Introduction:
As stated in Ernst & Young Inc. v. Central Guaranty Trust Company, 2006 ABCA 337 (CanLII), at para 29, <https://canlii.ca/t/1q08g#par29>:
"The doctrine of res judicata has two branches: issue estoppel and cause of action estoppel. Issue estoppel precludes the litigation of an issue previously decided in another court proceeding, and cause of action estoppel precludes the litigation of a cause of action which was adjudged in a previous court proceeding: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Ontario: LexisNexis Canada Inc., 2004) at 1 [Res Judicata]."
"In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters."
Purpose:
As stated by Member Dawn Sullivan in an LTB order that was issued today (File Number: CEL-97903-21), "the doctrine of res judicata (or issue estoppel) is intended to bring finality to litigation, so that parties may not re-litigate matters that have already been decided by a court of competent jurisdiction".
As stated in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), [2013] 2 SCR 125, <https://canlii.ca/t/fwx06>:
"The ultimate goal of issue estoppel is to protect the fairness of finality in decision‑making and the avoidance of the relitigation of issues already decided by a decision‑maker with the authority to resolve them. [...]
"[78] The “twin principles” which underlie the doctrine of issue estoppel — “that there should be an end to litigation and . . . that the same party shall not be harassed twice for the same cause” (Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.), at p. 946) — are core principles which focus on achieving fairness and preventing injustice by preserving the finality of litigation. [...]
"[91] As a species of res judicata, issue estoppel is conceptually related to the doctrines of cause of action estoppel, collateral attack, and abuse of process (Lange, at pp. 1-4). Both individually and together, these doctrines are of fundamental importance to the finality principle — they are “not merely . . . technical rule[s]” but rather, “g[o] to the heart of a system of civil justice that strives for the truth of the matter [and] recognizes that perfection is an unattainable goal and finality is a practical necessity” (Revane v. Homersham, 2006 BCCA 8, 53 B.C.L.R. (4th) 76, at para. 17)."
LTB context:
If you listen to LTB hearings (post on how to watch LTB hearings from anywhere), you will often see situations where the landlord issued his first N12, failed at the LTB, then issued another N12 or perhaps an N13, followed by yet another one, and so on (presumably until a desirable outcome is achieved). So the question arises: when exactly would the doctrine of res judicata apply? I.e. in what situations would the landlord be precluded from advancing his claim again?
The simplified answer to this is this:
- If the landlord's N12 (or N13, etc) failed due to a technical issue (usually dismissed without prejudice), e.g. due to not stating the termination date correctly, not identifying the unit correctly (RTA section 43), etc, or not paying compensation by the termination date (RTA sections 48.1 / 49.1, 55.1, 83(4)), the landlord can still issue a new N12 and proceed with a new L2 application.
- But if the N12 was dismissed based on the substance of the case, e.g. the fact that the landlord failed to prove on a balance of probabilities that he (or his eligible family member) genuinely intended to occupy the unit for residential use for at least 1 year, the doctrine of res judicata would apply and the landlord would be precluded from bringing new legal action, trying to re-litigate the issue if it involves the same parties.
As stated by Member Dale Whitmore in Grewal v Piercey, 2020 CanLII 116541 (ON LTB), <https://canlii.ca/t/jgbzs>:
"5. Res judicata only applies where an issue has been decided on its merits. Where an application is dismissed on procedural grounds, without the substance of the case having been decided, res judicata does not apply and the applicant is free to bring a new application once the procedural defects have been corrected (Barber v. McCuaig (2), [1900] O.J. No. 179; Golden Enterprises Ltd. v. Hammerling, [1978] M.J. No. 158; also the Canadian Encyclopedic Digest and the cases cited therein)."
As stated by Member Renee Lang about issue estoppel in TST-76205-16 (Re), 2016 CanLII 88291 (ON LTB), at para 12, <https://canlii.ca/t/gw537#par12>:
"12. The criteria for issue estoppel, as per Richard A. Feldman in his Residential Tenancies, 9th ed. (Toronto: Carswell, 2009) at p.90, are:
i) the same question (issue) currently being advanced has already been decided in an earlier proceeding;
ii) that earlier decision was final; and
iii) the parties (or their privies) are the same now as in that earlier proceeding."
As for the cause of action estoppel (the second branch of res judicata), Member Roderick Flynn stated in TST-94817-18 (Re), 2019 CanLII 87014 (ON LTB), <https://canlii.ca/t/j2gs5>:
"17. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):
In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a 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 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, in which the parties, exercising reasonable diligence, might have brought forward at the time.
18. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:
i) there must be a final decision of a court of competent jurisdiction in the prior action;
ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;
iii) the cause of action in the prior action must not be separate and distinct;
iv) 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.
19. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court/tribunal."
By the way, in cases of appeal, "the fact that the order is under appeal does not change the fact that the order is final", so it would not change applicability of the doctrine of res judicata (see TST-76205-16 (Re), 2016 CanLII 88291 (ON LTB), <https://canlii.ca/t/gw537>).
LTB examples:
Let's look at some LTB examples specific to N12 and N13.
1. Examples where res judicata did not apply:
1)
Reason: the landlord's N12 was dismissed because he failed to pay compensation by the termination date, so he could still issue a new N12 (this time, paying compensation) and file a new L2 application.
"3. The Supreme Court of Canada has determined that there is discretion to refuse to apply the doctrine of issue estoppel or res judicata in circumstances where injustice or unfairness may be the result (Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.J. No 46[2]).
[...]
