Bridawn Holdings Inc. AppElLant And: THE Town Council of the Town of Wabana Respondent, 2019 NLSC 106

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : BriDawn Holdings Inc. v. Wabana (Town) , 2019 NLSC 106 Date : May 21, 2019 Docket : 201401G0983 Between: Bridawn Holdings Inc. AppElLant And: THE Town Council of the Town of Wabana Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 1, 2018 Appellant’s Supplemental Authorities filed May 8, 2018 Respondent’s Supplemental Memorandum of Fact and Law filed May 15, 2018

Summary: The Appellant was granted leave to amend a Notice of Appeal to allege errors in failing to apply the doctrines of cause of action estoppel, abuse of process and collateral attack. However, in the circumstances, costs of the application were awarded to the Respondent. Appearances:

Jeremy D. Loeb Appearing on behalf of the Appellant Justin F. Hewitt Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Wabana (Town) v. Bridawn Holdings Inc., 2014 NLPC 0112-C-00620; Wabana (Town Council) v. BriDawnHoldings Inc. (Classic Mouldings Inc.), 2012 NLPC 0111-C-00047; Petten v. E.Y.E. Marine Consultants (1994),(NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (T.D.)); Butler v. Kloster Cruise Ltd. (1992), (NLSC), 98 Nfld. & P.E.I.R. 138, 33 A.C.W.S. (3d) 695 (Nfld. S.C. (T.D.)); R. v.

Perrott (1998), (NL SC), 162 Nfld. & land(Minister of Natural Resources), 2000 NFCA 49; Popular Shoe Store Ltd. v. Simoni (1998) (NL CA), 78 A.C.W.S.(3d) 833, 163 Nfld. & P.E.I.R. 100 (Nfld. C.A.); Moore v. Apollo Health & Beauty Care, 2017 ONCA 383; Harvey v. MemorialUniversity of Newfoundland, 2013 NLTD(G) 51; Guardian Insurance Co. of Canada v. Roman Catholic Episcopal Corp. of St. John’s,2013 NLCA 62; Dhillon v. Dhillon, 2006 BCCA 524; Cooper v. Molsons Bank, 1896 22 (SCC), [1896] 26 S.C.R. 611; Edevainv. Cohen, (43 Ch. D. 187); Angle v.

Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248; Cliffs Over Maple BayInvestments Ltd., Re, 2011 BCCA 180; Erschbamer v. Wallster, 2013 BCCA 76; Henderson v. Henderson (1843), 3 Hare 100, 67 E.R.313 (Eng. V.-C.); Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63; R. v. Wilson, (SCC), [1983] 2 S.C.R. 594 STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: The Doctrine of Res Judicata in Canada, 4th ed., by Donald J.

Lange REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Appellant, BriDawn Holdings Inc. (“BriDawn”), seeks leave to amend a Notice of Appeal. The decision under appeal isthat of a judge of the Small Claims Division of the Provincial Court of Newfoundland and Labrador (“Small Claims Court”) filed onFebruary 20, 2014.

The trial judge ordered that BriDawn pay the sum of $21,000.00 to the Town Council of the Town of Wabana (the“Town”), representing arrears of rent for commercial space leased by BriDawn from the Town. [2] At trial, BriDawn was represented by its sole director, as is permitted in Small Claims Court. In accordance with the Rules ofthe Supreme Court 1986, S.N.L. 1986, c. 42, Sch.

D, it retained counsel to represent it on appeal to this Court. [3] Several months after the Notice of Appeal was filed, counsel for BriDawn filed a factum that included pleadings filed withthe Provincial Court, documents relating to the dispute, the written decision of the trial judge and an unofficial transcript. [4] In the course of preparing for the hearing of the appeal, it became apparent that the trial record filed with this Court did notinclude all exhibits that had been entered at trial. Further, it did not include a prior decision of another judge of the Small Claims Court.

That decision had been before the trial judge and referred to at trial. It involved the same parties and the same claim for arrears of rent. [5] In response to a request from the Court, counsel for BriDawn provided a copy of this prior decision but was unable to providea copy of all exhibits. Counsel for BriDawn also then filed a supplemental brief raising issues not dealt with in the original Notice ofAppeal. [6] When the matter was called for the hearing of the appeal, counsel for BriDawn advised he would be seeking leave to amendthe Notice of Appeal.

Having received and reviewed this prior decision of another judge of the Small Claims Court (the “First TrialJudge”), he wished to argue that the judge who heard the matter now under appeal (the “Second Trial Judge”) erred in failing to considerthe principle of res judicata. Counsel for the Town objected to this request for leave to amend. [7] As a result, the hearing of the appeal was postponed to: (

i) allow the Appellant an opportunity to make formal application forleave to amend the Notice of Appeal; and (ii) ensure that the parties and the Court had the full record of the proceeding under appeal,including the filings at Small Claims Court with respect to the matter giving rise to the 2012 decision of the First Trial Judge. Once these

documents were filed, the parties confirmed they wished to have the application for leave to amend heard before the hearing of the appeal on the merits. issue [ 8 ] Should this Court grant leave to BriDawn to amend its Notice of Appeal to include the alleged errors in law identified in its application? These grounds are: 1. The Trial Judge erred in law by failing to consider and apply the doctrine of res judicata ; issue estoppel; and/or, cause of action estoppel to the Plaintiff’s claim.

The Trial Judge erred in law by failing to consider and give reasons related to the evidence introduced at trial related to the prior decision of the Provincial Court having court file number, 2012 NLPC 0111 -C-00047. 2. The Trial Judge erred in law by not finding that the Provincial Court lacked jurisdiction to hear the Plaintiff’s claim in the action, Wabana (Town) v. Bridawn Holdings Inc. , 2014 NLPC 0112 -C-00620. 3. The Trial Judge erred in law by not finding the action, Wabana (Town) v.

Bridawn Holdings Inc. , 2014 NLPC 0112 -C-00620, was an abuse of process and/or a collateral attack on the prior decision, Wabana (Town Council) v. BriDawn Holdings Inc. (Classic Mouldings Inc.) , 2012 NLPC 0111 -C-00047. [ 9 ] It was apparent from BriDawn’s submissions that the issue of lack of jurisdiction is not a separate and distinct ground from those relating to res judicata , abuse of process and/or collateral attack.

