Ontario Superior Court of Justice

Court File No.: CV-22-0046-00
Date: 2025-06-13

Between:
David Brian Cavner, Plaintiff
and
Lakehead District School Board, Defendant

Appearances:
L. Kampela, for the Plaintiff
R. Howe, for the Defendant

Heard: March 17, 2025, at Thunder Bay, Ontario
Before: S. J. Wojciechowski

Reasons on Motion for Summary Judgment

Introduction

[1] This motion for summary judgment was brought by the defendant, Lakehead District School Board (“the Board”), on the basis of res judicata, cause of action estoppel, and abuse of process.

[2] Essentially, the Board asserts that the plaintiff, David Brian Cavner (“the Plaintiff”), already had a chance to adjudicate the issues for which he is seeking damages, albeit against another defendant. The Board argues that it shared common interests with the other defendant, and since the previous claim was dismissed, the Plaintiff should not be able to advance a new claim – this time as against the Board – premised on the same factual matrix as the claim that was dismissed.

Background

[3] The Plaintiff alleges that he was sexually assaulted by a teacher, Donald Fisher (“Fisher”), in the 1960s, when the Plaintiff was a grade six student. The alleged sexual assaults occurred while Fisher was teaching at Redwood Public School, where the Plaintiff was attending, which was a school operating within the jurisdiction of the Board.

[4] A statement of claim was issued by the Plaintiff on January 17, 2012, as against Fisher seeking general damages, special damages, and economic losses as a result of the sexual assaults (“the Original Claim”). At that time, no claim was advanced as against the Board.

[5] Ultimately, the Original Claim was administratively dismissed for delay on June 17, 2014. Despite a motion brought three years later in 2017 to set aside the administrative dismissal, a decision released May 8, 2017, determined that, notwithstanding the apparent inadvertence of counsel, the delay in prosecuting the claim and the prejudice to Fisher was too great. As such, the dismissal was not set aside, and the Plaintiff was precluded from proceeding further with his action.

[6] On February 7, 2022, the Plaintiff issued another action against the Board (“the Current Action”), providing the framework for this motion. Again, general damages, special damages, and economic losses are sought as against the Board, plus aggravated and punitive damages for negligence, breach of fiduciary duty, and vicarious liability for the alleged tortious acts of Fisher.

[7] A statement of defence was filed by the Board on June 20, 2022, which was subsequently amended on May 14, 2024, in order to plead the defences relied upon in this motion. The Plaintiff has responded to a demand for particulars, which confirmed that the sexual assaults alleged in the Original Claim are the same sexual assaults alleged in the Current Action. In addition, examinations for discovery were completed on August 28, 2023, and the evidence adduced supported the nexus of the underlying facts between the Current Action and the Original Claim.

Positions of the Parties

[8] The Board takes the position that, if the Plaintiff intended to seek damages as against the Board, he should have done so at the same time he commenced the Original Claim against Fisher.

[9] Because the identical fact situation applies to both the Original Claim and the Current Action, the dismissal of the Original Claim is binding and should apply to the Current Action. The causes of action are essentially identical, insofar as the underlying facts, and, as such, the Plaintiff should have included both Fisher and the Board in the Original Claim. Because he did not, the Board is prejudiced by the Plaintiff’s delay in bringing the sexual assault issues to its attention.

[10] The Board’s current position is further compromised by the fact that the Plaintiff was aware of Fisher’s deteriorating condition, including loss of cognitive function and memory, and did nothing to push the Original Claim forward nor address his claim as against the Board.

[11] Fisher died on November 29, 2016. The Board maintains that it had no knowledge of the Plaintiff’s claims – neither against Fisher nor the Board – until the Current Action was filed and served.

[12] In response, the Plaintiff maintains that there is a difference in the cause of action between the Original Claim and the Current Action. In addition, while the factual basis for the two actions is similar, since the Board was not a party to the Original Claim, res judicata does not apply. Finally, with the Original Claim having been administratively dismissed, the merits of the Plaintiff’s claim have never been adjudicated and should be allowed to proceed.