8. The hearing of the prior L2 application took place on April 4, 2018. As of that hearing date, the Landlord had not paid the Tenants one month’s rent as compensation. Since section 55.1 states that the compensation must be paid no later than the termination date in the notice of termination, which was March 31, 2018, the statutory requirements of section 55.1 of the Act were not met and the Board had no jurisdiction to terminate the tenancy due to section 83.4 of the Act.
9. The L2 application was dismissed due to the Landlord’s failure to meet the requirements of section 55.1 of the Act. That issue should have been dealt with as a preliminary matter without making findings on the substance of the issue in the application. The order determined that the Landlord was acting in good faith and required the rental unit for his own residential use. Those findings prevented the Landlord from filing another application with the Board to permit him to live in his own property even though he did comply with the requirements of section 55.1 of the Act in the second L2 application.
10. Similarly, if the notice of termination that the application is based on is not valid or if the affidavit required by section 72 of the Act is not provided, those issues are dealt with on a preliminary basis and no findings are made on the substantive issue so that a landlord is not prevented from filing another application on the same grounds after a valid notice of termination is issued or an affidavit is provided.
11. There was a procedural error made under the first L2 application since determinations should not have been made regarding good faith when the technical requirements for the application were not met. In effect, the findings made with respect to good faith barred the Landlord from ever applying for the same issue again even though the Member was satisfied that the Landlord had a good faith and genuine intention to live in the unit that he owns. In the circumstances, res judicata should not be applied and the second L2 application should be permitted to proceed now that the technical requirements under the Act have been met.
12. The Landlord owns the house that the rental unit is located in. He and his family used to live in it. He moved to make life easier for his son while he attended university in another City. The son is finished with his schooling and the family want to return to the family home. In the circumstances, it would be unfair and unjust to strictly apply the doctrine of res judicata since it would prevent the Landlord from ever being able to live in his property."
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2)
Reason: the landlord's first L2 application was based on an N12, the new L2 application was based on the N13, the Board also clearly stated in the first order: "My decision in this application does not prejudice any future finding about the Landlord’s use should the Landlord’s plans materially change."
"4. The Tenants also argued that the Landlord’s application should be dismissed because it is res judicata because of TSL-97116-18 which dismissed the Landlord’s N12. I disagree, paragraph 14 of that Order makes it clear that Member’s findings were not intended to bar any future applications by the Landlord in the event that any of his circumstances changed. The Member specifically says: “My decision in this application does not prejudice any future finding about the Landlord’s use should the Landlord’s plans materially change.” Moreover, N12 and N13 applications require different factual assessments."
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3)
Reason: the substantive issues were not heard originally, the first application was dismissed without prejudice.
"5. The Landlords applied to terminate the tenancy based on the notice. The Board dismissed the application in order TSL-89546-17, issued on December 21, 2017, because the Landlords had not obtained the permits necessary to do the proposed renovations.
6. The Landlords then obtained the necessary permits and served a new notice to terminate because of the renovations. This time, the termination date was May 31, 2018. In the resulting application, they argued that for various reasons they were not bound by the Board’s finding in TSL-79981-16. In order TSL-92810-18, issued on May 29, 2018, the Board rejected those arguments. The Board found that TSL-79981-16 was binding and that as a result, this is a yearly tenancy and notices of termination for renovations can only be effective on October 31 of each year. The Board dismissed the application without prejudice.
7. Despite having been successful, the Tenants felt that TSL-92810-18 ought to have been dismissed with prejudice. They filed a request to review the order on that basis. In TSL-92810-018-RV, issued on July 4, 2018, the Board denied the review.
8. The Tenants have appealed TSL-92810-18 and TSL-92810-18-RV to the Divisional Court. The appeal has not yet been decided.
9. The Landlords have now served a third notice to terminate for renovations, effective October 31, 2018. That is the notice that is before me in this proceeding.
Is the application barred by res judicata?
10. The Tenants move that the application be dismissed on the basis that it is barred by the principle of res judicata. They also argue that the question of whether the application is barred by res judicata is currently before the Divisional Court, and must be decided there before the application can proceed.
11. Res judicata is the principle that a party may not litigate the same issue twice. If a court or tribunal of competent jurisdiction has already decided an issue between the parties, then the parties are bound by that determination. They may not bring new proceedings seeking a different outcome.
12. It is trite law that res judicata only applies where an issue has been decided on its merits. Where an application is dismissed on procedural grounds, without the substance of the case having been decided, res judicata does not apply and the applicant is free to bring a new application once the procedural defects have been corrected (Barber v. McCuaig (2), [1900] O.J. No. 179; Golden Enterprises Ltd. v. Hammerling, [1978] M.J. No. 158; also the Canadian Encyclopedic Digest and the cases cited therein). In deciding a res judicata motion, I must look at the Board’s reasons for its prior decisions and determine whether they were made on the merits, or on procedural grounds.
13. In the present case, the substantive issues before me are whether the Landlord intends to renovate the property, whether the renovations require vacant possession, whether the necessary permits have been obtained, and whether and when the tenancy should be terminated. It is clear from the Board’s reasons in TSL-79981-16, TSL-89546-17, and TSL-92810-18 that those issues have never been decided. TSL-79981-16 and TSL-92810-18 were dismissed because the notices of termination had the wrong dates. TSL-89546-17 was dismissed because the Landlords did not yet have the necessary permits at that time. The substantive questions before me have never been considered by the Board.
14. That would be sufficient to decide the Tenants’ motion, except for one complication: TSL-92810-18 was dismissed without prejudice. “Without prejudice” means that the Member who heard the case has already concluded that, in reaching her decision, she did not decide the case on the merits. In other words, I might not need to look at the reasons for TSL-92810-18 in order to decide the Tenants’ motion. I might conclude, simply from the fact that the dismissal was without prejudice, that the merits were not considered and res judicata does not apply.