As such, it is those latter issues that will be dealt with below. nature and History of Prior Proceedings [ 10 ] The dispute between the parties arises from a lease of premises owned by the Town in a commercial building known as the Wabana Complex. BriDawn had been leasing space at the Wabana Complex but was looking for more space to expand its business of manufacturing pre-painted mouldings. BriDawn and the Town therefore entered into negotiations for a new lease in the summer and early fall of 2009.

At the same time, BriDawn was attempting to obtain funding from both the Federal and Provincial Governments to assist with the expansion. [ 11 ] A new lease dated October 1, 2009 was subsequently executed by BriDawn and the Town. This lease included the old space that had been rented by BriDawn as well as additional space for the anticipated expansion.

At the time the new lease was executed, BriDawn was continuing to negotiate for funding with both levels of government. [ 12 ] The new lease provided that BriDawn would pay to the Town $2,195.00 per month plus applicable taxes for the expanded space, with the first and last month’s rent being payable upon signing of the lease. BriDawn also agreed to: …immediately pay in one lump sum cheque upon occupancy all arrears of rent owing for the period of September 1, 2009 to the date the tenant commences occupancy at the old lease rate of $1,750.00 per month.

The new rate for the extra space will commence on the date the operations commence. [ 13 ] The Town later sold the Wabana Complex to Iron Isle Property Management Ltd. (“Iron Isle”), with the Town assigning to Iron Isle the existing leases, including the lease with BriDawn. The transaction closed on the 24th of September, 2010 and a separate assignment of leases was signed that same day. [ 14 ] The Agreement of Purchase and Sale contained an acknowledgement that BriDawn had agreed with the Town that, as a condition of reoccupation of its leased

section of the Wabana Complex, BriDawn would pay arrears of rent owing to the Town and that the Town had a priority to receipt of rental monies from BriDawn. However, BriDawn was not a party to that agreement and the separate assignment of leases made no reference to BriDawn paying the Town for arrears of rent. [ 15 ] On September 30, 2010, Iron Isle, as landlord, wrote BriDawn demanding payment of rent. Iron Isle indicated it was prepared to honour BriDawn’s lease but only with the immediate fulfillment of the following terms and conditions: 1. Immediate payment of $22,750.00 to the Town; 2.

Provision of three cheques, each in the amount of $1,750.00 plus HST (the old lease rate), made payable to a third party, Island Manufacturing & Galvanizing Ltd., dated for and negotiable on the following dates: October 1, November 1, and December 1, 2010; and 3. Provision of nine cheques, at the proper lease rate of $2,950.00 plus HST, made payable to Island Manufacturing & Galvanizing Ltd., dated for and negotiable on the first date of each month between January 1 and September 1, 2011 inclusive. [ 16 ] Condition number one was not met as the Town subsequently agreed to arrange for payment itself.

That payment was not made. The Town then filed a Statement of Claim with the Small Claims Court, seeking payment from BriDawn of $22,750.00 for rental arrears to the end of September 2010. [ 17 ] BriDawn met conditions 2 and 3 by providing the required cheques, but it subsequently made a stop payment on the January 1,

2011 cheque, resulting in the termination of the lease. Island Manufacturing & Galvanizing Ltd. (“Island”) then commenced its own claim against BriDawn in Small Claims Court for rentals owing to Iron Isle from and after October 1, 2010. [ 18 ] Both cases were joined by consent of the parties for the purposes of trial, with the facts of one applying to the other. The First Trial Judge heard evidence over three days in 2011 and rendered judgment on January 23, 2012. [ 19 ] The written decision of the First Trial Judge outlined the evidence, the positions of the parties and the issues she was asked to decide.

These issues were described by her as follows: Issues in Relation to Island Manufacturing 1. Does Island Manufacturing have the right to sue BriDawn Holdings Inc. for rentals owing to Iron Isle? 2. If no, does Island Manufacturing have a right to sue for the cheque for January 2011 made payable to them and not honoured by the bank? Issues in Relation to the Town of Wabana 3. Does Wabana have the right to sue for any arrears owing under the lease up to the transfer of BriDawn Holdings Inc.’s [sic] to Iron Isle? 4.

If yes, are there any rents due and owing to Wabana in respect of same? [ 20 ] The First Trial Judge found that Island did not have standing to sue under the lease in place of Iron Isle. However, it did have a right to collect on the January 1, 2011 NSF rent cheque as the cheque was made payable directly to it. [ 21 ] With respect to the issues relating to the Town’s claim, the relevant portions of the findings of the First Trial Judge are as follows: [109] The Agreement of Purchase and Sale does not reserve any right of action in Wabana to recover rent owing.

It deals only with the distribution of funds and how they are to be received. … [111] I find on a plain reading of the Assignment of Leases it is clear that the right to sue is transferred to Iron Isle as and from the date of the assignment. This includes any and all rents or other payments due or accruing due with full power and authority to demand, collect, sue for, distrain for, recover, receive and give receipts for such rents or other payments and to enforce payment thereof in the name of the Assignee. [112] Any rent due by BriDawn Holdings Inc. to Wabana is subsumed in that Assignment.

Therefore, the right to sue resides with Iron Isle. That being so, there is no right in Wabana to sue BriDawn Holdings Inc. for arrears of rent. [113] As I have decided on the issue of right to sue their claim falls. It will not be necessary therefore to determine whether extrinsic evidence should be allowed in this case to determine whether the rent for the term September 2009 to September 30, 2010, is due and owing to Wabana under the lease.

The claim by Wabana against BriDawn Holdings Inc. is hereby dismissed. [114] There shall be no order as to costs. [115] Judgment accordingly. [ 22 ] After its claim was dismissed, the Town commenced the action under appeal claiming thirteen months’ rent at $1,750.00 a month plus all expenses incurred by the Town in pursuing BriDawn for non-payment. In the alternative, it claimed “maintenance costs” of $2,950.00 per month for thirteen months, up to the maximum judgment of $25,000.00 allowable in Small Claims Court. In the further

alternative, it sought the first and last month’s rent in accordance with the terms of the lease. [23] The Statement of Claim specifically referenced the decision of the First Trial Judge as follows: 8. A trial on this issue was held before the Honourable Judge Gloria Harding on May 9, May 17 and September 15, 2012 (sic) at theProvincial Court of Newfoundland and Labrador, Small Claims Division. Judge Harding’s decision was released on January 23, 2012. 9.

