Nichols v. Purdy, 2021 NSSC 30

Supreme Court of Nova Scotia Citation: Nichols v.

Purdy, 2021 NSSC 30 Date: 20210201 Docket : Halifax No. 491373 Registry: Halifax Between: Jonathan Nichols, Evelyn Bishop, Carole Black, Johanne Buchanan, Glenn Dodge, Richard Duchesne, Barbara Hines, Scott MacDonald, Careen McNeil, Kenneth Murray, Jennifer Quesnel, Michael and Matthew Retallack, Mary O’Blenis and Christopher Craib, Michael George Clarke and Pamela Susan Clarke, George Clarke and Elizabeth Clarke, Nancy Ellen Roach and Lindsay Ellen Roach and Simon Bradley Roach, Patricia Darlene Scallion and Terry Brian Scallion, Angela Louise Howell, Leo Ryan, Lynn Ryan, Fernand Tardif, Dora Brownell Applicants v.

Bruce Purdy, Frances Purdy, David Lennox and Janet Lennox Respondents Library Heading Judge: The Honourable Justice Scott C. Norton Heard: December 22, 2020 in Halifax, Nova Scotia Written Decision: February 1, 2021 Subject: Res judicata , cause of action estoppel, abuse of process, limitations of actions, privies, deeded right- of-way

Summary: Dispute over deeded easements of rights-of-way for cottage properties, with claims for both injunctive relief and damages for trespass. Respondents moved to dismiss the proceeding on the basis of various arguments including res judicata ; cause of action estoppel; abuse of process; and that the proceeding was barred by the passage of time pursuant to the Limitation of Actions Act . The history of the proceeding was that at a hearing in 2014, after the evidence was closed, the Applicants sought unsuccessfully to argue that their own deeds provided them with a right-of-way.

The Applicants were granted a right-of-way by the Court for other reasons however, this decision was later overturned by the Court of Appeal. The Applicants filed a new application in 2019 for an order that their deeds had provided them with a right-of-way, based on the argument raised in 2014 after the close of evidence. Issues: 1. Was the application barred by reason of the doctrine of res judicata ? 2. Was the application an abuse of process? 3. Was the application barred by the Limitation of Actions Act ?

Result: The Court found that it was plain and obvious that the argument regarding the deeded right-of-way could have and should have been advanced from the outset of the 2014 Application. In the 2019 Application the Applicants were attempting to re-litigate the matter. One group of the Respondents (the Purdys) satisfied the requirements for a finding of cause of action estoppel. The motion of this group was allowed and the Application in Court as against them was dismissed on the ground that it was barred by res judicata and was an abuse of process. These Respondents were entitled to costs.

The motion of the second group of Respondents (the Lennoxes) to strike the Application in Court as against them as an abuse of process was dismissed as these Respondents had not been a party to the 2014 application. The Applicants were entitled to costs as against these Respondents. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: Nichols v.

Purdy , 2021 NSSC 30 Date: 20210201 Docket: Halifax, No. 491373 Registry: Halifax Between: Jonathan Nichols, Evelyn Bishop, Carole Black, Johanne Buchanan, Glenn Dodge, Richard Duchesne, Barbara Hines, Scott MacDonald, Careen McNeil, Kenneth Murray, Jennifer Quesnel, Michael and Matthew Retallack, Mary O’Blenis and Christopher Craib, Michael George Clarke and Pamela Susan Clarke, George Clarke and Elizabeth Clarke, Nancy Ellen Roach and Lindsay Ellen Roach and Simon Bradley Roach, Patricia Darlene Scallion and Terry Brian Scallion, Angela Louise Howell, Leo Ryan, Lynn Ryan, Fernand Tardif, Dora Brownell Applicants v.

Bruce Purdy, Frances Purdy, David Lennox and Janet Lennox Respondents Decision on Respondents’ Motions to Dismiss Judge: The Honourable Justice Scott C. Norton Heard: December 22, 2020, in Halifax, Nova Scotia Decision February 1, 2021 Counsel: Robert Pineo & Grace MacCormick, for the Applicants Harvey Morrison Q.C.& Natasha Puka for the Respondent Purdy Joseph Herschorn, for the Respondent Lennox By the Court: Introduction [ 1 ] The parties are cottage owners.

The underlying proceeding involves a dispute over deeded easements of rights-of-way, with claims for both injunctive relief and damages for trespass. [ 2 ] This decision responds to motions brought by the Respondents to dismiss the proceeding on the basis of various arguments including res judicata ; cause of action estoppel; abuse of process; and that the proceeding is barred by the passage of time pursuant to the Limitation of Actions Act S.N.S. 2014, c. 35 . [ 3 ] The hearing of the motions, by consent of the parties, was held virtually via the Skype videoconferencing software platform.

The parties agreed that there would be no cross-examination of the affiants. [ 4 ] At the outset of the hearing, the affidavit evidence filed by the parties was listed for the record. A coloured plan of the subdivision in issue was entered by the Purdy Respondents without objection and marked as Exhibit 1. I read the affidavit evidence in advance of the hearing. The parties submitted pre-hearing briefs and the Purdy Respondents filed a reply brief, all of which I read prior to the hearing.

Background [ 5 ] The Applicants in the underlying proceeding (the “2019 Applicants”) are all cottage property owners on the Amherst shore of Nova Scotia near Brownell’s Beach. The cottages are grouped in a small cottage subdivision located off Highway 366. The subdivision was created by the gradual allocation of portions of the lands that formed the Brownell family farm once owned by the late Percy and Verda Brownell and later by their son Neil Brownell (now deceased) and his wife Dora Brownell.

[ 6 ] The Respondents are also cottage property owners in this subdivision. Frances and Bruce Purdy (the “Purdy Respondents”) own the property at 125 Brownell Lane and identified by PID 2******1 pursuant to the Land Registration Act, S.N.S. 2001, c. 6 . They took title under a warranty deed from Neil and Dora E. Brownell dated December 5, 1996 and registered on December 6, 1996.

The deed to the Purdys contains the following clause related to a right-of-way (“ROW”): SAVING AND EXCEPTING THEREFROM a right-of-way from the southern margin of the first mentioned right-of-way to the southern margin of lands of Lloyd Trerice. The said right-of-way being 16’ wide running north and south roughly parallel to the shore of the Northumberland Strait as is presently being used by the cottage owners. [ 7 ] The Respondents David and Janet Lennox (the “Lennox Respondents”) own land that spans civic addresses 93 and 103 Brownell Lane and identified by PID 2******5.