15. The Tenants have appealed the “without prejudice” determination to the Divisional Court. They argue that the appeal stays the determination, and that this application cannot proceed until the Court has decided the appeal.
16. I am prepared to assume, for the sake of argument, that the appeal has the effect of staying the “without prejudice” determination. If it does, then that simply means that I cannot decide the present motion by relying on the previous Member’s conclusion that she had not considered the case on its merits. I must instead look at her reasons to decide for myself whether she considered the merits. I have done so. It is abundantly clear that the Board did not decide the issues on the merits in any of the previous decisions, including TSL-92810-18. The defense of res judicata is not available to the Tenants."
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2.
Examples where res judicata applied:
4)
Reason: the landlord tried to re-litigate the same substantive issue.
"9. When applying the maxim of res judicata, the overriding consideration is the avoidance of duplicative litigation and finality to litigation is the prime objective. The doctrine of res judicata has three elements: issue estoppal (sic), cause of action estoppal (sic), and abuse of process.
10. In Erschbamer v. Wallster, 2013 BCCA 76, the Court of Appeal for British Columbia provided a useful summary of the essential nature of each of the three doctrines of res judicata as follows:
“The general principles of the doctrine of res judicata were reviewed by this Court relatively recently in Cliffs Over Maple Bay. The doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters.”
11. In the present case, there exists a final decision at the tribunal in a previous application; the parties to the present action are “in privity” with the parties to the prior action (pursuant to section 18 of the Act); the cause of action (notice of termination to the tenancy) is not distinct from the previous decision; and the issue raised by the Landlord there (interpretation of the lease clause) is identical to the issue raised in the current application. While the Courts have also indicated that res judicata is a flexible doctrine that should not be applied in a rigid manner that results in an injustice, I see no reason not to apply it here.
12. The Board has already determined in order TSL-79981-16 that the only permitted termination date for the tenancy that complies with the notice requirements in subsection 50 (2) of the Act is October 31 of the applicable year. Applying the maxim of res judicata, I find that this determination should be applied in the matter before me. As a result, I must find that the Landlord’s N13 does (sic) comply with subsection 50 (2) of the Act as it fails to specify a termination date of October 31, 2018."
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5)
Reason: the landlord tried to re-litigate the same substantive issue.
"2. This was the Landlord’s second application to evict the Tenants because she required the premises for her own residential occupation. The first was application CEL-87204-19, which was dismissed on September 10, 2019. After that application was dismissed, the Landlord served a new notice of termination on the same grounds, and filed the present application to evict the Tenants.
3. This application was heard on February 4, 2020. In its decision issued on March 6, 2020, the Board dismissed the application on the basis that it was barred by the principle of res judicata. The Landlord argues that this was an error.
4. Res judicata is the principle that a party may not litigate the same issue twice. If a court or tribunal of competent jurisdiction has already decided an issue between the parties, then the parties are bound by that determination. They may not bring new proceedings seeking a different outcome.
5. Res judicata only applies where an issue has been decided on its merits. Where an application is dismissed on procedural grounds, without the substance of the case having been decided, res judicata does not apply and the applicant is free to bring a new application once the procedural defects have been corrected (Barber v. McCuaig (2), [1900] O.J. No. 179; Golden Enterprises Ltd. v. Hammerling, [1978] M.J. No. 158; also the Canadian Encyclopedic Digest and the cases cited therein).
6. The Landlord in this case argues that the original application CEL-87204-19 was dismissed on procedural grounds, not decided on its merits, for two reasons. First, she argues that the application was procedurally defective, so the merits should not have been considered at all. Second, she argues that the central issue in the case was decided on the basis that she had not adduced certain necessary evidence, and that this constituted a dismissal on procedural grounds. Therefore, she argues that the merits of the case have not yet been decided and res judicata does not apply.
7. For the reasons that follow, I am not persuaded by either of the Landlord’s arguments. The review will be denied.
Was the first application procedurally defective?
8. The Landlord says that, in CEL-87204-19, she did not file an affidavit sworn by the person who intended to move into the unit, as required by subsection 72(1)(a) of the Residential Tenancies Act, 2006, SO 2006, c 17 (the 'RTA'). She also says that she did not pay the Tenant the compensation required by section 48.1 of the RTA.
9. Because of these two procedural defects, the Landlord argues that her application either was, or ought to have been, dismissed. She argues that the Board ought not to have gone on to consider the substantive question of whether she genuinely intended to move into the unit. She relies on the reasoning in CEL-75559-18-RV (Re), 2018 CanLII 88526 (ON LTB), in which the Board found that res judicata did not apply in a case where a Member dismissed an application on procedural grounds, but then still went on to consider the substantive merits of the case.
10. I am not persuaded by the Landlord’s argument. In its reasons for its decision in CEL- 87204-19, the Board made the following findings:
The Landlord provided an affidavit from herself, and her son, M.G., affirming that they intend to reside in the rental unit for a period of at least one year.
The Landlord offered to waive the rent owing for June 2019 as the compensation required under section 48.1 of the Act.
11. In other words, the Board made clear findings of fact that the procedural requirements for the application had been met. The Board then went on to consider the merits of the application.
12. I am not persuaded by the Landlord’s argument that the Board dismissed application CEL-87204-19 because the affidavit was not filed or because compensation was not paid. The Board’s reasons clearly state the contrary.
