Geisser v. City of Prince George Date:, 2016 BCPC 151

Citation: Geisser v. City of Prince George Date: 20160503 2016 BCPC 0151 File No: 1548346 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: COLLEEN JUNE GEISSER CLAIMANT AND: CITY OF PRINCE GEORGE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. DOULIS Appearing on their own behalf: C. Geisser Counsel for the Defendant: M. Houg Place of Hearing: Prince George , B.C. Date of Hearing: March 16, 2016 Date of Judgment: May 3, 2016

[1] On December 16, 2015, Colleen June Geisser filed in the Provincial Court of British Columbia a Notice of Claim (the “Claim”)against the City of Prince George. She sets her out her claim as follows: The City of Prince George has discriminated against myself with bias, prejudice, abuse of authority resulting in considerable loss ofincome by destroying the possibility for my incorporating a viable business on my property located in the City which is zonedcommercial. Property is located at 3505 Pierreroy Road and extends to Landsdown Road in the City of Prince George, B.C.” [2] Ms.

Geisser says the City of Prince George’s wrong doing is ongoing and claims $25,000 in damages for “discrimination.” [3] The City of Prince George (the “City”) has filed a Reply denying having discriminated against Ms. Geisser. The City assertstwo defences:

a) Ms. Geisser’s Claim as presented does not constitute a claim known to law; and

b) Ms. Geisser seeks to relitigate her counterclaim in B.C. Supreme Court Action No. 1138684, which was dismissed on April 30,2015. [4] In a Settlement Conference held March 16, 2016, Ms. Geisser identified her loss of business opportunity as that arising fromthe City’s ongoing refusal to allow her to store shipping or cargo containers (the “Storage Containers”) on her property at 3505 PierreroyRoad, in Prince George, B.C. She says that Storage Containers are ubiquitous and the City’s steadfast refusal to allow her to keepStorage Containers on her property is discriminatory. [5] My decision on whether the Claim could proceed is based on:

a) the Claim, as amplified by the particulars provided by Ms. Geisser;

b) Mr. Justice Abrioux’s April 30, 2014 decision, City of Prince George v. Geisser, 2015 BCSC 697;

c) Human Rights Code, RSBC 1996, c 210;

d) Small Claims Act, RSBC 1996, c. 430;

e) Small Claims Rules; and

f) relevant case authorities. JURISDICTION OF THE COURT [6] Ms. Geisser has brought her Claim in Provincial Court and therefore the Small Claims Act and Small Claims Rules apply. [7] Rule 7(14)(

i) empowers a judge to dismiss a claim at a settlement where, after discussion with the parties and reviewing thefiled documents, the judge determines that it: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous or anabuse of process. This rule furthers the purpose of the Small Claims Act, set out in s. 2, which holds: The purpose of this Act and the Rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner. [8] The overarching purpose to the Small Claims Act is echoed in the Introduction to the Small Claims Rules, which states, in part: The purpose of these rules is to make it as easy as possible for people to use the courts to resolve their disputes. CLAIM OF DISCRIMINATION [9] Ms.

Geisser claims damages for discrimination as an actionable wrong. T he Supreme Court of Canada has ruled in SenecaCollege of Applied Arts and Technology v. Bhadauria, (SCC), [1981] 2 S.C.R. 181 (“Bhadauria”), that “discrimination”does not give rise to a civil cause of action. In Bhadauria the Court held that the province had enacted framework legislation toadminister and adjudicate claims of discrimination which foreclosed any civil action. [10] In British Columbia, the Human Rights Code, RSBC 1996, c 210, is legislated to identify and remedy discrimination.

The B.C.Human Rights Tribunal is empowered to adjudicate human rights complaints and provide a means of redress to those claiming

discrimination contrary to the Human Rights Code. [11] Although Ms. Geisser alleges the City has discriminated against her, she does not articulate the basis for this allegation. Morespecifically, she does not cite any of the enumerated protected characteristics under of the Human Rights Code as the reason for theCity’s alleged discriminatory conduct. Still, it is the Human Rights Tribunal and not this Court which must determine whether Ms.Geisser has a viable claim for discrimination under the Human Rights Code. [12] Recently, the Supreme Court of Canada in Honda Canada Inc. v.

