Bouvier v Bouvier, 2023 SKCA 17

Court of Appeal for Saskatchewan Docket: CACV3949 Citation: Bouvier v Bouvier , 2023 SKCA 17 Date: 2023-01-31 Between: Jo-Ann Bouvier Appellant (Applicant) And Claude Bouvier Respondent (Respondent) Before: Richards C.J.S., Jackson and Caldwell JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On appeal from: 2021 SKQB 303 , Swift Current Appeal heard: June 16, 2022 Counsel: Jean-Pierre Jordaan for the Appellant M. Danish Shah for the Respondent Richards C.J.S. I.

INTRODUCTION [ 1 ] Jo-Ann Bouvier and Claude Bouvier were married for many years. Ms. Bouvier petitioned for divorce and a Court of Queen’s Bench order divided their family property so as to give her sole ownership of various pieces of farmland. Mr. Bouvier kept possession of the land and appealed to this Court. That appeal was unsuccessful. [ 2 ] Ms. Bouvier then filed an originating application seeking compensation for the income that she had lost after the issuance of the property division order by virtue of the fact that the land had remained in Mr. Bouvier’s hands pending the resolution of his appeal.

A Queen’s Bench judge struck her application as being an abuse of process: Bouvier v Bouvier , 2021 SKQB 303 . He reasoned that, in light of the appeal that had been taken from the property division order, the question of post-order income was res judicata . Ms. Bouvier appeals from that decision. [ 3 ] As explained below, I conclude that the Chambers judge erred in his application of the doctrine of res judicata and find that Ms. Bouvier’s appeal must be allowed. II. BACKGROUND [ 4 ] The Bouviers were married in 1982. They separated in 2011. [ 5 ] Ms.

Bouvier petitioned for divorce, equal division of the family home and unequal division of the family property. Mr. Bouvier did not provide any financial disclosure nor did he file an answer or otherwise participate meaningfully in the proceedings. [ 6 ] Ms. Bouvier eventually applied for judgment. Mr. Bouvier failed to appear in Chambers on the return date of the application and, on June 26, 2017, an order [Order] was made granting the divorce and vesting eight quarters of farmland [Land] in Ms. Bouvier’s name. [ 7 ] Mr. Bouvier retained possession of the Land and filed a notice of appeal on July 26, 2017.

However, he then failed to pursue the appeal. This prompted an eventual referral by the Registrar to this Court on the question of whether the appeal should be dismissed as abandoned. Mr. Bouvier ultimately filed his appeal book and factum and the matter proceeded to hearing. [ 8 ] Mr. Bouvier’s appeal was dismissed on November 26, 2020: Bouvier v Bouvier , 2020 SKCA 133 [ Appeal Decision ]. There will be more to say about the Appeal Decision later in these reasons. For present purposes, it is enough to note that Tholl J.A., writing for the Court, declined to accept Mr. Bouvier’s arguments that (

a) he had not received adequate notice of the application for judgment, (

b) the judge who had made the Order did not have sufficient evidence of the value of the family property to deal with its division, and (

c) it had been an error to divide the family property unequally. III. THE DECISION UNDER APPEAL [ 9 ] On July 7, 2021, Ms. Bouvier filed an originating application wherein she sought, in relevant part, an order directing Mr. Bouvier to (

a) provide an accounting of all rental and other income received from the Land after June 26, 2017, the date the Order had been issued, and (

b) pay the full amount of any such income to her. [ 10 ] Mr. Bouvier opposed the application on the central basis that Ms. Bouvier was relitigating an already decided issue, i.e., the

question of him receiving income from the Land post-Order. He took the position that this Court had dealt with that matter in the Appeal Decision and that, as a result, the application disclosed no reasonable claim and was frivolous and vexatious and an abuse of process as per Rules 7-9(2)(a), (

b) and (

e) of The Queen’s Bench Rules . [ 11 ] In advancing his res judicata argument, Mr. Bouvier relied on the following passages of the Appeal Decision : [30] With regard to the alleged impropriety of transferring farmland to Ms. Bouvier without allowance for the value of the growing crops after Mr. Bouvier had paid for all of the input costs for the crop year, I find that issue is now moot. As a result of the delay caused by the appeal, Mr. Bouvier would have harvested the 2017 crop, along with the three subsequent years’ crops. … [34] The judgment granted by the Chambers judge provided Ms.