13. I am also not persuaded by the Landlord’s argument that the Board ought to have dismissed her application on procedural grounds. The Board made findings of fact that the procedural requirements of the application had been satisfied. Those findings have not been challenged on review or appeal.
Was the Landlord’s failure to call certain evidence a procedural defect?
14. To succeed in application CEL-87204-19, the Landlord needed to prove, on a balance of probabilities, that she genuinely intended to move into the Tenant’s unit. After hearing all the evidence that the parties chose to adduce, the Board made the following finding:
Based on the evidence before me, I am not satisfied that the Landlord, in good faith, requires possession of the rental unit for residential occupation.
[…]
I find based on the evidence before me, that it is likely that the Landlord intends to turn the rental unit into a rooming house once the Tenants vacate and does not intend to reside in the rental unit herself.
15. In reaching its conclusion, the Board weighed the evidence adduced by both parties. The Board considered that the Landlord did not testify, and that the only evidence in support of her application was hearsay testimony from her legal representative. The Board concluded that the evidence was insufficient to prove the Landlord’s case on a balance of probabilities.
16. The Landlord now argues that her testimony was necessary to her application, and that her failure to testify was therefore a procedural defect in her application.
17. I am not persuaded by that argument, either. The RTA does not contain any procedural requirement that a party testify in a proceeding. It was up to each party to decide what witnesses to call. The Landlord’s failure to testify was a litigation decision that she was entitled to make. The Board decided the substantive merits of the case on the evidence before it.
Result
18. The Board did not err in finding that the Landlord’s second application was barred by res judicata. The Landlord sought to prove the same claim that she had failed to prove in CEL-87204-19. It would have been grossly unfair to the Tenants to permit the Landlord to re-litigate a claim that had already been decided on the evidence.
19. Since I am not satisfied that the decision contains a serious error, the review will be denied."
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6)
Reason: the N12 / L2 with the same parties as in the ruling directly above (Grewal v Piercey, 2020 CanLII 116541 (ON LTB), <https://canlii.ca/t/jgbzs>) was dismissed once again based on res judicata.
During the hearing (held on July 29, 2021) Member Sullivan said that the parties were the same, the issue was the same and there was already a final order issued by the Board, so the application had to be dismissed.
File Number: CEL-97903-21
Issued on September 13, 2021
"3. The first application (CEL-87204-19) was dismissed on September 10, 2019 as the Hearing Member was not convinced the N12 notice of termination was served in good faith. Just seven weeks after that application was dismissed, the Landlord served a new N12 notice on the same grounds. The second application (CEL-90356-19) was dismissed on the basis that it was barred by the principle of res judicata. This decision was confirmed upon review. Approximately two months after the decision was confirmed, the Landlord served yet another N12 notice on the same grounds.
4. The doctrine of res judicata (or issue estoppel) is intended to bring finality to litigation, so that parties may not re-litigate matters that have already been decided by a court of competent jurisdiction.
5. The question to be decided in this application is the same question that has been decided in the first application. That decision was a final decision on the question and the parties are bound by that determination. The parties are the same and cannot relitigate the same question that has already been decided in the hopes of seeking a different outcome. I am satisfied that res judicata is applicable in this matter and that I do not have jurisdiction to hear this matter."
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7)
Reason: "the Landlord is not asserting that he formed a new intention to occupy the unit after February 10. Rather, he is asserting that he has intended all along to move in, and now has better evidence to prove the genuineness of his intention."
"1. The Landlord applies terminate the tenancy because he intends to move into the basement unit with his family.
2. As a preliminary matter, the Tenant moved to dismiss this aspect of the Landlord’s claim because it had already been decided in a prior proceeding. I granted the Tenant’s motion.
3. Application TNL-91087-17 was heard on April 12, 2017. In that application, the Landlord sought to terminate the tenancy because he required the use of the basement unit for residential occupation by his wife and child, based on a notice of termination that he served on February 10, 2017.
4. Pursuant to Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 (Div. Ct.), to succeed in application TNL-91087-17, the Landlord needed to establish that he genuinely intended that his wife and child would live in the unit.
5. At the hearing of TNL-91087-17, the Landlord testified that his wife and children lived in Mexico. He planned for them to move to Canada and live in the basement unit. The Landlord himself traveled back and forth between Canada and Mexico for business, and intended to stay in the basement with his family whenever he was in Canada.
6. The Board dismissed the application. The Member considered that the Landlord’s wife did not testify, and that there was no evidence that the family had made any arrangements to move to Canada, such as enrolling the children in Toronto schools. The Member also considered the Landlord’s obvious animosity towards the Tenant. Having weighed the evidence, the Member found that the Landlord had not proved, on a balance of probabilities, that he genuinely intended that his wife and children would move into the unit.
7. On June 18, 2017, the Landlord served a new notice to terminate the tenancy for own use. The only difference is that this time, the notice says that he will occupy the unit as well as his wife and children. He brings the present application based on that notice.
8. The Landlord argues that his circumstances have changed since TNL-91087-17 was decided. He has changed the way he runs his business so that he will now live in Canada more of the time. His family has moved to Toronto and the children are enrolled in school. His wife has provided a detailed affidavit in support of the application.
Analysis
9. In TNL-91087-17 the Board determined that the Landlord’s intention of February 10, 2017 to move his family into the unit had not been proved to be genuine. The parties are bound by that determination, and may not re-litigate it.
10. If, after February 10, 2017, the Landlord forms a new intention to move into the unit, he will not be barred from bringing a new application based on his new intention. TNL-91087-17 only determined the genuineness of the Landlord’s intention as of February 10.
