r v. Canada Customs and Revenue Agency, 2011 ONSC 3424

CITATION: Trainor v. Canada Customs and Revenue Agency, 2011 ONSC 3424 COURT FILE NO.: 15038/03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) RICHARD N.

TRAINOR ) ) ) Michael Hebert, for the Plaintiff / Movingparty ) Plaintiff / Moving party) ) - and - ) ) ) CANADA CUSTOMS AND REVENUEAGENCY ) ) ) Alex Kaufman, for the Defendant /Responding party ) Defendant / Responding party) ) ) )HEARD: June 2, 2011 ENDORSEMENT KEALEY J. [1] The issue to be determined is whether an order should be given setting aside the Order of Justice Ratushny rendered March 8,2007, dismissing the within action for lack of jurisdiction. Both the Crown and the Plaintiff had sought a similar disposition based onthe decision of the Federal Court of Appeal in the case of Grenier v.

Canada, 2005 FCA 348 , [2005], F.C.J. No. 1778 whichestablished the law to be: 1. The Superior Court of Ontario had no jurisdiction over the facts of the case. 2. That sections of the Federal Courts Act require the Plaintiff, in such a case, to apply for judicial review of the administrativedecision before litigation could go forward.

[2] Res judicata or issue estoppel precludes the re-litigation of a legal or factual issue effectively resolved in a prior proceeding. The doctrine is grounded in the common sense notion that it is necessary to assure some order in our system of justice and therefore,there is a need for finality once a judicial determination has been rendered. The finality principle, while true, exists to advance theinterest of justice and where its application would produce an injustice, there is a discretion to relieve against it. [3] Justice Binnie, in the case of Danyluk v.

Ainsworth Technologies Inc. 2001 SCC 44 , [2001], 2 S.C.R. 460, clarified thelaw in this area and outlined a two step test to achieve a balance between the public interest in finality and the public/private interest tosee justice done on the facts of a particular case which demonstrate a need for special consideration. [4] The first step is to decide whether the conditions for res judicata / issue estoppel are established, namely: 1. The same question has been decided. 2. The judicial decision said to create the estoppel was final. 3.

The parties to the judicial decision are the same as those in the proceeding where the estoppel is raised. In this case, the first step is clearly met but the second, whether the discretion of the court ought to be exercised to avoid the estoppelrequires further scrutiny. Although a number of cases have accorded the benefit of a change in the law, to a litigant, this is not to beconsidered automatic. As I read the Smith case cited by Mr. Hebert, special or exceptional circumstances are needed for this to beachieved.

Because the law is in a constant state of flux to allow prior orders, rulings or decisions to be readily set aside would bring chaosto our system of justice. It is only in rare or unique circumstances that an estoppel will not prevail. [5] Nevertheless, in this case, I find present a number of facts which persuade me to set aside Justice Ratushny’s Order and permitthe Plaintiff’s action to go forward; some of these are as follows: 1. This is not a case where the essential issues have been litigated.

Indeed, the Plaintiff’s claims did not proceed because of thejurisdictional question decided in the Grenier case. 2. The record clearly disclosed that Mr. Trainor, from the year 2003 onward, has persistently sought to establish his claims. 3. The Plaintiff initially tried to personally negotiate his way through the bureaucratic process and the hurdles which he faced there. 4. At first, he represented himself. He then hired and fired two lawyers along the way, both of whom he is now suing for professionalnegligence. 5.

After Justice Ratushny’s decision, he started an action in the Federal Court which was abandoned. Then he sought to comply withthe law as set out in the Grenier case and proceed with a judicial review. His motion to have the time for doing so extended was deniedin the Federal Court. 6. The record does not disclose any suggestion of prejudice to the Defendant should the action continue. There is utter prejudice tothe Plaintiff if it does not. [6] The Plaintiff brought the present motion on becoming aware of the Ontario Court of Appeal decision in Telezone v. the AttorneyGeneral of Canada,

(2008) ONCA 892. Our Court of Appeal in Telezone found that the Superior Court of this province had jurisdictionover an action where damages were claimed for losses alleged to have arisen as a result of a decision of the Federal Government, and aPlaintiff was not required to proceed by way of an application for judicial review before commencing such a claim.

This motion wasdelayed somewhat because the Crown in the Telezone case appealed to the Supreme Court of Canada and it was necessary to await theirdecision which was just released December 23, 2010. [7] For these reasons, I direct that the Order of Justice Ratushny, dated March 8, 2007 dismissing the Plaintiff’s action be set asideand leave is granted for the Plaintiff to forthwith file and serve his amended Statement of Claim as requested and which is attached toExhibit A of the Plaintiff’s supplementary motion record. [8] As to costs, I have reviewed the parties’ outline in this regard and note that the Plaintiff’s counsel has not executed the lawyer’scertificate which is a part thereof.

Provided that the Plaintiff’s counsel files a properly executed costs outline certified by him asrequired, he shall have his costs of the motion payable forthwith which I hereby fix in the amount of $10,000.00 all inclusive.

___________________________ Mr. Justice Roydon Kealey Released : June 14, 2011 CITATION : Trainor v. Canada Customs and Revenue Agency , 2011 ONSC 3424 COURT FILE NO.: 15038/03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RICHARD N. TRAINOR Plaintiff / Moving party - and – CANADA CUSTOMS AND REVENUE AGENCY Defendant / Responding party ENDORSEMENT Mr. Justice Roydon Kealey Released : June 14, 2011