Bouvier with an unequal distribution of the family property as requested in the petition and the application. The basis upon which Ms. Bouvier claimed an unequal distribution of family property was set out in her affidavit. She averred that Mr. Bouvier had retained all of the income from the farmland since the separation. She further averred that, during the marriage, her father had gifted the parties land and gifted her the money that she held as investments. Broadly speaking, she sought to have each party keep the investments that were in his or her name, have the farmland divided in specie and have Mr.

Bouvier retain the vehicles and equipment valued at $325,000. This provided Ms. Bouvier with approximately $1.1 million more in property than Mr. Bouvier in the context of the property that was known. … [41] Turning to the alleged evidentiary deficit, Mr. Bouvier points to two problems. First, he says the land that was gifted is not identified nor is value ascribed to that land. While it would have been better for Ms. Bouvier to have more precisely identified the exact land that was gifted to them, I note that the land was divided in specie with Mr.

Bouvier receiving land with 47% of the total value of the land and Ms. Bouvier receiving 53% of the land value, after taking into account the mortgage and writ for which Ms. Bouvier retained responsibility. By that point in time, Mr. Bouvier had retained 100% of the income from all of the farmland for the five crop years that had passed since the petition was issued and has now retained that income for another four years. It is difficult to see an inequity in these circumstances that would justify appellate intervention. As a second evidentiary issue, Mr. Bouvier submits Ms.

Bouvier’s affidavit states the land and money were gifted to both parties. On this point, Mr. Bouvier is simply in error. Ms. Bouvier’s affidavit does state the land was gifted to both of them, but it states the money was gifted solely to her. [ 12 ] The Chambers judge took these passages as showing that this Court had been aware of Mr. Bouvier’s overholding of the Land. He said that, based on those passages, it was safe to assume Ms. Bouvier herself had been alert to the fact that she had received no post- Order income from the Land. This led him to conclude that Ms.

Bouvier could or should have raised the issue of the post-Order income with this Court and could have asked the Court to provide directions in that regard. He also appeared to suggest that the Court might have actually adjudicated the issue of how to account for post-Order income from the Land. His key reasoning was as follows: [16] Ms. Bouvier had the opportunity of raising with the Court of Appeal the issue of the post-judgment income and could have easily asked the Court of Appeal to provide directions.

As the above emphasized quotation points out – a party is charged with raising “every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time”. In my opinion Ms. Bouvier could have and should have done exactly that – requested direction from the Court of Appeal about the income over the four years of appellant time. The Court of Appeal would have had the jurisdiction to provide such directions such as reconsideration by the lower court or otherwise.

It is interesting to note Justice Tholl’s comments emphasized at para. 41 of the [ Appeal Decision ] which seemed also to support adjudication of the issue of accounting for the income off the lands in the court’s reasoning. Accordingly I find this third and final requirement of the plea has been made out by Mr. Bouvier. … [18] In short I find myself in agreement with Mr.

Bouvier that this issue was in some respect before the Court of Appeal (again, para. 41 of the [ Appeal Decision ]) but more importantly, should have been argued in that forum as opposed to a year later in an originating application under an entirely separate court file. [19] I have been persuaded that the plea of res judicata brought by Mr. Bouvier as an answer to the originating application should be accepted and that accordingly the originating application must be struck pursuant to Rule 7-9(1)(

a) because the action becomes an abuse of process for offending the doctrine of res judicata . I therefore dismiss the application without needing to consider the other arguments raised. IV. ANALYSIS [ 13 ] Ms. Bouvier takes issue with the decision of the Chambers judge. She submits that he erred by finding that the doctrine of res judicata was applicable in the circumstances at hand and contends that, even if the doctrine was engaged, this is a special circumstance where it should not have been applied.

I find it necessary to deal with only the first of these arguments. [ 14 ] By way of introduction, I note that the doctrine of res judicata has two forms: issue estoppel and cause of action estoppel. In simplest terms, as explained by Donald J.

Lange in The Doctrine of Res Judicata in Canada , 5th ed (Toronto: LexisNexis, 2021) at 1, “issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding”. [ 15 ] Although the picture is perhaps not fully clear, I understand the Chambers judge to have approached the doctrine of res judicata from two directions.

