to the Respondent, DL. That issue was determined by MacNeil J.; she found no duty of care.

61The Respondent is, in essence, advancing the same claims based on the same factual foundation, as he advanced in his Statement of Claim and which MacNeil J. dismissed.

62The Respondent is not entitled to re-litigate those same issues or advance the same claims in this proceeding. He is estopped from doing so.

63Specifically in answer to the three requirements of Issue Estoppel, I find:

Was the issue the same as the one decided in the prior decision?

64For the reasons set out above, I answer yes.

Was the prior judicial decision final?

65The Judgment of MacNeil J. was not appealed and is, therefore, a final decision.

Are the parties to both proceedings the same, or their privies?

66While the answer is clearly yes in relation to the Respondent, DL, the question here is whether the Respondent EL is his “privy.”

67Blacks Law Dictionary defines “privies” as:

“persons connected together, or having a mutual interest in the same action or thing, by some relation other than that of actual contract between them.”

68Privity is described in the Merriam-Webster Dictionary as:

“An interest in a transaction, contract, or legal action to which one is not a party, arising out of the relationship to one of the parties.”

69The concept of privy has been described as “elastic” and dependent upon the factual context. An individual with a “participatory interest” has been found to be a privy. To have a participatory interest in a proceeding a non-party must have a parallel interest in the merits of the prior proceeding and their interest must be directly affected by the outcome of that proceeding.

Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed.

70The claim of the Respondent, EL, appears to stem from the fact that she holds an interest in the former matrimonial home.

71The claims of the Respondent, EL, are inextricably linked to the claims of the Respondent, DL. If the Respondent, RS, does not owe a duty of care to DL, then he clearly would not owe a duty to EL. The success or failure of EL’s claims is wholly dependent on the success or failure of DL’s claims. There is no suggestion that the Respondent, RS, owed any duty of care or had a solicitor-client relationship directly with EL. Any loss claimed by EL stems from the same wrong alleged against RS; the failure to disburse the sales proceeds. The Respondents DL and EL confirmed this in their respective Affidavits, served in response to this Motion, wherein they deposed that their claims were identical and based on the actions of RS withholding the proceeds of sale.

72I find, then, that the findings of MacNeil J. apply equally to the Respondent, EL, as to the Respondent, DL; it is the same claim based on the same facts. I find she is a privy to DL in these circumstances.

73If I am wrong in that finding, then I find that the claim of the Respondent, EL, is precluded by virtue of the principle of “cause of action estoppel”.

74Cause of Action estoppel precludes a party from bringing an action against another party where the basis of the cause of action was argued or could have been argued in the prior action if the party in question had exercised reasonable diligence (emphasis added).

75I find that if the Respondents believed that EL had a claim as against the Respondent, RS, as a result of the alleged duty of care owed to DL, then that claim ought to have been included in the Statement of Claim commenced by DL. The Respondent, EL, would have no independent claim against RS; she requires a finding of a duty of care to DL. If that claim was not advanced in the previous action then it cannot now be advanced in this proceeding, based on the same factual and legal grounds. This would amount to the very mischief the doctrine of res judicata seeks to prevent; the same claim being advanced against the same Respondent in a different proceeding.

Genuine Issue for Trial

76For the above reasons I find that the Respondent, RS, has satisfied the onus of showing that the claims of the Respondent, DL and EL, are precluded by virtue of the doctrine of res judicata. The doctrine precludes the Respondents DL and EL from advancing the same claims (damages for failure to release the proceeds of sale) based on the same facts and the same legal principle.

77The next question then is, have the Respondents DL and EL, in their responding materials, raised a “genuine issue for trial?” I find they have not.

78When making this determination, I am entitled to assume that the Respondents have put forward all of the evidence they would offer at trial. The onus on a responding party is to provide cogent, admissible evidence of specific facts showing a genuine issue for trial.

79In this case, there are really only two main issues; did the Respondent RS owe a duty of care to the Respondent, DL and, if so, was he personally liable for the decisions made and instructions given by the Applicant, ML.

80Those are the issues raised in both the Amended Answers and the Affidavits filed by the Respondents in response to this Motion.

81These are the same issues with the same factual foundation before MacNeil J. on July 14, 2022. She made the finding that no duty of care was owed and that the Respondent, RS, could not be held liable for any losses sustained by the Respondent as a result of following the instructions of his client. This decision was not appealed. Subject to my discretion the Respondents are bound by those findings.

82Neither of the Respondents DL or EL have offered any facts or legal principles in their responding Affidavits or in their Amended Answers which differ from those raised before MacNeil J. on July 14, 2022.

83Justice MacNeil canvassed the facts and legal principles, and in a thorough decision she determined that she did not require a trial to make the findings and come to the conclusions she did, to make a determination on the claims of the Respondent DL.

84I have come to the same conclusion. I find there are no genuine issues requiring a trial of the Respondents’ claims as against the Respondent, RS.

85Contrary to the belief of the Respondents, they are not entitled to a trial. That is the purpose of the Summary Judgment regime; to identify cases in which the issues can be determined in a summary manner, without the need for a trial. This is one of those cases.

Can I fairly and justly adjudicate the dispute, and is this motion a timely, affordable, and proportionate procedure?

86For reasons set out above, I find that there are no issues raised or facts advanced that would impact my ability to fairly and justly adjudicate the claims contained in the Amended Answers. As indicated, the claims are based on two legal propositions which were previously judicially determined.

87I see no reason why the Respondent, RS, should have to face another costly legal proceeding to defend against claims based on the same factual foundations, which have already been dismissed.

88I find that this Summary Judgment proceeding is the most fair, proportionate and expeditious manner in which to adjudicate those claims.

Issue 2 - Should the claims as against the Respondent, RS, contained in the Amended Answers of DL and EL, be struck as an abuse of process?

89If I am wrong in my conclusions above, relating to the doctrine of res judicata, then I find that it would constitute an abuse of process to allow the claims of the Respondents as against RS to be advanced in this proceeding.

90As indicated, the claims are based on the same facts and legal propositions as those before MacNeil J. The Respondent, DL, had the opportunity at that time to advance his claims and argue his case. His claims were found to have no legal basis.

91To allow the Respondents to now advance the same claims in this proceeding, and require RS to again defend against the same claims would not, in my view, promote judicial economy, consistency or finality.

92As indicated above, the Respondents are not precluded from advancing their claims for any damages they perceive they have sustained, based on the actions of the Applicant. In that sense they will have their day in court; it just will not be against RS.

Issue 3 - Should the claims as against the Respondent, RS, contained in the Amended Answers of DL and EL, be struck based on the non-payment of costs owing by the Respondent, DL?

93Based on my findings above it is not necessary to address this remedy.

ORDER:

94For the reasons set out above the following order will issue:

1. The Amended Answers of the Respondent David Lightfoot and the Respondent Evelyn Lightfoot, as against the added party, Richard Startek, are dismissed.

2. If the parties are not able to resolve the issue of costs of the Motion the parties may provide written cost submissions, not to exceed three pages, double-spaced, with Bills of Costs and any relevant Offers to Settle, as follows:

a. The Respondent Richard Startek to provide submissions within 15 days;

b. The Respondents David Lightfoot and Evelyn Lightfoot to provide responding submissions within 15 days thereafter; and

c. The Respondent Richard Startek to provide reply submissions, if necessary, limited to two pages, within five days thereafter.