Keays, 2008 SCC 39 , re-affirmed its earlier ruling inBhadauria there is no common law tort of discrimination. See: Gichuru v. The Law Society of British Columbia, 2014 BCCA 396, Parchment v. British Columbia, 2015 BCSC 1006 . [13] Ms. Geisser’s claim for damages arising from discrimination does not disclose an actionable wrong recognized at common law. Any complaints about discrimination need to be pursued under the Human Rights Code before the B.C. Human Rights Tribunal. RES JUDICATA [14] In his Reasons for Judgment in the case of City of Prince George v.

Geisser, 2015 BCSC 697 (“Reasons for Judgment”), JusticeAbrioux ruled on Ms. Geisser’s counterclaim (the “Counterclaim”) against the City. The City says Justice Abrioux’s decision precludesMs. Geisser’s Claim. In Paragraphs 2, 3, and 24 of his decision, Justice Abrioux states the proceeding before him commenced onFebruary 22, 2011. The City initially sought an order prohibiting Ms. Geisser from having unenclosed Storage Containers on herproperty at 3505 Pierreroy Road, Prince George. B.C. The City did not pursue its claim to trial because Ms.

Geisser voluntarily removedthe Storage Containers. [15] In her response to the City’s civil claim, Ms. Geisser states : ...the defendant has acquired and brought to the Lands steel storage containers suitable for use as storage of personal effects by residentsof a mobile home, intending thereby to continue to carry on the business of storage. [16] The “Lands” referred to above and subject of the City’s February 22, 2011, civil claim is Ms. Geisser’s property located at 3505Pierreroy Road, Prince George, B.C. (the “Property”) subject of her Claim in these proceedings. [17] On March 11, 2011, Ms.

Geisser filed her counterclaim in BCSC file 1138684 seeking damages against the City for havingallegedly misappropriated a portion of the Property and for refusing to permit her to have the Storage Containers on the Property. [18] In Paragraph 50 of his Reasons for Judgment, Justice Abrioux sets out Ms. Geisser’s position with respect to the matters inissue: According to Ms. Geisser the City knowingly permitted her to use the Property for warehousing and storage purposes for many years.

The position it took in August 2010 was a deliberate attempt to interfere with her business plans which were to provide a service toadjacent mobile home owners or renters. Accordingly, she should receive a declaration from the court that her intended use of theProperty was a permitted use. [19] In Paragraph 62 of his Reasons for Judgment, Justice Abrioux set out his findings of facts. Relevant to Ms. Geisser’s Claimbefore this court are the following findings: (g) ...I find that at no point in time, from the date the Property was initially purchased by Ms.

Geisser through her company GypsyHoldings until the date of trial, was warehousing or storage for a commercial purpose a permitted use of the Property. This was the caseirrespective of whether the Property was zoned URS-1B (Urban Residential), C-5A (Highway Commercial) or C6 (HighwayCommercial); (

h) the storage units that Ms. Geisser placed on the Property for a commercial purpose in August 2010 were not a permitted use of theProperty; and (

i) the City’s decision to object to Ms. Geisser’s use of the Property occurred in August 2010 as a result of a complaint received to theeffect that Ms. Geisser was intending to use the Property for commercial storage purposes. The City was of the view this was anunauthorized use and took steps to enforce its position. [20] Mr. Justice Abrioux dismissed Ms. Geisser’s claim that the City had misappropriated a portion of her Property. [21] Justice Abrioux went on to deal with Ms. Geisser’s second claim relating to the Storage Containers.