Decision

[13] I accept the Board’s position that the preconditions for establishing cause of action estoppel are noted in Elguindy v. The Warden of Warkworth Institution, 2011 ONSC 4670, para 27, citing Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, [1976] 2 S.C.R. 621, as the following:

1. There must be a final decision of a court of competent jurisdiction in the prior action;
2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;
3. The cause of action in the prior action must not be separate and distinct; and
4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

[14] With respect to the Original Claim, the decision of Newton J. is final in the sense that there was no appeal advanced. However, the decision of Newton J. only addressed the issue of delay and the prejudice to Fisher if the action against him was allowed to proceed. The decision of Newton J. did not express any opinion on the merits of the Original Claim, but instead acknowledged the time it had taken to advance the Original Claim, the extended period of time between the administrative dismissal and the motion brought to set aside the dismissal, and Fisher’s failing health, which had deteriorated between the commencement of the Original Claim and the date Newton J. delivered his decision.

[15] There was, therefore, no adjudication or decision related to the alleged sexual assault and Fisher’s tortious conduct. These are the issues raised in the Current Action, which will ultimately involve a determination of the legal relationship between Fisher and the Board, their relationships with the Plaintiff, and whether these relationships give rise to findings of vicarious liability on the part of the Board for the actions of Fisher.

[16] However, a primary determination must first be made as to whether or not Fisher sexually assaulted the Plaintiff. No evidence and no facts have been adduced with respect to the sexual assaults, and a court has not been asked to carefully consider these allegations nor deliver a decision addressing Fisher’s conduct. No decision on the merits of the alleged sexual assault has been made, and there can be no conflict with any previous decision if this Current Action proceeds to trial.

[17] In terms of the parties, clearly Fisher and the Board are distinct legal entities with distinct legal relationships to the Plaintiff. I disagree with the Board’s reliance on the case of Martin v. Goldfarb, 2006 CarswellOnt 4355, to base its argument that there is a sufficient degree of identification between Fisher and the Board such that the administrative dismissal of the Original Claim should be found to be a binding determination on the Current Action. In Martin, the court considered the relationship between a plaintiff and two corporate entities which he owned, and, while acknowledging the distinct legal nature of the three parties, determined that they effectively shared the same interests and were seeking damages based upon the same factual nexus which would all flow to the plaintiff if successful.

[18] While, presumably, there would have been an employer/employee relationship between the Board and Fisher, this does not amount to the same degree of identification as existed in Martin. The relationship between the Plaintiff and Fisher, and the Plaintiff and the Board, are sufficiently distinct and give rise to different legal theories of liability. Fisher is alleged to have sexually assaulted the Plaintiff. This is an action grounded in violence and physical and emotional harm which, if proven, would entitle the Plaintiff to damages. The Board, on the other hand, is not alleged to have laid hands on the Plaintiff. Rather, it is the nature of the employment relationship that grounds the legal consideration of any vicarious liability for Fisher’s conduct.

[19] These distinctions, and the differing legal theories of liability – despite being based to a large degree on the same factual matrix – lead me to conclude that the Original Claim and the Current Action are different, and that the administrative dismissal of one should not impede the progress of the second.

[20] The Board made additional submissions that the cause of action as against the Board should have been raised in the Original Claim, and, as such, should now be precluded from proceeding separate and apart from the Original Claim. The argument here is that the Plaintiff is currently advancing theories of vicarious liability for facts and issues which have already been determined, i.e., dismissed, and, without any new evidence being relied upon in the Current Action, the Plaintiff should not be entitled to circumvent the unfavourable results of the Original Claim.