11. However, in this case I find that the Landlord is not asserting that he formed a new intention to occupy the unit after February 10. Rather, he is asserting that he has intended all along to move in, and now has better evidence to prove the genuineness of his intention.
12. Most of the new circumstances the Landlord relies on are not new circumstances at all. He asserts that his wife and children have now moved to Toronto and enrolled in school. That is not new; it is exactly what he said would happen when he testified in TNL-91087-17. In other words, the Landlord is saying that his family’s actions subsequent to that hearing have borne out the truth of his testimony in that hearing.
13. Similarly, the fact that the Landlord’s wife has provided a detailed affidavit is not a new circumstance. It is simply better evidence that could have been provided in TNL-91087-17.
14. The only thing the Landlord is really alleging to have changed since February 10, 2017 is that his business structure has changed so that he now spends more time in Canada. I do not find that change to be relevant. He is still saying that he intends to occupy the unit whenever he is in Canada. An increase in the frequency of his intended stays would not constitute a new intention to occupy formed after February 10.
15. I therefore find the Landlord’s own-use application to be barred by the principle of res judicata. He is seeking to prove the same intention that he failed to prove in TNL-91087-10. The claim has already been heard and decided. It would be grossly unfair to the Tenant to permit the Landlord to re-litigate the claim now that he has perfected his evidence."
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8)
Reasons:
Same issue, same parties, the order was final.
"1. In August 2012, the Landlord served on the Tenant a notice to terminate the tenancy for October 31, 2012. The Landlord claims that his son requires possession of the rental unit for residential occupation. The Landlord filed application NOL-09488-12 based on this notice.
2. The application was heard on October 19, 2012. Only the Landlord’s Representative,. Cheryl Williams and the Tenant attended the hearing. An Order with reasons was issued on October 22, 2012 dismissing the Landlord’s application.
3. On November 13, 2012, the Landlord filed a request to review of the Order which was denied on November 15, 2012, by an ex-parte Order of the Board.
4. On November 27, 2012, the Landlord served on the Tenant a notice to terminate the tenancy for January 31, 2013. The Landlord is again claiming that his son requires possession of the rental unit for residential occupation. The Landlord filed the application based on that notice on November 28, 2012, file number NOL-10516-12.
Determinations:
1. The two parties accepted to proceed with the hearing by telephone on December 14, 2012 since I was a Member from the Eastern office of the Landlord and Tenant Board and therefore the issue of bias was moot.
2. The issue raised in the original application is the same issue raised in this application. The Landlord requires possession of the rental unit for the residential occupation by his son.
3. The parties involved in the original application are the same parties involved in this application.
4. The Order on November 15, 2012 was final.
5. The Landlord’s request for a review of the original Order was also final. There is an appeal process available for this final decision.
6. I find that the issue of estoppel applies and that the principle of res judicata applies and therefore the Landlord’s application is dismissed."
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Of course, the same principles apply to other notices and applications. For example, a ruling dismissing an N4 / L1 for rent arrears would not preclude the landlord from advancing an N8 / L2 claim for persistent late payments based on the same instances and periods of time, because the issues are different (one would be rent arrears, the other one - persistent late payments). See, for example, TSL-49814-14 (Re), 2015 CanLII 15596 (ON LTB), <https://canlii.ca/t/ggzbx>.
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Other examples of res judicata (outside of narrow N12 or N13 context):
9)
"2. The Tenant alleges the Board seriously erred in considering the Landlord’s second application for rent arrears when the Landlord’s earlier application for rent arrears had failed. In other words, the issue of rent arrears, flowing from the notice of termination, had already been decided in Order SOL-63521-15 and as such the issue was res judicata.
3. I disagree. I am satisfied that it was reasonable for the Board to determine that the prior notice of termination based on arrears of rent had failed because the notice of termination was deemed defective on the basis that the Landlord had failed to establish the lawful monthly rent for the tenancy. In Order SOL-63521-15 the issue of the lawful rent was not determined by the Board. Similarly the issue of what arrears were owing by the Tenant was also not reached in Order SOL-63521-15 issued November 12, 2015. Having failed to make final findings of fact with respect to the lawful rent and the arrears owing by the Tenant, the rent arrears claimed on this L1 application for non-payment of rent had not been previously determined by this Board. Accordingly, the doctrine of res judicata does not apply."
10)
"Res judicata
8. The request for review argues that if the work is found to be as a result of an agreement between the Landlord and the Tenant, the Landlord will be without remedies for any future damage to the unit. The purpose of the res judicata principle is to ensure the avoidance of duplicative litigation and give finality to litigation disputes between parties.
9. The Landlord has the opportunity to pursue the dispute he has with the Tenant concerning the work in their business relationship in other forums. It will be for future hearings to determine whether or not an application is estopped by the final decision in this application. The issues examined in each case are: whether the application puts forward substantially the same question already decided in the earlier proceeding; whether the previous decision was a final decision; and whether the parties are the same as in the earlier proceeding.
10. As there is no serious error in order TSL 90844-17, the request to review is denied. A review is not an opportunity to reargue your case in hopes of a more favourable outcome."
11)
"Res Judicata and Abuse of Process in relation to the April Orders
13. The Landlord argues that the T1 application should be barred by res judicata as the issues of illegal rent or charges should have been properly raised at the April 2018 hearing on the A1 application. The Landlord argues that the Tenant should have avoided duplicative litigation and brought finality to the litigation. They assert that the facts that the Tenant bases his claim upon were known to him at all times, in that rents were raised several times by the Landlord and HST was always paid; the April Orders cannot be used as a benefit to litigate by installment; the facts did not change only the legal situation changed.