He states: [70] The second claim relates to the City allegedly having improperly used the zoning process to prevent Ms. Geisser from legitimatelyusing the Property for commercial storage purposes. [71] The basis for this claim is either Ms. Geisser’s erroneous belief based on a misunderstanding of the zoning process or more likelyan intentional attempt many years later to mischaracterize what had occurred in an attempt to build a case against the City. [72] The documentary evidence is clear that Ms. Geisser was involved in the changes in zoning up to 2007. A

summary is contained inMs. Stanker’s memo of October 18, 2010. There is also the restrictive covenant in favour of the City that Ms. Geisser signed on behalf

of Gypsy Holdings on May 15, 1991. The use of the Property for commercial storage purposes in the manner intended by Ms. Geisser in2010 was not a permitted use under that restrictive covenant. [73] It may be that Ms. Geisser did not have personal knowledge of the 2007 review of City bylaws but the City followed allappropriate steps prior to those revised bylaws being passed including making the necessary advertisements in the local media. In anyevent, the revised bylaws did not change the uses which Ms. Geisser could make of the Property. [74] In the alternative, were it Ms.

Geisser’s position that the use of the Property were a lawful non-conforming use she bears the onusof proof on this issue. See Section 911(1) of the Local Government Act, R.S.B.C. 1996, c. 323; North Pender Island Local TrustCommittee v. Conconi, 2007 BCSC 1436 at para. 24. [75] Based on my findings of fact, which are based in part on Ms. Stanker’s evidence, I conclude Ms. Geisser has not satisfied thisonus. [76] That is because the City accepts that, prior to the summer of 2010, Ms.

Geisser’s use of the Property for limited storage purposeswas either a permitted use or a lawful non-conforming use. [77] This changed when Ms. Geisser arranged to have commercial storage units placed on the Property in August 2010. She had whatshe believed to be a valid business plan. The units would be available to owners or renters of mobile homes who lived in the vicinity ofthe Property. [78] While Ms. Geisser may have had valid reasons for developing this business, the reality of the situation was that it was not apermitted use of the Property or a lawful non-conforming use.

Upon receipt of a complaint, the City investigated and acted promptly toenforce its position and have the storage containers removed. In doing so, I find that its employees acted entirely appropriately. There isabsolutely no evidence, apart from Ms. Geisser’s belief, that the City’s employees acted improperly or maliciously in her regard. [22] Mr. Justice Abrioux also dismissed Ms. Geisser’s claim the City’s employees, through their malicious acts, cause her emotionaldistress. He found (at Paragraph 91) that Ms.

Geisser’s serious allegations against the City, which she maintained throughout the trial,were meritless. ANALYSIS [23] At some point the litigation of a dispute must end. Litigants cannot repeatedly make the same claims to court in search of adifferent outcome. In Canada, the Court has at its disposal four interrelated common law doctrines to effect that result: (

a) cause ofaction estoppel; (

b) issue estoppel; (

c) the rule against collateral attack; and, (

d) abuse of process. In Danyluk v. Ainsworth TechnologiesInc., 2001 SCC 44 (“Danyluk”), Mr. Justice Binnie for the unanimous court articulated the underlying philosophy of thesedoctrines: [18] The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward toestablish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at thecherry. The appellant chose the [Employment Standards Act] as her forum. She lost.

An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [24] The doctrines of cause of action estoppel and issue estoppel are species of res judicata. Cause of action estoppel prevents alitigant from relitigating the same cause of action between the same parties. It also prevents a party from litigating an issue that ought tohave been pursued in a previous proceeding.

Issue estoppel prevents a litigant from re-litigating an issue that has already been decided ina previous proceeding, even though the issue arises in the context of a different cause of action. CAUSE OF ACTION ESTOPPEL [25] In Mohl v. U.B.C., 2006 BCCA 70 at Paragraph 23 (“Mohl”), the B.C. Court of Appeal adopted the followingdefinition of cause of action estoppel: Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latterhaving been between the same parties or their privies and having involved the same subject matter.

In such a case the bar is absolute inrelation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. [26] Mr. Justice Smith, for the unanimous court in Mohl, goes on to describe what is meant by “cause of action.” He states atParagraph 24: [24] The meaning of “cause of action” in this context is clear. In Letang v. Cooper, [1965] 1 Q.B. 232 at 242-43 (C.A.), Diplock L.J.said, “A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy againstanother person.” In Johnson v.