They obtained title by warranty deed dated October 30, 1992, and registered on November 1, 1992. [ 8 ] The subdivision lands are bounded by Brownell Lane on the north, Percy Brownell Lane on the south, Highway 366 on the west and the Northumberland Strait on the east. The land is divided into two parts by an alder swamp and a stream leading to the Northumberland Strait. The land bounded by Brownell Lane to the alder swamp is the higher

section of this area and was known locally as the “Hill”. The lower section, bounded by the alder swamp to Percy Brownell Lane was known locally as the “Flats”. [ 9 ] Between 1998 and 2005 the Purdy Respondents gradually filled in the front portion of the swamp; covered over the stream that flowed there using a manufactured culvert; and, filled in a large hole on the bank of the Purdy Property, all at significant expense. Until this area was filled in, the ROW would have been very difficult to pass through as it was located in a swampy area. Aside from Mr.

Brownell on his tractor, the Purdy Respondents did not see any other vehicular traffic and only once in a while saw people use the tractor cut to make their way across the swampy area. [ 10 ] Brownell Lane does not provide access to the ocean. For years the Lennoxes permitted their neighbours to walk across a small path on their property to access the beach. [ 11 ] In or about 2008 a dispute arose between some cottage owners and the Purdys.

Certain cottage owners wanted to be able to walk and drive across the Purdys’ property to reach the beach and began to assert a claim for a ROW to cross the Purdy property by foot and vehicle. [ 12 ] In July 2008 the Applicant Fernand Tardif served the Purdys with a petition claiming the ROW over the Purdy property was a 911 access route for emergency responders. [ 13 ] In August 2011 Mr. Tardif served the Purdys with a second petition claiming a right-of-way over a

section of the Purdy property for “travel, beach access and boat launching, and …911 Access”. Mr. Tardif approached other cottage owners to sign the petition which stated in part: The following Cottage Owners wish to advise you both once again that any attempt to restrict our on going (sic) use or attempt to close this

section will be challenged by all of us both legally and whatever other means are available to use, as we believe we have every legal right to use this Lane. [ 14 ] The Purdys denied any ROW existed.

There followed years of acrimony among several cottage owners and the Purdys, including the Purdys’ attempt to restrict access over their property and several other cottage owners removing the blockade and building a road across the Purdys’ property while they were away. [ 15 ] On August 22, 2014, various cottage owners filed a Notice of Application in Court against the Purdys seeking injunctive relief in recognition of the right-of-way (the “2014 Application”). This Application claimed the right-of-way in favour of all cottage properties within the said Brownell subdivision.

The 2014 Application claimed the right of way was a public street; was a public road; was established by lost modern grant; and was established by prescriptive rights. [ 16 ] Of the 2019 Applicants, of which there are 29, twelve were party to the 2014 Application: (

a) Evelyn Bishop (

b) Carole Black (

c) Johanne Buchannan (

d) Jennifer Quesnel (

e) Lynn Ryan (

f) Glenn Dodge (

g) Richard Duchesne (

h) Barbara Hines (

i) Scott MacDonald (

j) Careen McNeil

(

k) Ken Murray (

l) Fernand Tardif (the “2014 Applicants”). [ 17 ] The following additional applicants to the 2014 Application withdrew from the proceeding in 2015: (

a) Lloyd Trerice; (

b) Ruth Craib (mother of 2019 Applicants Mary O’Blenis and Christopher Craib) (

c) Elizabeth Retallack (mother of 2019 Applicants Michael and Matthew Retallack) [ 18 ] When they learned of the 2014 Application, the Lennoxes retained counsel who wrote to counsel for the 2014 Applicants on October 16, 2014, advising that the Lennoxes denied any right-of-way could be created by the application since the Lennoxes had not been named as parties.

The Lennoxes sent another letter to counsel for the 2014 Applicants on October 30, 2014, confirming that the applicants had decided not to add the Lennoxes as parties and repeating that they did not accept any right-of-way to their property. [ 19 ] By letter dated May 8, 2015 to Justice MacAdam (who was scheduled to hear the 2014 Application), counsel for the Purdys raised the fact that the Lennoxes denied the existence of the right-of-way; had not been made parties to the proceeding; and, that since the right-of-way claimed crossed over the Lennoxes’ property as well, the application must fail.

The Purdys repeated this issue in their Amended Notice of Contest filed June 3, 2015. [ 20 ] The 2014 Applicants then sought to amend their application to name the Lennoxes, claiming they were unaware of the October 2014 correspondence to their former counsel who, in turn, denied the allegation that he had not told them.

Ultimately the Court denied the request to join the Lennoxes. [ 21 ] In their pre-hearing brief, the 2014 Applicants confirmed the Original Application was being brought for themselves and “on the behalf of all the subdivision lot owners and/or residents” and stated the assumption “that to substantiate the claims for right-of-way privileges that not all subdivision residents need to testify at Trial”. [ 22 ] At the hearing of the 2014 Application on August 21 to 28, 2015 Mr. Lennox was a witness for the Purdys and was cross- examined by the Original Applicants.

The Purdys entered into evidence the deeds of the 2014 Applicants and the deed of Jonathan Nichols. The 2014 Applicants cross-examined Mrs. Purdy on her own deed and the deed of Mr. Nichols. [ 23 ] Post-trial briefs and oral submissions by the 2014 Applicants addressed the argument that they had been granted a right-of-way by virtue of their own deeds and admitted that the deed of 2014 Applicant Mrs. Black contained no right-of-way.

The Purdys objected that this argument was raised for the first time after the evidence was heard. [ 24 ] Justice MacAdam’s decision was released December 2, 2015, and is reported at 2015 NSSC 364 . Justice MacAdam held that the 2014 Applicants were entitled to a right-of-way.

In his decision he commented on the post-hearing deed submissions and stated he was not satisfied that the deeds provided such a right-of-way (para. 34), and that it was to some extent unnecessary to deal with the Purdys’ objections, and that in the alternative, he would have acceded to this request of counsel had it been necessary. [ 25 ] The Purdys successfully appealed ( 2017 NSCA 84 ) and the Court of Appeal set aside the right-of-way.