14. The Landlord also argues cause of action estoppel should preclude the Tenant from asserting the claims as (i) the claims were asserted or (ii) the opportunity of asserting the claims was available and should have been asserted in the past proceedings.
[...]
17. The Board is a statutory tribunal and it has the authority to consider claims that falls within its jurisdiction. The Act contains a 1 year limitation period for T1 claims in s. 135(4) and that is what must be applied. The principles of res judicata cannot possibly arise because there has not been a previous final determination on this specific issue. If the issue of whether the Act applies was not resolved until the April 2018 order it would not seem to be an abuse of process for the Tenant to wait until after that determination was made to file an application that can only be considered by the Board if the Act applies."
12)
"The Doctrine of Res Judicata
18. The doctrine of res judicata is a fundamental doctrine of the justice system in Canada and consists of two forms: issue estoppel and cause of action estoppel. The Supreme Court of Canada defined res judicata as “something that has already been decided”[2] and as “it has passed into a matter adjudged.”[3] When res judicata applies, a litigant is “estopped” by the previous proceeding. In the case of issue estoppel, a litigant is estopped because the issue has clearly been decided in the previous proceeding, while cause of action estoppel means that a litigant is estopped because the cause of action has passed into a matter adjudicated in the previous proceeding.[4]
19. There are three requirements for issue estoppel:
a. The issue is the same as that decided in the earlier decision.
b. The prior judicial decision was final.
c. The parties in both proceedings are the same (or their privies).
20. Developed through the common law in the courts, issue estoppel also applies to administrative tribunals such as the Board.[5] Decisions of the Board are final, pursuant to section 209 of the Act.
21. The present application relates to a request for a return of the same deposit and rental payment totalling $3,815.00. The only difference between SWT-15689-18 and the present application is the named Landlords. The cause of action, the rental unit and the Applicants are identical to the prior action.
22. While cause of action estoppel has been found within the administrative law context, the necessary requirements are considerably more stringent and the doctrine is more commonly cited in situations in which a tribunal decision estops a court from hearing the same matter again or vice versa, which is not the situation here.[6]
[...]
29. The Applicants stated in the application that the Landlords’ misrepresentation and fraudulent conduct was only uncovered after order SWT-15689-18 was issued and only with the assistance of their present Legal Representatives. They take the position that it would not have been a straightforward matter for the Applicants to have determined the true nature and depth of the Landlords’ deception when they made the payment in July, 2017.
30. The Applicants relied upon the Divisional Court’s analysis in Metropolitan Toronto Housing Authority v. Nutakor, in which the Court found that a party’s act of misrepresentation precluded the application of res judicata.[7] Specifically, in that case, the tenant argued that the landlord’s claim for rent arrears based upon misrepresentation of income should be barred as the landlord should have claimed all of the arrears in an earlier application. The Court held that at the time of the previous application, the landlord did not know the full extent of the arrears resulting from the misrepresentation and as a result, res judicata did not apply.
31. However, on the present facts, I find that the Applicants have conflated the Landlords’ deception regarding the existence of the multiple corporations in July, 2017 when they signed the tenancy agreement with the multiplicity of parties that was entirely discoverable before they filed the first T1 Application. While the Applicants were unrepresented at the hearing for SWT-06803-17, they had representation for the hearing of SWT-15689-18.
32. I see no reason, given the deterioration of trust between the parties by that point, that the Applicants’ Legal Representatives should not have exercised due diligence as suggested by the Landlords’ Legal Representative to confirm that they had named all appropriate respondents before filing the first T1 Application. Although they stated that they saw no necessity to name M.Z. or S.M. as respondents in application SWT-15689-18 since at the time, they had no reason to expect misrepresentation, this view seems incongruous with the facts of the earlier application, SWT-06803-17, in which the Applicants alleged significant dishonest conduct by the Landlords. As a result, I find that Nukator is distinguishable from the present facts.
Disposition
33. On the balance of probabilities, I find that the Landlords have established the necessary requirements for res judicata, specifically the doctrine of issue estoppel. However, this finding does not fully dispose of the matter.
34. The Courts have consistently maintained that although res judicata prevents the re-litigation of matters, it is subject to an overriding discretion to ensure justice in each case. As the Supreme Court noted in Danyluk v. Ainsworth Technologies Inc., the Court characterized issue estoppel as a doctrine of public policy that is designed to advance the interests of justice.[8] Following this principle, in Wamboldt v. Wellman, the Ontario Divisional Court set out a mandatory analysis, stating that issue estoppel “calls for a judicial balance between finality, fairness, efficiency and the authority of judicial decisions.”[9] As Dr. L noted, the doctrine should not be applied mechanically and there is always discretion to not apply it where the litigant’s claim to justice outweighs finality concerns.[10] The Court listed a number of relevant factors to consider with respect to this issue in Danyluk, but this list is open and the cumulative effect of the factors should be considered:
The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.[11]
35. In Penner v. Niagara (Regional Police Services Board), the Supreme Court affirmed the relevance of the Danyluk decision.[12] In holding that issue estoppel did not apply to a police disciplinary hearing, the Court noted the following regarding the potential application of issue estoppel:
The flexible approach to issue estoppel provides the court with the discretion to refuse to apply issue estoppel if it will work an injustice, even where the preconditions for its application have been met.
It holds that a party may not relitigate an issue that was finally decided in prior judicial proceedings between the same parties or those who stand in their place. However, even if these elements are present, the court retains discretion to not apply issue estoppel when its application would work an injustice.[13]
36. To that end, I find that the doctrine of res judicata is also not meant to be applied in order to frustrate the intent of the original order.