Refuge Assurance Co. Ltd., [1913] 1 K.B. 259 at 264, 82 L.J.K.B. 411 (C.A.), Kennedy L.J. said that theword “action” in its usual meaning “refers to any proceeding in the nature of a litigation between a plaintiff and a defendant”. [27] In Cliffs Over Maple Bay, Madam Justice Newbury set out the requirements of cause of action estoppel at Paragraph 28:

a) There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”];

b) The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirementof “mutuality”];

c) The cause of action in the prior action must not be separate and distinct; and

d) The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if theparties had exercised reasonable diligence. APPLYING THE ELEMENTS OF CAUSE OF ACTION ESTOPPEL [28] Finality: Justice Abrioux’s decision in City of Prince George v. Geisser, 2015 BCSC 697, was made after a trial of Ms.Geisser’s counterclaim in Prince George Court File: 1138684 (“Counterclaim”) on its merits. Ms. Geisser indicates Justice Abrioux’sdecision has been appealed. In J.R.T. Nurseries Inc. v. 0843374 B.C.

Ltd., 2016 BCSC 501 , Justice Gauer discussed the fact ofa pending appeal in assessing the finality of a decision. He states at Paragraphs 18-19: [18] I accept that a trial judgment cannot be considered final for the purposes of res judicata if it is under appeal; see, forinstance, Grant McLeod Contracting Ltd v. Forestech Industries Ltd, 2008 BCSC 756 at para 14. [19] But where the appeal is abandoned, the judgment is no longer under appeal and becomes final, whatever the parties may choose todo by way of compromise of the award.

This is because all available reviews have been exhausted or abandoned - see Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para 46; and D. J. Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham:LexisNexis Canada Inc., 2015) at 169-171. There is no evidence to suggest Ms. Geisser’s appeal of Justice Abrioux’s decision in City of Prince George v. Geisser, 2015 BCSC 69has been abandoned. [29] Mutuality: The parties to these proceedings are the same as in the Counterclaim. The fact that Ms.

Geisser is the claimant inthe first instance in the current proceedings is a distinction without a difference. [30] Separate and distinct: Ms. Geisser’s Counterclaim included her complaint that the City of Prince George refused to permit herto move Storage Containers onto the Property to conduct a commercial storage business. The facts she relies on to support her Claim inthese proceedings are substantially the same facts supporting the second prong of her Counterclaim.

Although the relief she seeks in herClaim is not the same as in her Counterclaim, the two proceedings are not separate and distinct. [31] Due Diligence: Even if Ms. Geisser may argue something slightly different before this court than she did before JusticeAbrioux, with due diligence she could have made those arguments in City of Prince George v. Geisser, 2015 BCSC 697. [32] I find that in her Claim, Ms. Geisser is trying to relitigate the same cause of action as the second part of her Counterclaim.

If Iam wrong in that regard, then I must consider if she is attempting to relitigate one of the same issues in her Counterclaim which was triedand decided in City of Prince George v. Geisser, 2015 BCSC 697. ISSUE ESTOPPEL [33] The pre-conditions for issue estoppel were set out in Angle v. Minister of National Revenue, (SCC), [1975], 2S.C.R. 248, as cited in Danyluk, at Paragraph 25:

a) the same question has been decided;

b) the judicial decision which is said to create the estoppel was final; and,

c) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppelis raised or their privies. [34] If this three-part test is made out, the court retains a residual discretion to refuse to enforce the estoppel where its applicationwould produce an injustice. (See Danyluk, Paragraphs 33, 62-66, 80) Has the same question been decided? [35] In her Claim, Ms. Geisser seeks damages against the City arising from its refusal to permit her to place Storage Containers onthe Property to generate business revenue.