Judge Harding did not make a determination on the merits of the case as she determined as a preliminary matter that the Plaintiff didnot have standing to sue for unpaid rent because the property, including the existing leases, had been sold to Iron Isle PropertyManagement Ltd. (“Iron Isle”) on September 24, 2010. 10. The Plaintiff has subsequently obtained an Assignment of Debts and Right of Action from Iron Isle in favour of the Plaintiff, datedJune 5, 2012. 11.

The doctrine of res judicata does not apply in this case because there has not been a final judgment on the merits of the case. [24] BriDawn, through its director, Brian Clarke, filed a Reply with Small Claims Court simply stating: “Disputing the Claim”. Adocument headed “Amended Defence” was subsequently filed, stating the following: 1. No rent is owing. 2. The lease was only done as a requirement to obtain financing and signed under duress. 3. Prior to the lease being signed an agreement was in place with The Town of Wabana stating that if the funding did not comethrough, we did not owe any rent. 4.

We never occupied the rental space, did not have access to the premises. The Town Of Wabana and other parties permitted by TheTown Of Wabana continued to use the space for storage etc. [25] For a period of time before trial, the Plaintiff had legal representation but that counsel was unable to attend on the originallyscheduled trial dates, resulting in the matter being postponed. On the rescheduled trial date, BriDawn was represented by Mr. Clarkewho requested another postponement.

The Second Trial Judge rejected this request and proceeded with the trial. [26] It is evident that the Second Trial Judge had the decision of the First Trial Judge before him at trial as he, counsel and witnessesmade comments with respect to facts contained in that decision. However, Mr. Clarke did not make any objection to the Second TrialJudge determining the issues placed before him on the basis of the First Trial Judge’s decision.

In particular, no submissions were madeby either party on the legal issues BriDawn now wishes to raise. [27] After hearing evidence, the Second Trial Judge proceeded to render a written decision in which he found that the leaseagreement was quite clear and the parties were bound by it. He found the lease provided that BriDawn would pay rent and specified astarting date. As BriDawn breached the agreement by not paying rent, the Second Trial Judge gave judgment to the Town for unpaidrental of $1,750.00 per month times twelve months for a total of $21,000.00.

He made no reference to the prior decision of the First TrialJudge in his decision. [28] Against this background, I must now determine whether leave should be granted to raise the proposed new grounds of appeal. law and analysis Leave to Amend – General Principles [29] Appeals in this Court are governed by Rule 58. While that rule contains no specific provision allowing an appellant leave toamend a Notice of Appeal, Rule 58.02(3) provides that, where an issue respecting practice or procedure arises which is not covered bythe rule or by an applicable statute, any of rules 1 to 4 or the rules in

Part I may be applied as required, with any necessary modifications. [30] Counsel for BriDawn therefore refers to Rule 15.02(1)(

c) from

Part I of the Rules which allows the Court to grant leave to aparty to amend a pleading at any time on such terms as it thinks just. While this application for leave to amend involves an appeal, Rule15.09 specifically provides that, in appeals brought before it, the Court shall have all the powers and duties in reference to amendmentsthat are conferred by it under Rule 15. [31] The leading case from this Court setting out discretionary factors for consideration on an application for leave to amend isPetten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (T.D.)).

At paragraph 88, Green, J., then sitting as a Judge of this Court, noted that the governing purpose of a rule of court allowing foramendment is to ensure that a court determines the real questions in controversy between the parties, recognizing that a court should be

able to correct non-prejudicial errors and allow a proceeding to be “reshaped and refocused” as the case develops. [32] Further, at paragraph 89, the Court noted that, in theory, the discretion to amend may be exercised no matter how negligent orcareless the original omission and no matter how late the application to amend is made. However, the court should be concerned thatthe amendment not do an injustice to the other party which cannot be compensated in costs.

At paragraph 90, Green, J. noted that ajudge should also be concerned with ensuring that the party seeking the amendment is not acting mala fides or attempting to overreachthe other party. [33] In setting out a non-exhaustive list of factors for consideration, Green, J. noted, with approval, the following statement ofRussell, J. in Butler v.

Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 33 A.C.W.S. (3d) 695 (Nfld.S.C. (T.D.)), at page 140: To be allowed, an amendment (1) must not cause injustice to the other side, (2) must raise a triable issue; (3) must not be embarrassing, and (4) must be pleaded with particularity. [34] In the appellate context, relevant considerations are set out in R. v. Perrott (1998), (NL SC), 162 Nfld. &P.E.I.R. 279, 38 W.C.B. (2d) 107 (Nfld. S.C. (T.D.)). In that instance, Adams, J. had occasion to consider an application for leave toamend a Notice of Appeal in a criminal matter.

The Criminal Appeal Rules then in force did not contain any specific rule allowing foran amendment to a Notice of Appeal, but deferred to the civil proceedings rules with any changes that may be appropriate. At that time,civil appeals in this Court were governed by former Rule 57. As with Rule 15, Rule 57 specifically provided the Court with thediscretion to allow an amendment.

Considerations applicable under the former appeal rule would therefore still be relevant to theexercise of discretion under the new rule. [35] In Perrott, Adams, J. was asked to grant leave to allow an amendment to a notice of appeal raising an issue that was not beforethe trial judge. At paragraph 9, Adams, J. noted that R. v. Perka, (SCC), [1984] 2 S.C.R. 232 sets out the principle that,generally speaking, a party cannot raise an entirely new argument on appeal which was not raised at the court below.

This is particularlytrue where it may have been necessary to adduce evidence at trial. [36] At paragraph 14 of Perrott, however, Adams, J. allowed the amendment to add a new argument on appeal because the appealwas “potentially still very early in its legal journey and I must weigh in the balance the chance that the Applicant could be made subjectto a law which may not be valid”. That case involved a Charter challenge. [37] In allowing such a new argument to be advanced, Adams, J. referred to the decision of L’Heureux-Dubé, J. (dissenting as to theoutcome) in R. v.

Brown, (SCC), [1993] 2 S.C.R. 918, at page 136, where she referenced three pre-requisites that mustbe present if a court is allowing a new issue to be raised on appeal: 1. There must be a sufficient evidentiary record to resolve the issue; 2. It must not be an instance in which the accused for tactical reasons failed to raise the issue at trial; 3. The Court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal. [38] In the Newfoundland and Labrador Court of Appeal decision in Kavanagh v.