The Court of Appeal addressed the attempt to base the disputed right-of-way on their own deeds and the fact that this was not raised with the hearing judge until after the evidence was concluded. The Court of Appeal held that the trial judge erred by commenting on rights-of-way in the 2014 Applicants’ deeds because the 2014 Applicants had not relied upon this argument until the evidence had been concluded.

The Court could not order an outcome based on claims not pleaded, evidence not led, and rights not argued until too late (paras. 4, 29, 30). [ 26 ] On August 13, 2019, the 2019 Applicants filed an Application in Court (the “2019 Application”). The Purdy Respondents move to have the 2019 Application dismissed on the basis that the proceeding is res judicata ; is barred by the passage of time; and is otherwise an abuse of process. The Lennox Respondents move to dismiss the proceeding on the basis that the proceeding is res judicata, and is subject to cause of action estoppel, and is otherwise an abuse of process.

Issues 1. Is the present application barred by reason of the doctrine of res judicata? 2. Is the present application an abuse of process? 3. Is the present application barred by the Limitation of Actions Act ? Res Judicata [ 27 ] The Purdy Respondents argue that the 2019 Applicants should have asserted their claim to a right-of-way based upon the language of their own deeds in the 2014 Application.

Having decided not to do so, the Purdy Respondents say that the law does not allow the 2019 Applicants to have a “second bite at the cherry”. [ 28 ] The Lennoxes agree with the Purdy submissions and say that the decision of the 2014 Applicants not to add the Lennoxes as parties to the 2014 Application is not the Lennoxes’ cross to bear. They say that the 2019 Application should be dismissed as an abuse of process.

[29] The 2019 Applicants argue that the decision of Justice MacAdam and its subsequent appeal determined only the discrete issueof whether there was a right-of-way established by the deed from Brownell to the Purdy Respondents and should not be taken to opineon anything beyond those issues. The Legal Principles [30] The 2019 Applicants submit in their pre-hearing brief that they accept the law cited by the Purdy Respondents in their pre-hearing brief (paras. 48-63).

I have therefore relied extensively on the Purdy brief in summarizing the law. [31] The doctrine of res judicata is generally regarded as having two main branches, namely cause of action estoppel and issueestoppel: Montreal Trust Co. of Canada v.

Hoque, 1997 NSCA 153; Kasperson v Halifax (Regional Municipality), 2012 NSCA 110. [32] The distinction was explained by Dickson J. in Angle v Minister of National Revenue, [1975] S.C.R. 248 at pp. 254: ....The first, “cause of action estoppel”, precludes a person from bringing an action against another when that same cause of action hasbeen determined in earlier proceedings by a Court of competent jurisdiction. ..... The second species of estoppel per rem judicatam isknown as “issue estoppel”, a phrase coined by Higgins, J., of the High Court of Australia in Hoysted et al. v.

Federal Commissioner ofTaxation (1921), (UK JCPC), 29 C.L.R. 537 at pp. 560-1: I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as hasbeen the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue offact has already been decided (I may call it “issue estoppel”). [33] The Respondents on this motion argue cause of action estoppel.

In Kameka v Williams, 2009 NSCA 107, the Court of Appealadopted the following statement of the constituent elements of an estoppel by res judicata at para. 13: [13] Detailed statements can be found of the constituent elements necessary to establish that the doctrine of res judicata isapplicable (see for example George Spencer Bower and Sir Alexander Turner, The Doctrine of Res Judicata, 2nd ed. (London: Butterworths, 1969) at para. 19). These were compressed by the Alberta Court of Appeal in 420093 B.C. Ltd. v. Bank of Montreal, (AB CA), [1995] A.J.

No. 862 where O’Leary J.A. wrote: [18] A prior judicial decision will not raise an estoppel by res judicata, either issue estoppel or cause of action estoppel, unless (

i) it wasa final decision pronounced by a court of competent jurisdiction over the parties and the subject-matter; (ii) the decision was, orinvolved, a determination of the same issue or cause of action as that sought to be controverted or advanced in the present litigation; and(iii) the parties to the prior judicial proceeding or their privies are the same persons as the parties to the present action or their privies. [34] In Kameka, Justice Oland provided the following

summary of the “rule” expressed in the seminal case of Henderson vHenderson and its adoption in recent times: [16] It was once considered settled that the doctrine of res judicata was quite rigid in its application. One of the oft quotedstatements of the applicability of the doctrine is that of Wigram, V.C. in Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313,[1843-60] All E.R.

Rep. 378: 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 oflitigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forwardtheir whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation inrespect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward onlybecause they have, from negligence, inadvertence, or event accident, omitted part of their case.

The plea of res judicata applies, exceptin special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce ajudgment, 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. [17] Cromwell J.A., as he then was, reviewed the apparent inflexibility of the doctrine of res judicata in Hoque v. Montreal TrustCo. of Canada, 1997 NSCA 153 , [1997] N.S.J. 430. Dr.

Hoque and companies controlled by him, granted mortgages andentered into related agreements with Montreal Trust. Hoque defaulted on these contracts and made an assignment in bankruptcy. Montreal Trust then commenced foreclosure actions on the mortgages. The trustee in bankruptcy did not defend and final orders offoreclosure issued. After being discharged from bankruptcy, Dr. Hoque commenced an action against Montreal Trust alleging breach offiduciary duty, contract, improper disclosure of confidential financial information, and having acted in an abusive and oppressivemanner.

Montreal Trust applied for dismissal of the action on the basis that the issues raised in it could have been dealt with in theforeclosure actions. The Chambers judge refused. [18] On appeal, the court held that the Chambers judge erred in law and should have struck all of the Statement of Claim with theexception of claims that were not inconsistent with the orders of foreclosure, namely breach of the duty to keep and maintain confidentialinformation, and that Montreal Trust acted in an abusive and disrespectful manner.

Cromwell J.A. expressed the view that the doctrineres judicata required a more nuanced approach than an automatic bar to all matters that could have been raised in a previous proceeding. He wrote: [64] My review of these authorities shows that while there are some very broad statements that all matters which could have been raisedare barred under the principle of cause of action estoppel, none of the cases actually demonstrates this broad principle. In each case, theissue was whether the party should have raised the point now asserted in the second action.