37. Ultimately, I find that the Applicants are entitled to the remedy ordered by SWT-15689-18. That order has not been successfully reviewed or appealed. Similarly, neither review order SWT-15689-18-RV nor the denial of the Landlords’ second review request by the endorsement dated July 19, 2018 have been appealed to the Divisional Court.
38. As the Landlord’s Legal Representative rightly noted, the Applicants received the remedy that they requested in order SWT-15689-18 and to conduct another hearing over same issues for the same result would not only represent an inefficient use of Board resources, but also risks unjust enrichment, with two orders providing the same remedy. The only dilemma is that order SWT-15689-18 did not name all of the correct respondents.
39. This problem may be corrected through a procedural avenue that prevents both the frustration of the prior order and the danger of unjust enrichment through duplication of remedies. Section 21.1 of the Statutory Powers Procedure Act, 1990 (‘S.P.P.A.’) allows the Board to “at any time correct a typographical error, error of calculation or similar error made in its decision or order. I find that the omission of the other Landlords, both corporate and individual, amounts to such an error. This discretion is subject to Rule 28. Rule 28.2 provides that the Board “may, upon its own initiative, amend an order or decision in order to correct a clerical error.” Subsection 187(2) of the Act also states that “the Board may add or remove parties as the Board considers appropriate.”
40. Rule 28.5 provides as follows:
28.5 Subject to Rule 28.6, a request to amend an order or other decision will be considered by the LTB Member or Hearing Officer who issued the order or decision that is the subject of the request.
41. However, as I issued the original order, SWT-06803-17, as well as SWT-15689-18_RV and heard all of the evidence and the full submissions on the present contested application, I find that I am in the best position to make findings with respect to the impact of the omitted respondents on the prior order as this issue pertains to the present application. As a result, pursuant to section 4(2) of the S.P.P.A., I find it appropriate in the present circumstances to waive Rule 28.5 and amend order SWT-15689-17 to add the omitted parties."
13)
"Position of the Landlord
5. JS contends that the Tenant’s application giving rise to the Lang order is barred by the doctrine of res judicata.
6. In the Lang order, the Tenant sought, and was awarded a rent abatement for rent which Member Lang found was illegally collected for the period from March 1, 2014 to March 31, 2016.
7. JS continued that in this application, the Tenant seeks an abatement of rent for the period from December 1998 to August 2, 2011 during which he was illegally charged GST/HST.
8. In the Landlord’s position, as of the date of hearing leading to the Lang order, the Tenant knew that this was a residential tenancy for which he was being charged HST. He was in a position to advance a claim for abatement of money collected by the Landlord for HST at the time of his first application leading to the Lang order and failed to do so.
9. In the Landlord’s position, the Tenant should have advanced all of his claims in his first application leading to the Lang order, and now is estopped from doing so by the doctrine of res judicata.
Position of the Tenant
10. DM disputed that this application is barred, saying, among other things, it would be patently unfair and inappropriate to dismiss it on the doctrine of res judicata.
11. DM noted that the period claimed in this application is not the same time period, and not the same issue which was before Member Lang.
12. DM described that this is this application is the first time that this historical illegal rent has been brought to the Board and this aspect was not heard and decided in the Lang order.
13. DM referred to s.202 of the Residential Tenancies Act, 2006 (“the Act”) which gives me the power to make findings concerning the real substance of all transactions and activities relevant to any facts before me, notwithstanding the outward form of the transaction.
14. He also noted that the Court of Appeal’s decision in Price v. Turnbull Grove did not place any time limitation on the collection of void rent charges.
Analysis
15. I believe this application is barred by the doctrine of cause of action estoppel.
16. Cause of action estoppel precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings.
17. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):
In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a 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 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, in which the parties, exercising reasonable diligence, might have brought forward at the time.
18. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:
i) there must be a final decision of a court of competent jurisdiction in the prior action;
ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;
iii) the cause of action in the prior action must not be separate and distinct;
iv) 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.
19. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court/tribunal.
20. In this application, the Tenant seeks to recover rent he said was illegally collected by the Landlord, by requiring payment of GST/HST over the period from December 1998 to August 2, 2011.
21. In the application leading to the Lang order, the Tenant sought and recovered illegally collected rent for the period from the later period of March 1, 2014 to March 31, 2016.
22. Applying the criteria for cause of actions estoppel to this case yields the following: i) there is a final decision (the Lang order); ii) the parties to the application are the same ones that were involved in the previous application; iii) the cause of action in the previous application was not separate and distinct – in both applications the Tenant seeks rent said to have been illegally collected by the Landlord; iv) the basis of this application could have been argued/raised in the previous application with the exercise of reasonable diligence.
23. On this last aspect, as of the hearing leading to the Lang order on March 2, 2016, it was apparent that the Tenant was a residential tenant and he was being charged HST by the Landlord (as referenced in paragraph 2 of the Lang order). In this application, filed April 12, 2018, the Tenant seeks to recover the HST collected by the Landlord. In my view, the Tenant, with the exercise of reasonable diligence, and with the benefit of legal advice at that time (with DM attending the March 2, 2016 hearing leading to the Lang order), could have advanced his claim for HST against the Landlord in the first proceeding but he failed to do so.
24. Therefore, he cannot claim here what he could have at the first hearing before Member Lang if he had exercised reasonable diligence.
25. As such, the Tenant’s cause of action in this application is barred by the doctrine of cause of action estoppel. It will be dismissed."