Newfoundland (Minister of Education), 2000NFCA 2, Green, J.A. also had occasion to consider the power of a court sitting on appeal to allow amendments raising new issues. Thecourt was dealing with an appeal of an interlocutory decision relating to sufficiency of pleadings in a civil matter under Rule 14.24. Onappeal, the appellant sought leave to amend a Notice to Admit Facts that had been relied upon by the respondent to obtain the orderbeing appealed.

At paragraph 13, Green, J.A. noted that an application to amend a pleading in a substantive way on appeal involves, inessence, a request to introduce a new issue on appeal. As such, the same principles would apply. [39] At paragraph 14, Green, J.A. noted that courts take a cautionary approach to amendments raising new issues on appeal basedon the policy of promoting finality of litigation.

In particular, the general principle is that it is not in the public interest, once the partieshave gone through the ordeal of a trial and had their dispute settled by adjudication, to allow them to, after the fact, “patch up weak partsof the case by raising new arguments or issues, thereby in effect relitigating the dispute”. [40] Courts should not only concern themselves with the interest of judicial economy, but should be careful to ensure that publicrespect for the judicial process is not diminished.

The principles of judicial economy, consistency, finality and the integrity of theadministration of justice are all appropriate considerations in deciding whether to allow new issues to be raised on appeal. However, acourt should never lose sight of ensuring that the process is fair to the parties.

In fact, ensuring that the principle of finality of litigationis respected is mostly concerned with making sure that justice is served to each party who has gone through the time and expense of atrial. [41] I will therefore consider the factors referred to in the cases cited above in light of the parties’ submissions and the record beforeboth this Court and Small Claims Court.

Is there a sufficient evidentiary record to resolve the issue? [42] In considering whether a sufficient evidentiary record exists, I note that the issues of res judicata, abuse of process andcollateral attack raise legal arguments that, generally, do not require the introduction of any evidence that was not part of the record ofthe two proceedings. [43] This was specifically noted by Green, J.A., in Quinlan v. Newfoundland (Minister of Natural Resources), 2000 NFCA 49,dealing with an appeal of a decision under Rule 38 that struck out a statement of claim on the basis that the issues raised were resjudicata.

At paragraph 12, he noted that a determination of that issue required an examination of the pleadings, orders, reasons forjudgment and other formal documents relating to the original proceeding, in comparison with those involved in the current proceeding. These are all matters of record, admissible without formal proof.

He also noted that portions of the transcript of evidence taken at theoriginal trial could be admitted on consent. [44] In this instance, the nature of the matters decided by both Trial Judges are outlined in their written decisions, with the decisionof the First Trial Judge having been before the Second Trial Judge and the parties at trial. This Court also has all pleadings. If additionaltranscript evidence is needed, Rule 58.16(1) allows a judge to order the introduction of additional evidence on appeal.

As such, itappears there is a sufficient evidentiary record, or one that could easily be obtained, to deal with these legal issues without prejudice tothe parties. Is this an instance in which the Appellant for tactical reasons failed to raise the issue at trial? [45] The Appellant asks this Court to take into account that the Appellant was, in essence, self-represented at trial and when itresponded to the Statement of Claim.

While the Appellant does not allege that the Second Trial Judge erred in refusing to grant a secondpostponement of the trial, counsel says a self-represented litigant would not have understood or been able to properly address the legaldoctrines of res judicata, abuse of process and collateral attack. [46] The Appellant also asks that I consider that the Small Claims Court rules should be applied liberally, referring to theNewfoundland and Labrador Court of Appeal decision of Popular Shoe Store Ltd. v. Simoni (1998), (NL CA), 78A.C.W.S. (3d) 833, 163 Nfld. & P.E.I.R. 100 (Nfld. C.A.).

At paragraph 24, Green, J.A. noted that in Small Claims Court, whereclaimants are often unrepresented, a liberal approach ought to be taken to the pleadings that are presented so as to ensure that access toproper adjudication of claims is not prevented on a technicality. [47] Further, at paragraph 25, Green, J.A. noted that the Small Claims Court judge has the following duty: 25 A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstancesdescribed in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless ofwhether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action.

Subject toconsiderations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within thesubject-matter jurisdiction of the court, ought to be granted. [48] Such a duty should apply equally to a defence. The Small Claims Court judge must look at the pleadings as a whole as well asthe facts placed before that judge. [49] Counsel for the Appellant also refers to the Ontario Court of Appeal decision in Moore v. Apollo Health & Beauty Care, 2017ONCA 383.

At paragraph 47, the court found that the trial judge did not make sufficient inquiries before concluding that a self-represented litigant had abandoned part of her claim. The Court stated: …Where the evidence of a self-represented party raises a question in the trial judge's mind about the specific relief the party is seeking, atrial judge must make the appropriate inquiries of the party to clarify the matter. Those inquiries must be made in a clear, unambiguous,and comprehensive way so that several results occur: (

i) the trial judge is left in no doubt about the party's position; (ii) the self-represented person clearly understands the legal implications of the critical choice she faces about whether to pursue or abandon a claim;and (iii) the self-represented person clearly understands from the trial judge which of her claims he will adjudicate. [50] In this case, the Town’s Statement of Claim actually recognized res judicata as a potential issue. Further, BriDawn’s Defencegenerally disputed the claim.

Counsel for BriDawn therefore submits that res judicata was actually placed before the Second TrialJudge, with abuse of process and the rule against collateral attack being related doctrines. Alternatively, a review of the pleadings andfirst decision should have caused the Second Trial Judge to address the issues with the parties to confirm they understood not only whathe would adjudicate upon but the legal implications of the positions taken.

Counsel for BriDawn says this is not a case in which theAppellant, for tactical reasons, failed to raise issues at trial. [51] Based upon my review of the record, I find no evidence that the Appellant clearly or unequivocally conceded the non-applicability of the doctrine of res judicata, abuse of process or collateral attack.

In fact, those issues were not raised at any time duringthe trial, despite the reference to res judicata in the Statement of Claim. [52] The reference to the doctrine in the Respondent’s own pleading indicates its counsel was alive to the issue and should havebeen in a position to deal with it at trial. Further, it could be said that the Appellant was in the same position as a self-represented litigantat trial.

It is arguable that its non-lawyer director could not reasonably have been expected to understand the potential legal defences andargue those before the Second Trial Judge. [53] As a result, for the purposes of considering this application for leave to amend, I find there is no evidence to suggest that theAppellant, for tactical reasons, failed to raise an issue at trial that it is now seeking to raise on appeal.