The first was by saying that there were comments in paragraph 41 of the Appeal Decision “which seemed also to support adjudication of the issue of accounting for the income off the lands in the court’s reasoning” (at para 16). I take this to be a reference to the part of paragraph 41 of the Appeal Decision where the Court said this:

[41] … Mr. Bouvier had retained 100% of the income from all of the farmland for the five crop years that had passed since the petitionwas issued and has now retained that income for another four years. It is difficult to see an inequity in these circumstances that wouldjustify appellate intervention. … [16] This approach, self-evidently, involves a suggestion that Ms. Bouvier’s attempt to recover income from the Land post-Orderwas estopped by or through the operation of issue estoppel, i.e., by the notion that, in the Appeal Decision, this Court had already clearlyadjudicated the question of Ms.

Bouvier’s entitlement to the income now in issue. [17] This aspect of the Chambers judge’s reasoning was misplaced. As noted above, the Appeal Decision was grounded in anapplication brought by Ms. Bouvier wherein she had asked for a divorce, equal division of the family home and unequal division of thefamily property. She did not seek the income from the Land earned post-Order for the simple and obvious reason that no such claim wasavailable to her when she filed the petition – she did not own the Land at that point and, hence, had no direct claim to income from it.

Anysuch claim arose only after the Order was issued and once Mr. Bouvier had retained possession of the Land. In the same vein, and notsurprisingly, the notice of appeal filed by Mr. Bouvier with this Court in the proceeding that culminated in the Appeal Decision saidnothing about post-Order income from the Land. [18] Accordingly, in the end, the question of Ms. Bouvier’s entitlement to the income now in question was simply not before theCourt when it made the Appeal Decision. Although that decision refers to this income in paragraph 41, that cannot be taken to have beenan adjudication of Ms.

Bouvier’s claim to the income in issue. On the pleadings that underpinned the appeal, the Court had no authority todecide that issue and the Appeal Decision must be read and understood in light of that fact. Notably, the particulars of the Appeal Decisionpurported to resolve no more than Mr. Bouvier’s allegations of error in the making of the Order and the Judgment of the Court, taken outafter the Appeal Decision was rendered, says in relevant part only that “this appeal be dismissed”.

There is no reference to the issue ofpost-Order income. [19] I turn, therefore, to the second line of res judicata thinking employed by the Chambers judge. This was to the effect that thestatus of the income from the Land post-Order was something that, as per paragraph 16 of his decision, the Chambers judge believed Ms.Bouvier “could have and should have” raised before this Court in the proceedings giving rise to the Appeal Decision. This line ofreasoning was also misplaced.

Let me explain. [20] As a matter of principle, the doctrine of res judicata can extend into the realm of “could have and should have” referenced bythe Chambers judge. The case law in this regard is somewhat involved but, for the purposes of this decision, it is enough to make twocentral points. [21] First, there is at least some authority for the proposition that issue estoppel can reach so far as to include a question that couldhave been raised in an earlier proceeding. See, for example: Danylkiw v Danylkiw (2004), (ON CA), 9 RFL (6th) 93(Ont CA).

The decision in T & D Roofing Ltd. v Canadian Imperial Bank of Commerce (1993), (SK KB), 111 Sask R308 (QB), relied on by the Chambers judge, also seems to take this view, even though it references Henderson v Henderson (1843), 67 ER313, a case usually seen as speaking to cause of action estoppel, not issue estoppel. I make no comment as to whether decisions of this sortreflect a proper understanding of issue estoppel.

My present purpose is to do no more than flag their existence. [22] The second way in which res judicata can or might extend to cover what could have or should have been advanced in an earlierproceeding is, of course, through cause of action estoppel. It is directly concerned with the idea that parties must bring forward all of theirclaims and defences with respect to the cause of action in a proceeding and provides that parties will be barred from raising such claimsand defences in subsequent proceedings. Some of the authorities in this area use very broad language.

In Henderson v Henderson, forinstance, Wigram V.C. stated that the plea of res judicata “applies … not only to points upon which the Court was actually required by theparties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and whichthe parties, exercising reasonable diligence, might have brought forward at the time” (at 319). Other cases take a somewhat narrowerapproach.