That turns on a number of considerations,including whether the new allegations are inconsistent with matters actually decided in the earlier case, whether it relates to the same ora distinct cause of action, whether there is an attempt to rely on new facts which could have been discovered with reasonable diligence inthe earlier case, whether the second action is simply an attempt to impose a new legal conception on the same facts or whether thepresent action constitutes an abuse of process.

[Emphasis added] [35] Justice Cromwell’s reference in Hoque to new facts was based on his analysis of the Supreme Court of Canada decision inDoering v Grandview (Town), (SCC), [1976] 2 S.C.R. 621.

After setting out the facts, Cromwell J.A. quoted thefollowing passage of Ritchie J’s judgment: It is obvious here that the question of whether or not the water entered the aquifer and thus saturated the respondent’s soil was notdetermined in the 1969 action because it was not raised and it would therefore not be strictly accurate to classify the present case as oneof issue estoppel, but I am of the view that it is certainly a case within the principle established in Henderson v.

Henderson, supra, andthe Phosphate Sewage Co. case, and it is to be noted that the respondent has not alleged either in his pleadings or his affidavit that hecould not by reasonable diligence, have put himself in a position to advance the theory of soil saturation through the aquifer at the time ofthe first action, nor can it be said that his failure to raise that particular point did not arise “through negligence, inadvertence or evenaccident.” (emphasis added) [36] Cromwell J.A.’s “same or distinct” consideration is also based on his analysis of Grandview as set out at page 21 of Hoque: Some of the cases are concerned with whether the second action alleges a cause of action which is distinct from that asserted in the firstaction.

For example, in Grandview, supra, Ritchie J appears to have accepted the general proposition that the principle of cause of actionestoppel applies only to matters that arise within one cause of action, but holds that the two actions before him did not give rise to causesof action that were separate and distinct. [37] A third consideration addressed in Hoque was whether the second proceeding asserted a new legal conception. If that was thecase, cause of action estoppel applied.

At p. 23 Cromwell J.A. stated: Another group of cases holds that cause of action estoppel applies where the second action alleges a new legal basis for claims arisingout of facts and relationships that have been the subject of the earlier litigation. This is the approach taken by the British Columbia Courtof Appeal in Morgan Power Apparatus Ltd. v.

Flanders Installations Ltd. (1972), (BC CA), 27 D.L.R. (3d) 249 inwhich the Court found that the dismissal on consent of the first action for damages for breach of contract barred the subsequent actionpleaded in breach of fiduciary duty arising out of the same relationship.

Davey, CJBC for the Court said: ...it seems to me that the second action involves nothing more than a claim for the same sum of money and arising out of the samerelationship and for the same services, but based upon a different legal conception of the relationship between the parties.” (at 251) (emphasis added) [38] Lord Sumption in Takhar v Gracefield Developments Limited, [2019] UKSC 13, considered that the “should” in the modifiedformulation of the rule in Henderson “refers to something which the law would expect a reasonable person to do in his own interest andin that of the efficient conduct of litigation” (at para. 63). [39] The courts have clearly stated the fundamental precepts that litigants must not split their case; that litigation by instalments isnot an acceptable practice; and, that upon filing a claim the litigant must bring forward their whole case: Danyluk v AinsworthTechnologies Inc., 2001 SCC 44 , [2001] 2 S.C.R. 460 (at para. 18); Cobb v Holding Lumber Co.

Ltd. (1977), (BC SC), 79 D.L.R. (3d) 332 (B.C.S.C.); Bear v Merck Frosst Canada & Co., 2011 SKCA 152 (at para. 60); Tsaoussis (LitigationGuardian of) v Baetz, (1998) (ON CA), 41 O.R. (3d) 257 (at para. 19). [40] Layered on this substantive matrix is the instruction by the Supreme Court of Canada for trial courts to manage cases beforethem in a more efficient manner so as to provide greater access to justice for all litigants. In Hryniak v. Mauldin, 2014 SCC 7, the Courtstated: 1 Ensuring access to justice is the greatest challenge to the rule of law in Canada today.

Trials have become increasingly expensiveand protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot affordto go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication ofcivil cases, the development of the common law is stunted. 2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordableaccess to the civil justice system.

This shift entails simplifying pre-trial procedures and moving the emphasis away from theconventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure andaccess struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair andjust. [41] Courts have not been reluctant to dismiss as res judicata a proceeding wherein a litigant could have raised matters in earlierproceedings, where they should have done so but failed to do so, and were unable to provide a reasonable explanation for why they didnot.

In Martin v Goldfarb, 2006 CarswellOnt 4355, Justice Perell stated at paras. 78-79: 78 Returning to the circumstances of the case at bar and the defendants' plea of res judicata, in my opinion, the claims of thecorporations now being advanced could and should have been advanced in the 1990 Action. All that was required for that to occur wasthe joinder of the corporations to the 1990 Action. 79 No explanation was offered as to why the joinder of the corporations could not have occurred in the 1990 Action.

No explanationwas offered as to whether proceedings were or were not or could or could not have been brought in the bankruptcy proceedings to pursuethe corporations' claims for breach of fiduciary duty. No explanation was offered as to why the assignment of the claims of thecorporation that Mr. Martin obtained in 1999 in order for him to have carriage of the action now before the court could not have beenobtained some time between 1990 and 1996, when the 1990 Action was tried.

[42] Similarly, in Williams v Halifax Regional Municipality, 2015 NSSC 228, Justice Duncan (as he then was) considered a motionto amend the claim by deleting all previously pleaded causes of action and replacing them with a claim that the City failed to complywith the statutory requirements for the expropriation of the plaintiffs’ lands in Africville. A previous claim filed in 1996 had beendismissed as part of a 2010 settlement.

The City asserted that the statement of claim should not be amended because as a result of theearlier dismissal the matter was res judicata and that the expropriation claim should have been pleaded in the 1996 statement of claim. The Court accepted the City’s argument.