Will an injustice be caused by the granting or refusal of leave to amend? [ 54 ] The third consideration as set out in Perrott is whether a miscarriage of justice will result from the refusal to allow such new issues on appeal. [ 55 ] It should be noted that Perrott was a criminal appeal in which an accused was facing a criminal conviction for breach of a potentially unconstitutional law. In the civil context, in my view, the Court must look to the injustice that may result to all parties from either the granting or the refusal of leave to raise an issue that was not argued at trial.

In particular, I note that in a civil proceeding, the first consideration identified in Butler is for the Court to consider the injustice that would be caused to the non-consenting party. [ 56 ] Counsel for BriDawn submits it would be unjust to deny the Appellant the right to argue these new issues on appeal when the Appellant, as a self-represented litigant, was not given an opportunity to address it at trial and could not reasonably be expected to know that it was an issue that ought to have been addressed.

He says this would, in essence, amount to a real issue between the parties not being litigated based upon a technicality.

Further, BriDawn again notes that the injustice has been magnified by the fact that the issues were actually raised in the Statement of Claim and ought to have been recognized as a live issue for trial. [ 57 ] Counsel for BriDawn also notes there will be no injustice to the Town as the proposed amendments arise out of the same facts and evidence placed before the Second Trial Judge, with counsel and the judge having had the prior decision of the First Trial Judge before them at trial. [ 58 ] Counsel for BriDawn further states that it was only when BriDawn obtained current counsel, who then reviewed the prior decision, that the doctrine of res judicata was identified as a potential ground of appeal.

He therefore submits that this application to amend is based on new information that has come to light subsequent to the issuance of the original Notice of Appeal. [ 59 ] On the other hand, counsel for the Town says it would be unjust to the Town to allow BriDawn to amend its Notice of Appeal when the issue was only raised on the hearing date, more than four years after the Notice of Appeal was filed. This was not new information that has only now come to light.

The Town says that the delay in raising the issue will further prevent it from hearing the appeal and enforcing on its judgment. [ 60 ] I agree with the Town that the issues are not based on new information and should have been referenced by BriDawn in the original Notice of Appeal. While I recognize that counsel who filed the Notice of Appeal and trial record was not the same counsel as now before the Court, former counsel had the benefit of having the trial transcript as early as October 2014.

That transcript revealed the existence of the prior decision of the First Trial Judge. [ 61 ] Further, when it filed the unofficial trial record, the Appellant incorrectly identified the Statement of Claim in the first trial as a pleading in the matter under appeal. If a proper record has been obtained when the appeal was filed, the potential argument with respect to res judicata would have been evident from a review of the Town’s Statement of Claim. [ 62 ] I therefore acknowledge that the Town has suffered prejudice. It will be delayed in proceeding with the appeal because of the late filing of this application.

The Town has also incurred costs of appearances on this application that would not have been necessary if all grounds of appeal had been set out in the original Notice of Appeal. However, there has been no delay in enforcement as the judgment has not been stayed. [ 63 ] Nevertheless, in considering the above prejudice to the Town, as noted by Faour, J. at paragraph 11 of Harvey v. Memorial University of Newfoundland , 2013 NLTD(G) 51, the threshold for refusal to grant an amendment on this basis is low. The Town must be able to point me to a circumstance which cannot be adequately compensated in costs.

None of the circumstances prejudicing the Town are matters that cannot be compensated in costs. [ 64 ] The more significant issues of injustice raised by the Town are whether leave should be refused on the grounds that the proposed amendments offend the rules of pleading, both because they have no merit and they are not sufficiently pleaded. [ 65 ] Non-compliance with the rules of pleading is at the heart of the last three factors from Butler .

While that decision and cases that followed it reference factors applicable to pleadings at the trial level, in particular, those that would be applied on an application under Rule 14.24(1), Rule 58 has a similar striking provision. Rule 58.12(1)(

b) allows this Court to strike out a Notice of Appeal on the basis that it is frivolous, vexatious or without merit. It follows that if a respondent satisfies the Court that a new issue being raised would not have survived an application to strike a pleading at the trial level, it would not have merit on appeal. [ 66 ] In dealing with the issue of whether an amendment has merit, at paragraph 99 of Petten , Green, J. held that the test on amendments to trial pleadings is that it must be “plain and obvious” that the proposed pleading discloses no reasonable claim (or defence) and it is certain to fail.

The test is whether the court is satisfied, not that the proposed issue may not succeed, but that it cannot succeed. [ 67 ] As with an application seeking leave to amend trial pleadings, I am mindful that in deciding whether an issue cannot succeed, I am only to undertake a preliminary review of the grounds of the appeal, the record and the trial Judge’s reasons. A deep dive into the transcript is not required. [ 68 ] If my preliminary review satisfies me that it is plain and obvious that the proposed grounds of appeal cannot succeed, I may dismiss the application for leave to amend.

However, if it is not plain and obvious, the preferred course is to allow the amendment and let the judge hearing the appeal decide on the merits. As such, I will examine each proposed new ground of appeal applying this low threshold test.

Res Judicata [69] The first proposed ground is that the Second Trial Judge erred in failing to consider and apply the doctrine of res judicata. InQuinlan, at paragraphs 6 and 7, Green, J.A. noted that, subject to certain restrictive rules, res judicata is based on the principle that alitigant ought not to be able to retry a cause of action or to claim any relief flowing from that cause of action that has already beenlitigated between the same parties or those with whom they have privity.

Similar to the considerations that apply when determiningwhether to allow new issues to be argued on appeal, the principles underlying this doctrine are the promotion of finality of litigation andthe prevention of a multiplicity or fragmentation of proceedings. [70] In a later decision of the Court of Appeal, Green, C.J., as he then was, identified two different types of res judicata: 1) cause ofaction estoppel; and 2) issue estoppel. (Reference Guardian Insurance Co. of Canada v. Roman Catholic Episcopal Corp. of St. John’s,2013 NLCA 62).

At paragraphs 42 to 44, Green, C.J., summarized these two species of res judicata as follows: 42 It is generally recognized that there are two species of res judicata, or estoppel by record: cause of action estoppel and issueestoppel: Angle v. Minister of National Revenue (1974), (SCC), [1975] 2 S.C.R. 248 (S.C.C.), per Dickson J. at p. 254.For the former category, the cause of action in the prior proceeding must be the same (i.e. not "separate and distinct") from the cause ofaction in the current proceeding: Doering v.