[21] Citing the case of Grandview (Town) v. Doering, [1976] 2 S.C.R. 621, the Board asserts that the application of res judicata works to ensure an end to litigation such that judgments between the same parties are final, not only with respect to matters dealt with, but with respect to matters which could have been raised with the exercise of reasonable diligence. A plaintiff should be precluded from splitting its case, and a second action should not be permitted to proceed if it could have been brought as part of the first action that was adjudicated: see R. v. T.G., 2017 ONSC 3213, para 41. Allowing a plaintiff to proceed with a second identical action would bring the administration of justice into disrepute and would allow a collateral attack on a previous decision to dismiss an earlier action for delay: see Davies v. Hodgins, 2013 ONSC 6444, para 7.

[22] The position advanced by the Board – relying upon Grandview, T.G., and Davies – applies when the parties are the same in both the first and second actions, or where there has been an adjudication on the merits. There is no dispute that, where one party sues another unsuccessfully, another action between the same two parties alleging the same cause of action and resulting damages falls squarely within the doctrine of res judicata. A similar situation would exist where a party fails to claim all potential relief or causes of action as against another based upon a known set of facts, obtains a result after adjudication, and then attempts to allege additional causes of action for similar damages against that same party.

[23] Fisher and the Board are distinct parties. No adjudication of the Plaintiff’s claim against Fisher was ever undertaken, and no factual or legal issues were determined in the Original Claim. An administrative dismissal for delay is not an adjudication on the merits, and the Board cannot rely upon that dismissal – as against Fisher – to preclude the Plaintiff from advancing a claim for vicarious liability against the Board.

[24] The alternative argument of the Board is that, if its motion does not succeed on the basis of res judicata or issue estoppel, the Plaintiff’s claim should be struck because it is an abuse of process.

[25] Abuse of process is less about meeting the legal requirements of issue estoppel and/or res judicata and how these impact the interests of the parties, and more about the integrity of the administration of justice: see Andre Gravelle v. Ontario, 2012 ONSC 5149, para 135.

[26] At para. 188 of his decision in Gravelle, Quigley J. notes the decision of Arbour J. in Toronto v. C.U.P.E., Local 79, 2003 SCC 63, which provides two policy grounds underlying the doctrine of abuse of process: (i) there should be an end to litigation, and (ii) no one should be “twice vexed by the same cause”. In addition, other policy grounds listed include the need to preserve the court’s resources and the resources of the parties, the desire to avoid inconsistent results, and the principle of finality, which is central to the proper administration of justice.

[27] Quigley J. does dismiss his plaintiff’s claim based on abuse of process, among other reasons, but the factual basis is a previous claim against the Crown for actions of the Crown’s employees, with the second action being a claim against individually named employees of the Crown. Once the first action was heard and dismissed, the adjudication of the first claim would consider the actions and legal consequences of the conduct of the Crown’s employees. Advancing another claim, based upon the facts in the first claim, against the employees whose actions would have been already considered, was an abuse of process. Evidence was led, legal findings were made, all of which would have considered the actions of the employees named in the second action. To permit the plaintiff to essentially advance the same theories of liability that had already been adjudicated was found by Quigley J. to be an abuse of process.

[28] In the present case, unlike Gravelle, no evidence has been introduced, no findings of fact have been made, and no decision on the legal consequences flowing from the actions of Fisher or the Board was reached. The only decision made was that, based upon the actions of the lawyer representing the Plaintiff in the Original Claim, and Fisher’s state of health, the claim would not be permitted to proceed. Without the merits of the Original Claim being considered, the Current Action proceeding would not result in anyone being “twice vexed”, especially not the Board, which was not part of the Original Claim.

[29] I do not find that the principles associated with the doctrine of abuse of process would be offended if the Current Action was permitted to proceed, having regard to the nature of the administrative dismissal of the Original Claim.

Conclusion

[30] The motion of the Board for summary judgment is dismissed.

[31] If either party is seeking costs with respect to this motion, then written submissions in support of an entitlement to costs shall be delivered by Friday, June 27, 2025. Reply submissions, if any, shall be delivered by Friday, July 11, 2025. Any submissions prepared shall not exceed five pages, double spaced, not including attachments.

“Original signed by” ___
S. J. Wojciechowski

Released: June 13, 2025