For example, in Hoque v Montreal Trust Co. of Canada, 1997 NSCA 153, 162 NSR (2d) 321 (WL), Cromwell J.A. (as he thenwas) conducted a careful analysis of the relevant case law and concluded, at paragraph 38, that “[t]he better principle is that those issueswhich the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred” (emphasis in original).However, for present purposes, I do not propose to sort through the inconsistencies that exist in this corner of the law. [23] The reason that I find it unnecessary to confirm the reach or boundaries of issue estoppel and cause of action estoppel isbecause, even in their broadest conceptions, neither can be applicable here in relation to Ms.

Bouvier’s claim to recover post-Order incomeearned from the Land. That claim was simply not available to her when she filed her petition given that she did not own the Land at thetime and given that an order with respect to it had not yet been made. As a result, there is no room to say, even on the widest view of thelaw, that Ms. Bouvier should have or could have included a claim for post-Order income in her pleadings. No such claim was available. [24] The Chambers judge appears to have believed that this situation somehow changed when the dispute between Mr. Bouvier andMs.

Bouvier moved on to the appeal in this Court. As noted above, he wrote as follows: [16] Ms. Bouvier had the opportunity of raising with the Court of Appeal the issue of the post-judgment income and could have easilyasked the Court of Appeal to provide directions. As the above emphasized quotation points out – a party is charged with raising “everypoint which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have broughtforward at the time”. In my opinion Ms.

Bouvier could have and should have done exactly that – requested direction from the Court ofAppeal about the income over the four years of appellant time. The Court of Appeal would have had the jurisdiction to provide suchdirections such as reconsideration by the lower court or otherwise. It is interesting to note Justice Tholl’s comments emphasized at para.41 of the [Appeal Decision] which seemed also to support adjudication of the issue of accounting for the income off the lands in thecourt’s reasoning. Accordingly I find this third and final requirement of the plea has been made out by Mr.

Bouvier. (Emphasis added) [25] These observations appear to reflect a misunderstanding of the mandate of the Court of Appeal. With limited exceptions notapplicable here, the work of this Court is appellate in nature. It reviews the decisions made by lower courts and tribunals pursuant to the

rights of appeal that exist under The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , and other statutes. It has no remit to take on and decide new claims and new causes of action that arise between the parties to an appeal after the decision under appeal was delivered. [ 26 ] In order to address Ms. Bouvier’s claim for post-Order income from the Land, this Court would have had to have transformed itself into a trial court by way of fielding and sorting through evidence as to the amount of income Mr.

Bouvier had received from the Land, the nature and the amount of expenses he had incurred in earning that income, and so forth. Thus, if Ms. Bouvier had asked the Court to provide her with a remedy in relation to the post-Order income issue, the Court would necessarily have had to decline to enter into any such exercise and, at most, it would have advised Ms.

Bouvier to attempt to secure the relief she sought by commencing an appropriate proceeding in what was then the Court of Queen’s Bench. [ 27 ] The somewhat curious aspect of the Chambers decision is that, for his part, the Chambers judge did not seem to think that this Court could or would have addressed a claim to post-Order income even if Ms. Bouvier had raised that issue during the appeal. Rather, he was of the view that Ms.

Bouvier could and should have sought directions about how to address the post-Order income issue and suggested that the Court would have had jurisdiction to provide “directions such as reconsideration by the lower court or otherwise” (at para 16). This Court, however, would have had no authority to provide legally binding directions in this regard because the claim to post- Order income was not part of the lis or appeal before it. Accordingly, the Chambers judge was on the wrong foot both in thinking that the income issue was something that Ms.

Bouvier could have raised before this Court during the appeal and in thinking that it was something that she should have raised at that time. [ 28 ] In short, regardless of how far the doctrine of res judicata extends with respect to matters that “should” or “could” have been raised in previous proceedings, it can have no application here. In the proceedings that led to the Appeal Decision , there was no way that Ms.

Bouvier could have obtained the relief that she has asked the Chambers judge to provide. [ 29 ] In the end, therefore, I respectfully conclude that the Chambers judge misapprehended the doctrine of res judicata and its applicability to the circumstances of this case. V. CONCLUSION [ 30 ] This appeal must be allowed and the order dismissing Ms. Bouvier’s application set aside. Ms. Bouvier is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.