Grandview (Town) (1975), (SCC), [1976] 2 S.C.R. 621 (S.C.C.) per RitchieJ. at p. 65; Furlong v. Avalon Bookkeeping Services Ltd., 2004 NLCA 46, 239 Nfld. & P.E.I.R. 197 (N.L. C.A.) per Roberts J.A. at para.17. If the facts relied on to support the cause of action in the prior proceeding constitute substantially the same facts supporting the causeof action in the current proceeding, the causes of action will be regarded as the same (i.e. not separate and distinct) for the purposes ofcause of action estoppel, even though the actual relief sought in the two proceedings is not the same. See Donald J.

Lange, The Doctrineof Res Judicata in Canada, 3d ed. (Markham, ON: Lexis Nexis, 2010), pp. 147-151 and cases there cited. 43 For issue estoppel, on the other hand, the causes of action need not be the same but an issue or question fundamental to thedisposition of the previous litigation must be at issue again in the current litigation: Angle, per Dickson J. at p. 255; Quinlan at paragraph7; Furlong at paragraph 16. 44 Where cause of action estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromretrying the cause of action or any claim or argument which could have been made in the prior action had the party exercised reasonablediligence.

Where issue estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromchallenging the "material facts and the conclusions of law or of mixed fact and law ... that were necessarily (even if not explicitly)determined in the earlier proceedings": see Danyluk, per Binnie J. at paragraph 24. Requirement to Plead Particulars – Res Judicata [71] With respect to both species of res judicata, the Respondent asserts that the amendment should not be allowed as res judicatawas not pleaded at trial.

The Respondent refers to the text, The Doctrine of Res Judicata in Canada, 4th ed., by Donald J. Lange, atparagraph 14 wherein the author states: The plea of res judicata must set out fully the facts which create the plea, not simply plead the first proceeding and the order. It mustdistinctly plead facts sufficient to show that the question raised in the second proceeding was absolutely adjudicated upon in the firstproceeding. If not pleaded, it may not be raised as a ground on appeal. Res judicata is a rule of evidence which must be pleaded if it isto be raised at trial.

Otherwise, the party omitting to plead, when there is an opportunity to plead, waives the estoppel. [72] In making this statement, the author refers to the decision of the British Columbia Court of Appeal in Dhillon v. Dhillon, 2006BCCA 524, at paragraph 21. However, in that case, it appears the parties were represented by counsel at trial.

Further, the trial judgehimself, during the course of the trial, brought up the issue of res judicata, stating that he was not bound by any prior findings of fact,except to the extent that it was res judicata. [73] In those circumstances, where the issues were not raised in pleadings or on an application, and where there was a specificdiscussion between the trial judge and counsel in which the trial judge himself raised the issue of res judicata, it is not surprising that theBritish Columbia Court of Appeal found that the represented appellant could not now raise res judicata on appeal.

[74] In this case, the Second Trial Judge did not reference the issue. Further, the Town’s Statement of Claim itself identifies theissue of res judicata and the matters that were in issue in the prior proceeding. The Appellant, as defendant, filed a pleading containing ageneral denial of the statements made in the Statement of Claim. [75] However, counsel for the Town says that these references are not sufficient to satisfy the requirements that res judicata bespecifically pleaded. The Town references Cooper v.

Molsons Bank, 1896 22 (SCC), [1896] 26 S.C.R. 611, at paragraph 21,which in turn relies on a decision of the English Court of Appeal in the case of Edevain v. Cohen, (43 Ch. D. 187). That case noted that,under the system of pleading introduced by the Judicature Act, R.S.N.L. 1990, c. J-4, it has been decided that res judicata as a defence,or as a reply to a counterclaim, must be specifically pleaded. [76] However, I was not referred to any current legislation that contains specific requirements with respect to pleading resjudicata.

I also note that this decision is now more than one hundred and twenty years old and I query whether it accurately reflects thecurrent state of the law. [77] In particular, it appears to be in contrast to the approach taken by the Newfoundland Court of Appeal in Popular Shoe StoreLtd., in which the Court noted the liberal approach that ought to be taken to pleadings, particular in Small Claims Court, where theclaimants are often unrepresented. This is to ensure that access to proper adjudication of claims is not prevented on a technicality.

TheCourt noted that even in superior court, the basic rule of pleading is that a party must plead material facts and is not required, as acondition of relief, to be correct in fitting those facts, as a matter of pleading, into a particular legal pigeon hole. At paragraph 25, theCourt of Appeal noted that the Court should take into account the issues of fairness and surprise to the other side. [78] In this instance, the Town was represented by the same counsel on the first and second trial. The Town itself recognized thepotential application of res judicata and dealt with it in the Statement of Claim.

It was well aware of the nature of the issues that hadbeen before the First Trial Judge and those that were now being placed before the Second Trial Judge. As noted above, it can hardly besaid that the Town would have been prejudiced by having to deal with the issue at trial. [79] As such, on this application for leave to amend, I am not prepared to find that it is plain and obvious that a claim of res judicatacannot succeed or has no merit on the basis that the doctrine was not pleaded, or pleaded with sufficient particularity, at trial.

Further,the proposed ground of appeal alleges that the trial judge erred in “failing to consider” the doctrine of res judicata.

At this stage of theappeal proceeding, I cannot state that it is plain and obvious that the doctrine should not have been considered by the trial judge. [80] With respect to particulars of pleading, counsel for the Town also takes issue with respect to how the proposed grounds ofappeal have been presented on this application for leave to amend. [81] In pleading res judicata on appeal, counsel for the Town submits that it is not enough for BriDawn to allege an error in law bymerely identifying the decision.

The proposed grounds of appeal ought to have specified why the doctrine of res judicata precluded theSecond Trial Judge from hearing the matter. [82] In particular, in respect of issue estoppel, the proposed new ground of appeal should have identified the issue determined by theFirst Trial Judge that was fundamental to the prior proceeding and that was then again before the Second Trial Judge.

With respect tocause of action estoppel, the proposed ground of appeal ought to have identified what cause of action was finally determined by the FirstTrial Judge. [83] The need to be scrupulous with respect to presenting particulars of amendments was noted at paragraph 100 of Petten. Green,J. noted that it is not appropriate to allow an amendment which, though not capable of being refused because it has no chance ofsucceeding, is nevertheless otherwise deficient in supplying appropriate particulars.