In my view, Justice Abrioux ruled on this very issue in his Reasons for Judgment atParagraphs 70-78. Was the judicial decision which is said to create the estoppel final? [36] This matter was tried before Justice Abrioux on February 22- 25, 2015 and March 25-27, 2015. In his Reasons for Judgment,Justice Abrioux stated at Paragraph 7: For the reasons that follow, the counterclaim is dismissed. Notwithstanding Ms. Geisser’s steadfast belief to the contrary, I find that herallegations against the City are without substance. I have also concluded that the City’s employees acted entirely reasonably at all

material times. [37] Justice Abrioux concludes his judgment as follows: [89] On the basis of my findings of fact and the conclusions I have reached, it follows that the counterclaim is dismissed. [90] Ms. Geisser, in her counterclaim, made serious allegations of misconduct against the City and certain of its employees. Theallegations include misappropriating a portion of her Property by deceit, deliberately using zoning bylaws proven to interfere with hercommercial interests, and acting in a malicious manner against her with the intention of invading her privacy and causing her pain andsuffering.

By the conclusion of the trial, the allegations also included deceiving her such that she signed the plan which consolidated thethree parcels if, in fact, she signed the plan at all. [91] While I have sympathy for Ms. Geisser that her grandson passed away and that she was diagnosed with cancer and had a lengthyperiod of treatment, this in no way can excuse the serious allegations she has made against the City and the fact she maintained themthroughout the trial. I have found that those allegations were without merit. [38] In his Reasons for Judgment, Justice Abrioux dismissed Ms.

Geisser’s Counterclaim after a trial on its merits. This decision isfinal subject only to an appeal, which may or may not be ongoing. Were the parties to the judicial decision or their privies the same persons as the parties to the proceedings in which the estoppel israised or their privies? [39] The parties to the Claim in these proceedings are the same parties in City of Prince George v. Geisser, 2015 BCSC 697. Residual Discretion [40] As res judicata is an equitable doctrine, the Court can refuse to apply cause of action or issue estoppel where to do so wouldcause an injustice. In J.R.T.

Nurseries Justice Gauer notes the circumstances in which the court will decline to rigidly apply the doctrineof res judicata. He states at Paragraph 43: [43] The court’s discretion in the application of the doctrine of res judicata was considered in British Columbia v. Tekavec, 2014BCCA 444 , leave to appeal to SCC refused (SCC), : [20] Where the requisite elements of res judicata have been established, the court retains a limited discretion not to apply the doctrinein special circumstances such as fraud or new evidence, or where necessary to prevent unfairness or injustice.

This discretion is rarelyexercised, however, in a court-to-court context, as opposed to a tribunal-to-court context. [41] In R. v. Thompson, 2014 ONCA 43 leave to appeal refused, (SCC), the Ontario Court of Appealidentified some of the factors relevant to the court’s inquiry into whether the operation of issue estoppel would create unfairness. WattJ.A. states for the unanimous court at Paragraph 84: [84] To determine whether the operation of issue estoppel would create unfairness through according preclusive effect to the results ofa prior proceeding in a subsequent proceeding requires a nuanced inquiry.

Relevant factors in this inquiry may include, but are notlimited to: i. the nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings [Penner v.Niagara Regional Police Services Board), 2013 SCC 19 , at Paragraphs 42 and 45]; ii. the reasonable expectations of the parties in relation to the scope and effect of the prior proceeding as informed by the text andpurpose of the enabling legislation (Penner, at Paragraph 47); iii. the risk of adding to the complexity and length of the estoppel-creating proceeding by attaching undue weight to its resultsthrough the application of issue estoppel (Penner, at Paragraph 62); iv. the availability of an appeal from the finding in the estoppel-creating proceeding (Danyluk, at Paragraph 74); and v. whether, in all the circumstances of the case, the application of issue estoppel would work an injustice (Danyluk, at Paragraph80). i. the nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings [42] In this case, there is little if any difference between the purposes and process involved in Ms.

Geisser’s Claim. This is asituation of court-to-court proceeding as compared to tribunal-to-court proceedings. There are no on-going administrative proceedings inthe present case. The estoppel-creating proceeding is one of a superior court. [43] As indicated in British Columbia v. Tekavec, 2014 BCCA 444 , the court’s residual discretion not to apply res judicatain court-to-court proceedings is attenuated. Recently, in Hill v. Hill, 2015 ABQB 436 , Mr. Justice R.A.