Applying the analysis in Hoque, Justice Duncan concluded: [80] … What I can say, from a look at the pleadings, is that the issue of whether the lands were subject to expropriation wasconsidered and spoken to in the 1996 claim, and that the proposed Sub-class B claimants consented to dismissal of their claims with thatknowledge. [81] I conclude that the proposed cause of actions “should” have been pleaded in the 1996 claim. Application of These Principles Finality [43] The Court of Appeal decision of November 28, 2017, is a final determination by a court of competent jurisdiction.

The Courtof Appeal overturned Justice MacAdam’s decision and set aside his order that the 2014 Applicants had a right-of-way over the lands ofthe Purdy Respondents. There was no appeal of that judgment. It must be regarded as final. Identity of Cause of Action [44] Cause of action estoppel does not apply to a separate and distinct cause of action. However the courts have adopted a restrictive view on what is a separate and distinct cause of action.

In Lange, The Doctrine of Res Judicata in Canada (4th ed., 2015) it isstated, at p. 153: A new argument on the same facts in a second proceeding is barred by cause of action estoppel. Where the cause of action could nothave been made in the first action on any legal theory, cause of action estoppel does not apply to the second action. A litigant cannotestablish a separate and distinct cause of action by advancing a new legal theory in support of a claim based upon essentially the samefacts.

If the facts supporting the legal theory for the cause of action should have been raised before, even in the context of a differentissue or claim, cause of action estoppel will apply. [45] The 2014 Applicants failed to establish a right-of-way over the lands of the Purdy Respondents based on the terms of the deedfrom Brownell to the Purdy Respondents. At the hearing before MacAdam J., after the evidence was closed, they sought unsuccessfullyto argue that their own deeds provided them with a right-of-way.

It is plain and obvious that this was an argument that they could haveand, in my view, should have advanced from the outset of the 2014 Application. In the 2019 Application they are attempting to re-litigate the matter. [46] In Phosphate Sewage Co. v Molleson, (1879), 4 App.

Cas. 801, Lord Cairns said: As I understand the law with regard to res judicata, it is not the case, and it would be intolerable if it were the case, that a party who hasbeen unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there isanother fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but itbeing in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should beallowed to commence a new litigation merely upon the allegation of this additional fact.

My Lords, the only way in which that couldpossibly be admitted would be if the litigant were prepared to say, and I will shew you that this is a fact which entirely changesthe aspect of the case, and I will shew you further that it was not, and could not by reasonable diligence have been, ascertainedby me before. Now I do not stop to consider whether the fact here, if it had come under the description which is represented by thewords res noviter veniens in notitiam, would have been sufficient to have changed the whole aspect of the case. I very much doubt it.

Itappears to me to be nothing more than an additional ingredient which alone would not have been sufficient to give a right to relief whichotherwise the parties were not entitled to. [Emphasis Added] [47] This passage was adopted by the Supreme Court of Nova Scotia in Fenerty v. Halifax (1920), (NS CA), 53N.S.R. 457, where it was said, at p. 463: The doctrine of res judicata is founded on public policy so that there may be an end of litigation, and also to prevent the hardship to theindividual of being twice vexed for the same cause.

The rule which I deduce from the authorities is that a judgment between the sameparties is final and conclusive, not only as to the matters dealt with, but also as to questions which the parties had an opportunity ofraising. It is clear that the plaintiff must go forward in the first suit with his evidence; he will not be permitted in the event of failure toproceed with a second suit on the ground that he has additional evidence.

In order to be at liberty to proceed with a second suit he mustbe prepared to say: I will show you this is a fact which entirely changes the aspect of the case, and I will show you further that it was not,and could not by reasonable diligence have been ascertained by me before. [Emphasis Added] [48] This passage was cited with approval by Ritchie J. in Grandview, supra. There, the plaintiff had sued the town in 1969 sayingthat a dam built by the town caused his lands to be flooded in 1967 and 1968. That action was dismissed in 1973.

Nine months later theplaintiff started another action claiming that the town caused damage to his crops during the period 1969-1972 by maintaining the riverwaters behind the dam at an artificially high level such that the waters entered an aquifer below the plaintiff’s lands and saturated thesoil with water. The Supreme Court held that plaintiff’s second action was barred by the cause of action branch of res judicata. JusticeRitchie stated at p. 635:

…I cannot agree that the causes of action in the two cases here under consideration are separate and distinct. As Dewar C.J.Q.B. points out, all the facts which are alleged to constitute tortious conduct by the town in the present case existed when the prior action went to trial and it was there found that these facts did not support the present respondent’s action for damage to his crops by water.

The only new issue raised in the present case is the contention that the same conduct for which the town was exonerated from blame in respect of damage to crops in 1967 and 1968 is blameworthy in respect of the damage done in 1969, 1970, 1971 and 1972 because, although the water came from the same source, it reached the respondent’s land by a different route.

The aquifer was on the respondent’s land before 1967 and he states in his affidavit that damage to his land and crops complained of in the first action was probably caused by it according to the information which he received from the expert whom he consulted after the trial. Nothing had changed between the bringing of the first action and the second one except that the respondent had received advice from a soil expert who expounded the aquifer theory.

Such an expert could probably have been consulted before the first action, and if he had been then the matter would no doubt have been put in issue at that time, but in my view the circumstances here are to be considered in the light of the principles established in Phosphate Sewage Co. v. Molleson (1879), 4 App. Cas. 801 … [ 49 ] In the circumstances of this case and based on the authorities I am of the firm view that the claims to the right-of-way made by the 2019 Applicants do not and cannot constitute a cause of action separate and distinct from the 2014 Applicants’ claim to be entitled to a right-of-way.

The burden is on the 2019 Applicants to provide, by evidence, a reasonable explanation as to why they failed to include this claim in their 2014 Application. In the absence of such a reasonable explanation, I find that the 2014 Applicants could and should have raised the effect of their own deeds on the claim of right-of-way. [ 50 ] There is no separate and distinct cause of action. The question on the 2014 Application and the 2019 Application is the same: do the applicants have a right-of-way over the lands of the Purdy Respondents?

The manner of proof of that claim may be different but the question remains the same. [ 51 ] The same conclusion is reached by applying Lord Sumpton’s approach to the meaning of “should”: what would the law expect a reasonable person to do in his own interest and in that of the efficient conduct of the litigation? It would expect persons advancing an argument for a right-of-way to put forward all arguments available to them to support their claim.