An amendment must not be presented in a way thatthe other side would be prejudiced in being able to respond properly or would likely lead the other party to apply subsequently forparticulars. [84] Prejudice to the other side was also noted as being at the root of the need for sufficiency in proposed amendments at paragraph11 of Harvey.

Faour, J. noted that if an amendment is deficient in supplying sufficient particulars, it may not provide the other party witha clear allegation from which to formulate a response. [85] In considering the sufficiency of the proposed grounds of appeal, I note that Rule 58.04(2) sets out the minimum requirementsfor a Notice of Appeal filed in this Court. That rule merely states that the Notice of Appeal must set out the grounds of appeal and aportion of the decision under appeal, if only a portion is being appealed.

It is notable that the Newfoundland and Labrador Court ofAppeal recently amended and relaxed its rules for pleading on appeal. Those rules no longer provide that a party must actually set outthe grounds of appeal. The party appealing must only state the subject matter of the appeal by giving a brief

summary of what the appealis about and what the issues are (Rule 8(4)(

b) of the Court of Appeal Rules under the Judicature Act, Newfoundland and LabradorRegulation 38-16). [86] In light of the underlying purpose of sufficient particulars, i.e. the need for the opposing party to respond to the pleading, I amsatisfied that the proposed grounds of appeal meet that purpose and are sufficient for the Respondent to respond to the grounds ofappeal. Both parties to the appeal were party to and participants in both trials at Small Claims Court. Both Small Claims Court judgesgave comprehensive written decisions with their findings and conclusions.

As such, identifying the decision from which res judicataarises provides the Respondent with sufficient particulars from which to respond to the allegation of cause of action estoppel. [87] I therefore find that the Appellant’s application for leave to amend ought not to be denied on any basis relating to the failure toplead particulars. I will therefore now consider whether, assuming the appeal judge determines the Second Trial Judge ought to haveconsidered the issues raised on appeal, it is plain and obvious that an argument based on those grounds has no chance of success.

Issue Estoppel [88] At paragraph 15 of Quinlan, quoting from the Supreme Court of Canada in Angle v. Minister of National Revenue, 1974

168 (SCC) , [1975] 2 S.C.R. 248, the court succinctly summarized the test for issue estoppel as a three-part test: (

i) the same question must have been contested and decided in the earlier proceeding; and that question must have been "fundamental" to the decision arrived at, in the sense that it must have arisen more than "collaterally or incidentally" and is not simply to be inferred by argument from the judgment; (ii) the decision in the earlier proceeding was final; (iii) the parties to the earlier decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies. [ 89 ] Part three of the test from Angle is met.

While the Town sued as assignee in the second proceeding, it merely obtained an assignment back of the right to sue. However, the issue remains as to whether the same question was contested and decided in the earlier proceeding and whether the decision in the earlier proceeding was final. [ 90 ] A review of the decision of the First Trial Judge reveals that, while the question of the requirement for BriDawn to pay rent from September, 2009 to September, 2010 was contested, it was not actually decided in the first trial.

The First Trial Judge dismissed the claim on the basis of the Town’s standing to maintain the cause of action. It was their standing that was “fundamental” to the decision arrived at. [ 91 ] Further, the First Trial Judge did not interpret the Lease provisions as the claim for rent after September 2010 failed on the basis of the lack of standing by Island.

As such, the decision of the First Trial Judge does not meet the first part of the test for issue estoppel, being that the same question must have been contested and decided in the earlier proceeding. [ 92 ] It is therefore plain and obvious that issue estoppel, the first species of res judicata , cannot succeed on appeal and would not have succeeded if it had considered by or argued before the Second Trial Judge. As such, I will not grant leave to amend the Notice of Appeal to raise issue estoppel.

Cause of Action Estoppel [ 93 ] As noted by Green, J.A., at paragraph 6 of Quinlan , cause of action estoppel is concerned with ensuring that parties do not have a chance to retry a cause of action, or to claim any relief flowing therefrom, that has already been litigated between the same parties or their privies.

Further, at paragraph 44 of Guardian , the court noted that this doctrine would also apply where a party is seeking to retry any claim or argument which could have been made in the prior action had the party exercised reasonable diligence. [ 94 ] The fact that cause of action estoppel applies to matters that were both actually argued and that could have been argued was further discussed in the British Columbia Court of Appeal decision in Erschbamer v. Wallster , 2013 BCCA 76 .

At paragraph 15 of that decision, the court referred, with approval, to a prior decision of the British Columbia Court of Appeal in Cliffs Over Maple Bay Investments Ltd., Re , 2011 BCCA 180 , at paragraph 28 , where Newbury, J.A. set out the requirements for cause of action estoppel as follows: 1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of "finality"]; 2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of "mutuality"]; 3.

The cause of action and 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 . [Emphasis added] [ 95 ] At paragraph 14 of Erschbamer , the court also referred with approval to a quotation from the seminal case of Henderson v. Henderson (1843), 3 Hare 100 , 67 E.R. 313 (Eng.

V.-C.) at 319 : In trying this question, I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [ 96 ] The question in this case is whether the decision of the First Trial Judge meets the first and fourth criteria for cause of action estoppel.

[97] With respect to the first criteria, it is clear from the decision of the First Trial Judge that she heard evidence relating to theinterpretation of the terms of tenancy and any occupancy by BriDawn. In particular, she noted that she heard evidence from severalwitnesses relating to the history of the lease negotiations and events occurring subsequent to the signing of the lease. [98] However, a review of the decision indicates that the only issue on which the First Trial Judge made a finding is whether theTown had the right to sue BriDawn for arrears of rent.

It was on that basis that she found the Town’s claim fell. She went on to note thatit was therefore not necessary for her to determine whether extrinsic evidence should be allowed to determine whether the rent for theterm September, 2009 to September 30, 2010, was due and owing to the Town under the lease. [99] The decision does not address the issue of whether the Town could subsequently obtain an assignment of the same cause ofaction.

Presumably, it would have been open to the First Trial Judge to decide the issue of standing as a preliminary issue and give leaveto amend or cure that defect before dismissing the claim. [100] Further, it is arguable that the finality of the decision is evidenced at the end of the decision of the First Trial Judge in which shestated “The claim by Wabana against BriDawn Holdings Inc. is hereby dismissed”. She then proceeded to make no order as to costs andgave judgment accordingly. [101] The Respondent, however, states that the decision of the First Trial Judge was not a final decision on the merits of the claim.