Hall of the AlbertaCourt of the Queen’s Bench expressed doubt that, absent fraud or new evidence, the Court can even exercise residual discretion wherethe original final decision and the current matter involve court proceedings. He states at Paragraph 19:

[19] The case of Danyluk v. Ainsworth, 2001 SCC 44 was a case when a matter had been heard by an AdministrativeTribunal. The affected individual commenced a court action for damages for wrongful dismissal. The Supreme Court of Canada heldthat issue estoppel applied, but that, in the circumstances where the original decision was one made by an Administrative Tribunal, ratherthan a Court, the Court had a residual discretion to ensure fairness in the outcome. I am not satisfied that ‘the discretion’ describedin Danyluk should be applied in a court to court situation.

In a court to court situation, I am not persuaded that there is this third“fairness” approach. The previous two approaches respecting new evidence or fraud, each are designed to ensure trial fairness. I find, atleast in Alberta, in court to court circumstances, the two categories of new evidence and of fraud, are exhaustive and that a third“fairness” approach is not available. [44] In Guardian Insurance Company of Canada v. Roman Catholic Episcopal Corp. of St.

John's, 2013 NLCA 62 , theNewfoundland Court of Appeal also distinguished the application of the fairness exception from tribunal-to-court cases and court-to-court cases because of “the enormous range and diversity of structures, mandates and procedures of administrative decision-makers.’’ [45] In Eimskip, Usa, Icelandic Steamship Inc. v. The Icelandic Steamship Company Limited, 2015 NLCA 17 (“Eimskip”),the Newfoundland Court of Appeal again considered the exercise of the Court’s residual discretion to refuse to apply the doctrine ofissue estoppel in tribunal-to-court versus court-to-court proceedings. Mr.

Hoegg J.A., for the majority, upon canvassing the relevantauthorities indicated the court has limited discretion not to apply the doctrine. The relaxation of the application of issue estoppel shouldoccur in only the clearest of cases. Justice Hoegg concludes at Paragraph 40: [40] In

summary, the jurisprudence shows that a court has a residual discretion not to apply issue estoppel on the basis of fairnesswhen the pre-conditions for its application are met. However, the exercise of this discretion is circumscribed because of the law’s stronginterest in the finality of litigation. As well, it can be reasonably inferred from the case law that the discretion not to apply the doctrine isbroader in tribunal-to-court situations than it is in court-to-court situations.

In this province, the discretion not to apply the resjudicata doctrines in court-to-court situations has been limited to cases where the resisting party did not receive a full and fair hearing inthe earlier litigation (Furlong).

However, the statement of principle from the Supreme Court in Penner that a court may decline to applythe doctrine where to do so would work an injustice, in my view, permits a court to exercise its discretion not to apply the doctrine in bothtribunal-to-court and court-to-court situations when actual injustice can be demonstrated. ii. the reasonable expectations of the parties in relation to the scope and effect of the prior proceeding [46] The scope and effect of the Counterclaim is set out in Judge Abrioux’s Reasons for Judgment.

The City’s expectation the trialof the Counterclaim would be determinative of the issue now subject of this Claim is reasonable. At the conclusion of a seven day trialin B.C. Supreme Court, reasonable parties would expect the issues with respect to the City of Prince George allowing Ms. Geisser tohave Storage Containers on the Property had been determined. The parties would reasonably expect any further litigation with respect tothat issue would have to be in the form of an appeal of Justice Abrioux’s order dismissing Ms.

Geisser’s Counterclaim. iii. the risk of adding to the complexity and length of the estoppel-creating proceeding [47] Justice Abrioux’s decision to dismiss the Counterclaim is final, subject to the outcome of an appeal, if pursued. The risk ofadding to the complexity of the appeal proceedings is greater if the Court were to exercise its discretion not to apply the doctrine of issueestoppel.