One would reasonably expect the first argument to be made was that the 2014 Applicants’ own deeds provided them with such right if there was a factual basis upon which to make that argument. [ 52 ] The 2019 Applicants argue that granting the motion would serve to deprive them of a property right because they did not seek to have it confirmed in an earlier application in which the 2014 Applicants were all self-represented. [ 53 ] The 2014 Applicants were not always self-represented. When the 2014 Application was filed, they were represented by counsel.

At that time they knew what language their own deeds contained. The affidavit of Lindsey Odell, filed January 31, 2020, shows that counsel acted for the 2014 Applicants for some time following the filing of the Notice of Application. At the time they decided to rely on the Brownell-Purdy deed and not their own deeds they were legally represented. In any event, there is no evidence suggesting they were forced to proceed without the “own deeds” argument. [ 54 ] The 2019 Applicants cannot manufacture injustice from their deliberate decision to become self-represented.

There is no injustice arising from the Court requiring the Applicants to be responsible for the legal consequences of their own decisions. The law applies in the same way to self-represented and legally represented parties alike: Baradaran v. Tarion Corporation , 2014 ONSC 6870 , at para. 7 ; Re Goldstick Estates, 2019 ABCA 508 , at para. 55 ; Sanzone v. Shecter , 2016 ONCA 566 , at para. 22 . The Same Parties or their Privies [ 55 ] Cause of action estoppel applies where the parties to the second proceeding are the same as the parties to the first proceeding.

Cause of Action estoppel applies to the twelve 2019 Applicants who were named parties in the 2014 Application: Evelyn Bishop; Carole Black; Johanne Buchanan; Glenn Hodge; Richard Duschesne; Barbara Hines; Scott MacDonald; Careen McNeil; Kenneth Murray; Jennifer Quesnel; Lynn Ryan; and, Fernand Tardif. [ 56 ] Cause of action estoppel also precludes privies of a litigant from asserting a claim that litigant asserted or had the opportunity to assert in earlier proceedings. As the Court stated in Martin v. Goldfarb, supra, at para. 59: The rule of res judicata applies to parties and their privies.

The idea behind privity is that a participant in the second proceeding should be bound by the determination in a previous proceeding because of his or her relationship, called privity, with the party in that prior proceeding. Conversely, a third party cannot benefit or be burdened by an estoppel. For the third party, the past proceedings are res inter alios acta (“a thing done between others”). Privity, which is not a precise concept, can be established by blood (heirs and successors) , title (for example, landlord and tenant), or community of interest.

More generally, privity is established if there is a sufficient degree of identification between persons such that it would be just to hold that the decision to which one is a party should be binding in proceedings to which the other is a party. [Emphasis Added] [ 57 ] In Bank of Montreal v Mitchell, 1997 CarswellOnt 589 , Farley J. described the law as follows, at para. 46: For privity of interest to exist there must be a sufficient degree of connection or identification between the two parties for it to be just and common sense to hold that a court decision involving the party litigant that it should be binding in a subsequent proceeding upon the non-litigant party in the original proceeding, as discussed above, where that non-litigant party has sufficient interest in those original proceedings to intervene but instead chooses to stand by and have the battle in which he has a practical and legal concern fought by someone else, it is appropriate to have the non litigant abide by that previous decision ... [ 58 ] In Martinez de Morales v.

Lafontaine-Rish Medical Group Ltd. , 2009 CarswellOnt 3579 , Thorburn J. stated at para. 25:

Where a privy of another party has knowledge of prior proceedings, a clear interest in the proceedings, and the ability to intervene as aparticipant to protect its interest , but chooses to stand by, the non-party will be estopped by its conduct from proceeding to a trial in asubsequent proceeding on the same issue or issues that have already been determined. [59] The Nova Scotia Court of Appeal cited with approval the following discussion of “privies” in 2301072 Nova Scotia Ltd. v.Lienaux, 2005 NSCA 97, at para. 39: [39] More specific to the Canadian approach to the issue of who is a privy to a party is the discussion in the Lange text, supra, atpage 71: For the purpose of issue estoppel, a privy of a party has been variously defined.

Before a person can be a privy of a party, there must becommunity or privity of interest between them, or a unity of interest between them. They cannot be different in substance. Privity can beone of blood, or title, or interest. A person who is privy in interest to a party in an action and has notice of that action is equally bound bythe findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatoryinterest in its outcome.

To determine whether a person has a participatory interest in the outcome of the proceeding, is to determinewhether the outcome could affect the liability of that person. A non-party in an earlier proceeding is a privy on the basis of beinginvolved in the first proceeding by being present and by giving evidence. The term “parties” includes those who are named in theproceeding and those who have an opportunity to attend the proceeding.

When there is a finding that a privy of a party is estopped by issue estoppel, the doctrine of estoppel by conduct or representation has, onoccasion, also been applied to that person.

Factors which have been considered in applying estoppel by conduct or representation aresimilar to factors which have been considered to establish a privy of a party, namely, having knowledge of the previous proceeding, aclear interest in the proceeding, the ability to intervene as a participant but choosing to stand-by and watch, active participation in theprevious proceedings by giving evidence, and being part of the litigation team. . . . The courts of Canada have made many findings of where a non-party is a privy of a party, and where a non-party is not a privy of a partyfor the purpose of issue estoppel.

The following list comprises situations where a non-party is a privy of the party: • a director and officer of a company and the company (Ontario v. National Hard Chrome Plating Co. (1995), 60 A.C.W.S. (3d)289 (Ont. Gen. Div.) at 11.) . . . • the individuals who own or control a company and the company (420093 B.C. Ltd. v. Bank of Montreal (1995), (AB CA), 34 Alta. L.R. (3d) 269 (C.A.) at 277-79; Stelmaschuk v. Dean, (NWT SC), [1995] 9 W.W.R. 131(N.W.T.S.C.) at 143; Veroli Investment Ltd. v. Liaukus (1998), 80 A.C.W.S. (3d) 338 (Ont. Gen.