Ittherefore does not satisfy the first requirement of cause of action estoppel. [102] However, the Respondent has provided me with no authority indicating that the decision must be “on the merits” to satisfy thefirst requirement of cause of action estoppel. For example, if a plaintiff obtains a default judgment or a judgment based on a defendant’sfailure to appear at trial, could it not be said that those are final decisions within the meaning of cause of action estoppel? [103] I also note that, on this application for leave to amend, I have very limited information on the proceeding before the First TrialJudge.

I do not know whether or not the trial proceeded on the basis that the First Trial Judge would make a decision on standing andleave a determination on the merits to another action. If that were the case, the Appellant may have a stronger argument on cause ofaction estoppel.

However, if the Town decided to proceed to a full adjudication on the merits and take the risk that their claim may failon the basis of standing, there may be an argument that the decision of the First Trial Judge satisfies the requirement of being a finaldecision within the meaning of cause of action estoppel. [104] At this stage, applying the low threshold test for an application for leave to amend a Notice of Appeal, I cannot state that it isplain and obvious that the ground of appeal related to cause of action estoppel has no merit.

Abuse of Process [105] The first portion of the last proposed new ground of appeal is the Second Trial Judge’s failure to find that the action was anabuse of process. In the Supreme Court of Canada decision in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at paragraph 38, thecourt noted that the abuse of process doctrine has been extended beyond the strict parameters of res judicata.

It is noted to be an adjunctdoctrine from the settled rules of issue estoppel and cause of action estoppel rather than an independent one. [106] The court described the policy grounds supporting abuse of process by relitigation as essentially the same policy groundsunderlying issue estoppel: The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have beencited as policies in the application of abuse of process by relitigation.

Other policy grounds have also been cited, namely, to preserve thecourts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect theprinciple of finality so crucial to the proper administration of justice. [107] At paragraph 42, the court noted that the attraction of the doctrine of abuse of process is that it is unencumbered by the specificrequirements of res judicata but offers the discretion to prevent relitigation. The essence of this doctrine is that it has, as its purpose, thepreservation of the integrity of the court’s process.

However, as noted at paragraph 53 of Toronto (City), there may be circumstanceswhere fairness dictates that the administration of justice would be better served by permitting a second proceeding to go forward than byinsisting that finality prevail. [108] Given the broad nature and policy concerns at play in respect of the doctrine of abuse of process, it is evident that, if it is notplain and obvious that cause of action estoppel does not apply, it is equally not plain and obvious that an argument of abuse of process isbound to fail. [109] As with the argument relating to cause of action estoppel, the issue of whether the Second Trial Judge ought to have dealt withthe potential defence and whether it ought to have precluded the second action are to be left to a hearing on the merits of the appeal.

Counsel can then provide more fulsome legal argument and a consideration of the nature of the two proceedings as a whole. Rule Against Collateral Attack [110] The second portion of the final proposed new ground of appeal relates to the rule against collateral attack. That rule was referred It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not beattacked collaterally-and a collateral attack may be described as an attack made in proceedings other than those whose specific object isthe reversal, variation, or nullification of the order or judgment.

[ 111 ] While neither counsel put forward detailed submissions with respect to the issue of collateral attack, counsel for the Town, in supplemental written submissions, submitted that the order of the First Trial Judge was not brought into question or “attacked” in the proceedings before the Second Trial Judge. This was because her order only related to whether the Town had the right to sue. The Town specifically complied with the findings by obtaining an assignment of the cause of action before issuing its second Statement of Claim.

It is therefore plain and obvious that BriDawn’s claim of collateral attack has no chance of success on appeal. [ 112 ] However, as noted above, a judge hearing the appeal will need to determine whether or not the decision and resulting order of the First Trial Judge was a “final” decision dismissing the claim for rent as opposed to a decision that merely dealt with standing, leaving it open for the Town to bring another action once it had obtained an assignment.

I therefore find that it is not plain and obvious, on the low threshold test to be applied on this application, that an argument based on collateral attack cannot succeed. I will therefore grant leave to the Appellant to amend its Notice to Appeal to allege an error with respect to the issue of collateral attack.

summary and conclusion [ 113 ] In

summary, I conclude as follows: 1. Leave is hereby granted to the Appellant to amend its Notice of Appeal to include the following alleged errors in law:

i) That the Trial Judge erred in law by failing to consider and apply the doctrine of cause of action estoppel to the Plaintiffs’ claim. The Trial Judge erred in law by failing to consider and give reasons related to the evidence introduced at trial related to the prior decision of the Provincial Court, having Court File No. 2012 NLPC 0111 -C-00047. ii) The Trial Judge erred in law by not finding the action, Wabana (Town) v. BriDawn Holdings Inc. , 2014 NLPC 0112 -C-00620 was an abuse of process and/or a collateral attack on the prior decision, Wabana (Town Council) v.

BriDawn Holdings Inc. (Classic Mouldings Inc.) , 2012 NLPC 0111 -C-00047. 2. Leave is denied to the Appellant to amend its Notice of Appeal to allege errors in law in respect of the failure to consider and apply the doctrine of issue estoppel. 3. Leave is denied to the Appellant to amend its Notice of Appeal to allege an error in law in not finding that the Provincial Court lacked jurisdiction to hear the Plaintiffs’ claim in the action. 4.

The Applicant’s delay in identifying the proposed new grounds of appeal and the results in prejudice to the Respondent warrants an award of costs. [ 114 ] In making such a costs award, I have considered that the Appellant did not raise these proposed new grounds of appeal until the day scheduled for the appeal hearing, almost four years after the Second Trial Judge rendered his decision. Further, the Appellant’s errors in putting together the trial record and incorrectly including pleadings that related to the first action led to confusion and further delay.

The Respondent was then put to the unnecessary expense of making court appearances on February 9, March 1 and May 1, 2018. [ 115 ] In light of the foregoing history of the proceedings, while the Applicant was ultimately successful in the application to add most of the proposed new grounds of appeal, I find it appropriate to exercise my discretion to award costs in favour of the Respondent.

I therefore award the Respondent costs of this application, including costs in respect of the appearances on February 9, March 1, and May 1, 2018 on Column 3 of the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 . _____________________________ Rosalie McGrath Justice