In Eimskip, Hoegg J.A. states at Paragraph 32: [32] In Penner, the Supreme Court explains why judicial finality is so important: [28] Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposesparties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature’s intent in setting up the administrative scheme. [48] In the instant case, but for Ms.

Geisser’s pending appeal of Justice Abrioux’s decision in City of Prince George v. Geisser, 2015BCSC 697, the elements of cause of action estoppel and issue estoppel are present. To allow Ms. Geisser to relitgate the issues wouldrisk an inconsistent determination of a matter already decided by a superior court. iv. the availability of an appeal from the finding in the estoppel-creating proceeding [49] Ms. Geisser has the right to appeal Justice Abrioux’s decision in City of Prince George v.

Geisser, 2015 BCSC 697, and mayhave done so. v. whether, in all the circumstances of the case, the application of issue estoppel would work an injustice [50] In this case, Ms. Geisser’s Claim does not disclose the presence of fraud or collusion or some other compelling reason to applythe fairness exception. In City of Prince George v. Geisser, 2015 BCSC 697, Judge Abrioux adjudicated Ms. Geisser’s allegations theCity’s employees acted maliciously and improperly in respect to her dealings with her. He found no merit in those allegations.

Accordingly, there is no evidence to indicate the application of issue estoppel would work an injustice. [51] I am of the view that but for the uncertain status of any appeal of Justice Abrioux’s decision in City of Prince George v. Geisser,2015 BCSC 697, the application of issue estoppel would not work an injustice to Ms. Geisser. ABUSE OF PROCESS

[52] Abuse of process is another principle upon which the Court can rely to terminate litigation in the preliminary stage in order toprevent abusive proceedings which bring the administration of justice into disrepute. It is a flexible doctrine unencumbered with thenarrow and technical requirements of cause of action or issue estoppel. The Supreme Court of Canada set out the law with respect toabuse of process by relitigation in the companion cases of Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63, (“C.U.P.E.”), and Ontario v. O.P.S.E.U., 2003 SCC 64 .

These cases concerned men who were subsequently firedfrom their jobs after having been convicted of sexually assaulting persons under their care. They challenged their dismissal on the basisthat notwithstanding their criminal convictions, they did not commit the assault. [53] In C.U.P.E., Justice Arbour explained the principles underpinning the doctrine of abuse of process by relitigation: 35. Judges have an inherent and residual discretion to prevent an abuse of the court’s process.

This concept of abuse of process wasdescribed at common law as proceedings “unfair to the point that they are contrary to the interest of justice” ... 42 The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata whileoffering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s process. (See DohertyJ.A.’s reasons, at para. 65; see also Demeter (H.C.), supra, at p. 264, and Hunter, supra, at p. 536.) 43 ...In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions ofcourts.

Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe, supra), or whether it prevents acivil party from using the courts for an improper purpose (see Hunter, supra, and Demeter, supra), the focus is less on the interest ofparties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the presentone, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put itscase forward, for example.

When that is understood, the parameters of the doctrine become easier to define, and the exercise ofdiscretion is better anchored in principle. 44 The adjudicative process, and the importance of preserving its integrity, were well described by Doherty J.A. He said, at para.74: The adjudicative process in its various manifestations strives to do justice. By the adjudicative process, I mean the various courts andtribunals to which individuals must resort to settle legal disputes.

Where the same issues arise in various forums, the quality of justicedelivered by the adjudicative process is measured not by reference to the isolated result in each forum, but by the end result produced bythe various processes that address the issue. By justice, I refer to procedural fairness, the achieving of the correct result in individualcases and the broader perception that the process as a whole achieves results which are consistent, fair and accurate. [54] In these proceedings, Ms. Geisser is attempting to relitigate one of her substantive claims which Justice Abrioux has alreadydetermined.