Div.) at 8.) • a lawyer who is a director, officer, and solicitor for a company and the company (Guay v. Dennehy, (MBKB), [1994] 5 W.W.R. 738 (Man. Q.B.) at 747.) • a bank’s solicitor and the bank (Beaulieu v. McLaughlin, (1986), 68 N.B.R. (2d)(C.A.) at 446-47.) . . . • a wife and a husband (Quiamco v. Gaspar (1985), 33 A.C.W.S. (2d) 442 (B.C.C.A.) at 15-16) . . . • an assignee of a mortgage and the mortgagee (Income Trust Co. v. Thatcher (1991), 27 A.C.W.S. (3d) 882 (Ont. Gen.

Div.) at 16.... reversed on appeal, (1994), 48 A.C.W.S. (3d) 1012) on the ground that the previous decision was not final...) ... • a person conducting a defence on behalf of a defendant and the defendant (DeChamplain v. Maryland Casualty Co. (1982)., 35O.R. (2d) 428 aff’d (1982), (ON CA), 40 O.R. (2d) 480 (C.A.) [Emphasis Added] [60] The 2019 Applicants did not address the issue of “privies” in their pre-hearing brief.

They argue that there is simply nomutuality of parties between the Purdy Respondents and the 17 remaining 2019 Applicants who were not 2014 Applicants. [61] Of the 17 remaining Applicants, five of them actually owned the land on which the 2014 Applicants were purporting to claim. As such they are privies by holding the same title: (

a) Leo (“Dick”) Ryan also owned the land of Lynn Ryan; (

b) Christopher Craib and Mary O’Blenis were the actual owners of the land upon which the 2014 claim by Ruth Craib was made. RuthCraib withdrew from the 2014 Application in 2015 prior to the hearing. (

c) Michael and Matthew Retalluk were the actual owners of the land upon which the 2014 claim by Elizabeth Retalluk was made. Elizabeth Retalluk withdrew from the 2014 Application in 2015 prior to the hearing. [62] Of the 17 remaining 2019 Applicants, the following had signed the 2011 Petition threatening legal proceedings if the disputed

right-of-way was not recognized: (

a) Leo (“Dick”) Ryan (

b) Richard Duchesne (

c) Jonathan Nichols (

d) Nancy Ellen Roach (

e) Patricia Darlene Scallion (

f) Terry Brian Scallion (

g) Angela Louise Howell [ 63 ] Lindsey Ellen Roach and Simon Bradley Roach were co-owners of the property with Nancy Ellen Roach who signed the 2011 Petition. [ 64 ] Jeffrey Kavanaugh was the principal of the company that sold the land in the subdivision, Banner Developments, to Michael George Clarke and Pamela Susan Clarke. Kavanaugh was aware of the interest that some cottagers had in asserting an entitlement to a right-of-way over the lands of the Purdy Respondents. He averred in his affidavit that he was aware of but did not want to become involved in the 2014 Application.

The Clarkes are privies as successors in title. [ 65 ] Similarly George Clarke and Elizabeth Clarke purchased property from Gloria Dickinson, who signed the July 29, 2011 Petition, but declined to participate in the 2014 Application. Dickinson was a privy and these Clarkes are privies by title to her decision to stand by and watch. [ 66 ] It is notable that Leo “Dick” Ryan was also instrumental in advancing the 2014 Application.

He acted as the 2014 Applicants’ court representative along with Fernand Tardif, both in respect of the written and oral submissions to the court. [ 67 ] Dora Brownell is the widow of Neil Brownell who testified at the 2014 Application. They also purported to grant rights-of- way to two of the 2014 Applicants in 2011. Her affidavit avers that she was aware of but chose not to become involved in the 2014 Application. [ 68 ] In

summary, I find that all 17 remaining 2019 Applicants are privies of the 2014 Applicants. In addition to the direct findings above, I am of the view that there is a community of interest among the 2014 and 2019 Applicants. The 2014 Applicants “reconfirmed” that they were advancing the Application on behalf of all subdivision lot owners. This is strong evidence of a community of interest. They did not file any evidence that this assertion was in any way incorrect or inaccurate. Not a single one of the 17 remaining 2019 Applicants filed an affidavit to deny that they knew of or acceded to the 2014 Application.

Discretion [ 69 ] The 2019 Applicants argue that in any event the Court has a discretion not to dismiss a claim as res judicata, and submit that the Court should exercise that discretion in this case. The argument is based on the comments of Justice Binnie in Danyluk , cited by the Nova Scotia Court of Appeal in Kameka , supra , at paras. 20 and 21 . [ 70 ] It is clear from a reading of Danyluk that the discretion discussed by Binnie J. arises from the court’s obligation to ensure that the application of estoppel (issue estoppel in that case) does not come at the cost of real justice in the particular case.

In Danyluk the circumstances were such that an injustice would result from an unfair process at the first hearing. No such circumstances exist in this case. There was no external force denying the 2014 Applicants the ability to put forward their entire case in 2014. I choose not to exercise such a discretion on the facts of this case.

Conclusion on Res Judicata [ 71 ] I am satisfied that the Purdy Respondents have satisfied the requirements for a finding of cause of action estoppel against all of the 2019 Applicants and as such I would allow the motion to strike the Application in Court against the Purdy Respondents on this basis. [ 72 ] As to the Lennox Respondents, I am not able to make the same finding. The Lennoxes were not parties to the 2014 Application, despite their best efforts to bring this glaring omission to the attention of the 2014 Applicants and the court.

They did not move to intervene in the 2014 Application. [ 73 ] There was no decision determining anything about a right-of-way over the Lennoxes’ land. The decision of MacAdam J. and the Order following make it abundantly clear that it had no application to any property owner other than the Purdy Respondents.

The Order provides, in part, at para. 1(d): The Applicants and their invitees shall be entitled to use the Right-of-Way as a means of ingress and egress across the Respondent’s Property to the southern boundary of the lands now owned by David Lennox (PID #25112855), in order to access the roads running North on the Hill side of the old Brownell farm to Highway #366, and to access the beach to the extent that this access is on the Purdys’ property.

This term should not be construed as ordering, granting or adjudicating upon the existence of any Right-of-Way that may or may not exist on lands other than the Respondent’s property [ 74 ] There is no authority that the Lennoxes have directed me to or that I have been able to find for the proposition that a current defendant or respondent, unnamed in the earlier proceeding, can claim privity for the purposes of advancing an argument for cause of action estoppel. The authorities speak of an estoppel order made against a party or its privy, but not on behalf of a party or its privy.

Even if that were established, on the facts I am not satisfied that the Lennoxes are the privy of the Purdys. Accordingly I am unable tofind that the Lennox Respondents have satisfied the elements required to prove cause of action estoppel. Abuse of Process [75] Civil Procedure Rule 88.02(1) permits a Court to dismiss a proceeding if it is found to be an abuse of the Court’s processes: Remedies for abuse 88.02

(1) A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse,including any of the following: (

a) an order for dismissal or judgment; (

b) a permanent stay of a proceeding, or of the prosecution of a claim in a proceeding; (

c) a conditional stay of a proceeding, or of the prosecution of a claim in a proceeding; (

d) an order to indemnify each other party for losses resulting from the abuse; (

e) an order striking or amending a pleading; (

f) an order expunging an affidavit or other court document or requiring it to be sealed; (

g) an injunction preventing a party from taking a step in a proceeding, such as making a motion for a stated kind of order, withoutpermission of a judge; (

h) any other injunction that tends to prevent further abuse. [76] Relitigation outside the strict requirements of res judicata has been held to be an abuse of process. In Toronto (City) v. CUPE,Local 79, 2003 SCC 63, the majority of the Supreme Court of Canada stated: 37 In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuseof its procedure, in a way that would . . . bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), (ON CA), 51 O.R. (3d) 481 (Ont.

C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC63 (S.C.C.))). Goudge J.A. expanded on that concept in the following terms, at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is aflexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

See House of Spring Gardens Ltd. v.Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attemptto relitigate a claim which the court has already determined. [Emphasis added.] As Goudge J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation incircumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but whereallowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity ofthe administration of justice. (See, for example, F. (K.) v.

White (2001), (ON CA), 53 O.R. (3d) 391 (Ont. C.A.),Bomac Construction Ltd. v. Stevenson, (SK CA), [1986] 5 W.W.R. 21 (Sask. C.A.), and Bjarnarson v. Manitoba(1987), (MB KB), 38 D.L.R. (4th) 32 (Man. Q.B.), affirmed (1987), (MB CA), 21 C.P.C. (2d) 302at 312 (Man. C.A.)).

This has resulted in some criticism, on the ground that the doctrine of abuse of process by relitigation is, in effect,non-mutual issue estoppel by another name without the important qualifications recognized by the American courts as part and parcel ofthe general doctrine of non-mutual issue estoppel (Watson, supra, at pp. 624-625). 38 It is true that the doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowingmuch of its rationales and some of its constraints.

It is said to be more of an adjunct doctrine, defined in reaction to the settled rules ofissue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse ofprocess by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-348): 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. [77] The majority, per Arbour J., concluded: 51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect.

First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly anadditional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in thefirst on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, therebydiminishing its authority, its credibility and its aim of finality.

52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that, from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system , for example: (1) when the first proceeding is tainted by fraud or dishonesty, (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results, or (3) when fairness dictates that the original result should not be binding in the new context.

This was stated unequivocally by this Court in Danyluk , supra, at para. 80 . 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness.

If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail.

An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision ( Danyluk , supra, at para. 51 ; F. (K.) , supra, at para. 55 ). [ 78 ] Having considered these principles, it is plain to me that the Purdy Respondents are entitled to a finding that the 2019 Application is an abuse of process and ought to be struck on this basis as well as res judicata .

I note in particular that a finding of abuse of process does not require the privity finding necessary for cause of action estoppel. To borrow the language of Grange J.A. in Canam, supra , to permit the 2019 Application to continue would be manifestly unfair to the Purdy Respondents and would bring the administration of justice into disrepute.

The 2019 Applicants have not satisfied me by evidence or argument that relitigation will enhance, rather than impeach, the integrity of the judicial system. [ 79 ] As to the Lennox Respondents, they argue that they twice advised the Applicants in 2014 that they did not accept any purported right-of-way over their land and the 2014 Applicants decided at that time not to add the Lennoxes as parties. Is that a sufficient basis to find the 2019 Application, as against the Lennoxes, an abuse of process?

I conclude it is not. [ 80 ] It cannot be said that the 2019 Application, as against the Lennoxes, is a “relitigation” of the 2014 Application. The Lennoxes were not a party to that Application. They were not put in peril of an adverse finding against them. The evidence was not focused on the claim of a right-of-way over their land.

The judge hearing the 2014 Application made it clear in his decision and order following that he was not making any finding in connection with the Lennoxes’ land. [ 81 ] In these circumstances I am unable to conclude that permitting the 2019 Application to proceed as against the Lennoxes would bring the administration of justice into disrepute. Accordingly I must dismiss the motion of the Lennoxes to strike the Application in Court as against them as an abuse of process. Limitation of Actions [ 82 ] The Purdys purchased their property in 1996. The dispute over the existence of a right of way began in 2008.

The 2014 Application was filed in 2014. It is apparent that the Applicants’ claims were discovered before September 1, 2015, the effective date of the Limitation of Actions Act . As such, the Act requires that a claim discovered before the effective date must be brought either two years from the effective date (September 1, 2017) or the day on which the six year limitation period under the former legislation expired, whichever is earlier .

Consequently the Respondents argue that the claims of the Applicants in nuisance and trespass brought in the 2019 Application are barred as they were not brought by September 1, 2017. [ 83 ] It may be that claims in nuisance and trespass can be regarded as continued torts with a new cause of action accruing each day the tort continues.

That is not conceded by the Respondents. [ 84 ] Having decided to dismiss the Application in Court as against the Purdy Respondents, and as this issue was not raised by the Lennoxes, the Court considers that the limitation arguments are best left to the judge hearing the merits of the Application with a full evidentiary record on which to make findings related to limitation. Conclusion [ 85 ] The motion of the Purdy Respondents is allowed and the Application in Court as against them is dismissed on the ground that it is barred by res judicata and an abuse of process.

The Purdy Respondents will be entitled to costs. [ 86 ] The motion of the Lennox Respondents is dismissed. The Applicants will be entitled to costs. [ 87 ] If the parties are unable to agree on costs, I will accept written submissions of the parties. The parties who have been awarded costs shall file their written submissions within one month of the date of this decision with response submissions to be filed within two weeks and reply submissions to be filed within 2 weeks of the response submissions. [ 88 ] Order accordingly. Norton, J.