The specific requirements of cause of action and issue estoppel may be wanting because Ms. Geisser’s appeal of JusticeAbrioux’s decision in City of Prince George v. Geisser, 2015 BCSC 697, may not yet have been pursued, determined or abandoned. [55] Before exercising its discretion to dismiss a proceeding as an abuse of process, the court must consider the presence or absenceof those factors the Supreme Court of Canada enumerated in C.U.P.E. at Paragraphs 52 and 53, namely:

a) Is the first proceeding is tainted by fraud or dishonesty?

b) Is there fresh, new evidence, previously unavailable, conclusively impeaches the original results? or,

c) When fairness dictates that the original result should not be binding in the new context. [56] The prejudice to the City of Prince George is not the focus neither is the inherent unfairness of relitigating a matter which hasalready been adjudicated. Still, if any of the fairness factors set out in C.U.P.E. exist in the earlier proceedings before Justice Abrioux,Ms. Geisser could address them in her appeal of that decision. For example, if Ms.

Geisser has evidence of a fraud having beencommitted on the Court during the trial of her Counterclaim, she can raise that in her appeal of Justice Abrioux’s decision. [57] Appellants are allowed to apply to admit fresh evidence on appeal. The Supreme Court of Canada recently affirmed in R. v.Lacasse, 2015 SCC 64 , at para.115 , the test set out in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759.for the admission of fresh evidence on appeal:

a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases;

b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

c) the evidence must be credible in the sense that it is reasonably capable of belief; and

d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.

[58] This test is applicable to civil as well as criminal cases: Public School Boards' Assn. of Alberta v. Alberta (Attorney General),[2000] 1 SCR 44, 2000 SCC 2 . [59] Ms. Geisser’s Claim is a repetitive use of the judicial system. In light of her ability to pursue an appeal of Justice Abrioux’sdecision in City of Prince George v. Geisser, 2015 BCSC 697 , it would not be unfair to strike her current Claim as an abuse of processby relitigation. It is clear and obvious that to do otherwise would bring the administration of justice into disrepute.

AUTHORITIES [60] A Provincial Court judge has jurisdiction to dismiss a claim at a settlement conference which is vexatious or an abuse of processor res judicata: Ken Greene Trucking Ltd. v. Greene, 2012 BCPC 321 ; Bank of Montreal v. Smith, Vancouver C92-11939BCPC. Paragraph 18; Shantz and Gorman v.

Godfroid et al, 2012 BCPC 81 , Paragraphs 66-67; Dial Mechanical Ltd. v.Oakridge Painting and Decorating Ltd., Vancouver Registry, C93-10203 BCPC. [61] In Greene, the respondent argued the claim was attempting to relitigate in Provincial Court essentially the same claim whichhad been dealt with in Supreme Court in the context of a family court proceeding. The only difference was the claimant in the ProvincialCourt proceedings was a corporate identity. The respondent argued the claim was res judicata, frivolous, vexatious and an abuse ofprocess.

Judge Sutton found it was, in part, all of those things and dismissed the claim. In reaching this conclusion, Judge Sutton cited(at Paragraph 28) the following definition of vexatious provided by the Ontario High Court of Justice in Lang Micheber et al. v. Fabien et al 37 D.L.R. (4th.) 685: From these decisions the following principles may be extracted: (

a) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdictionconstitutes a vexatious proceeding; (

b) Where it is obvious that an action cannot succeed, or, if the action would lead to no possible good, or if no reasonable person canreasonably expect to obtain relief, the action is vexatious; (

c) Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties bymultifarious proceedings brought for purposes other than the assertion of legitimate rights; (

d) It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequentactions and repeated and supplemented, often with actions brought against lawyers who have acted for or against the litigant in earlierproceedings; (

e) In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whetherthere was originally a good cause of action; (

f) The failure of the person instituting the proceedings to pay the costs of unsuccessful proceeding is one factor to be considered indetermining whether proceedings are vexatious; and (

g) The respondent’s conduct in persistently taking unsuccessful appeals (or I add applications) from judicial decisions can beconsidered vexatious conduct of legal proceedings. [62] Ms. Geisser’s Claim has elements of res judicata, abuse of process, and vexatious litigation overlying a cause of action fallingoutside this court’s jurisdiction. Accordingly, I dismiss her claim pursuant to Rule 7(14)(i). J.T. Doulis, PCJ