14)
"When the Landlord’s case was complete, the Tenant was given the opportunity to give evidence in respect of the Landlord’s application. The Tenant gave no evidence but demanded once again that the Landlord’s application be dismissed, asserting that I had no choice but to dismiss the Landlord’s application, and repeating that I had no jurisdiction to do anything except dismiss the Landlord’s application, as the entire matter was res judicata, because the Crown had withdrawn criminal charges against the Tenant.
[...]
Res Judicata
56. The doctrine of res judicata (or issue estoppel) is intended to bring finality to litigation, so that parties may not re-litigate matters that have already been decided by a court of competent jurisdiction.
57. The key principles governing the doctrine of res judicata as decided by the courts of Canada are:
a) The question to be decided in the second proceeding must be the same question that has been decided in the first proceeding.
b) The question decided in the first proceeding must be fundamental to the decision in the first proceeding, not collateral to the decision.
c) The same parties, and their privies, cannot relitigate the same question in a second proceeding.
d) The decision in the first proceeding must be a final decision on the question.
e) The decision in the first proceeding must be a judicial decision on the question
f) The decision-making forum in the first proceeding must have the jurisdiction to decide the question.
58. It was the Tenant’s position at the hearing, that because the criminal charges related to the allegations of assault, threatening and injury to an animal had been disposed of, the Board was estopped, by the doctrine of res judicata, from considering those issues in the Landlord’s application to terminate the tenancy.
59. While the criminal charges were disposed of on January 21, 2013 by the Crown withdrawing the charges, there was no judicial decision on the question of whether or not the Tenant had committed the illegal acts with which he was charged.
60. Consequently one of the basic requirements for establishing res judicata has not been met because there has been no judicial decision on the question by a court of competent jurisdiction.
61. The Tenant’s plea of res judicata must therefore fail."
15)
"Res Judicata
8. Half way through the hearing it became apparent that this same issue was raised in an N5 Notice for damage and substantial interference with reasonable enjoyment dated December 3, 2005. This notice was filed in support of an L2 application which was heard on February 8, 2006 and an order was issued on March 6, 2006. (SOL-64587). The fact that the same issue formed part of a prior N5 Notice which was considered in a prior order gave rise to the issue of res judicata. The parties requested the opportunity to file written post hearing submissions on this issue and the request was granted. However, the full hearing proceeded. After the hearing, I received written submissions from both parties on the issue of res judicata and they were reviewed prior to the issuance of this order.
9. An issue is res judicata if it has already been settled by a prior order. It stops a party from being able to seek another order on the same issue. In effect, it prevents a “second kick at the can”. Three elements must be present for res judicata to apply. First, there must be an earlier decision on the issue. Second, that decision must be final in that it has not been reviewed or appealed. Thirdly, the same parties must be involved.
10. In this case it is clear that the same parties were involved in the prior application and in this application. It is also clear that order SOL-64587 is a final decision since neither a review nor an appeal was filed. However, the Landlord claims that there is not an earlier decision on the issue as to whether the topsoil caused damage.
[...]
14. Although the issue of the topsoil was not directly addressed in order SOL-64587, the L2 application was dismissed in its entirety. The notice forms the basis of the application and all of the issues raised in the notice form part of the application. None of the issues in the notice were withdraw by the Landlord at the first hearing. The Landlord would get the benefit of a “second kick at the can” if he were able to proceed with the current application just because his evidence is better now than it was then. Therefore, I am satisfied that the issue of damage in this application is res judicata."
16)
"9. The Tenant raised the same mould issue that was raised under Order CET-42001-14 & CET-42939-14, issued October 8, 2014. The principal of res judicata prevents me from hearing and deciding the issue again. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. In the previous order, the Member decided that “By September 23rd, the affected drywall was cut out and replaced”, which remedied the mould issue. The Member wrote “Since the Tenant stated City of Mississauga has already issued an order relating to the mould issue, the Tenant can follow up with the City if there is no-compliance with the City order.”
10. The Tenant testified that he spoke to the City Property Standards Officer and was told that the City is not able to make contact with the Landlord. The Landlord testified that she is not aware of the City order. The mould issue is in the City’s jurisdiction to resolve.
11. The Tenant requested another rent abatement until the Landlord fully complies with the City order. I am not able to issue a remedy on an issue that has already been decided by the Board.
12. The Tenant testified that there is an issue with sewage backup. He said that this is related to the mold issue. Draining and plumbing issues were addressed in the City order. In his testimony, he did not provide details relating to specific occurrences such as dates, or how the parties addressed the issue after the City order was issued. Therefore, I find that the Tenant’s testimony did not demonstrate that there is a current issue with sewage back up.
13. The Tenant alleged he noticed a water leak on the ceiling in the common area of the basement on December 18, 2014. The Tenant presented black and white photographs of the ceiling. He testified that he ran out of money to provide colour photographs like his other photographs presented as evidence. He testified that discoloration appears beside the light fixture. In my view, the photographs do not depict discoloration. The Landlord testified that she had another person come and inspect the alleged water leak in January 2014 and this person did not find a leak. Therefore, I prefer the Landlord’s evidence that the basement ceiling is not leaking.
14. The Tenant provided evidence with respect to illegal entries that occurred in August 2014. This was an issue already addressed under Order CET-42001-14 & CET-42939-14, issued October 8, 2014. The principal (sic) of res judicata prevents me from hearing and deciding the issue again. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court."
17)
"10. The preliminary issue raised by the Landlords can be characterized as issue estoppel and cause of action estoppel, which are branches of res judicata.
Issue estoppel
11. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. The principles behind the doctrine of issue estoppel are that litigation should have finality (it should not be allowed to continue indefinitely), inconsistent results should be avoided, judicial resources should not be wasted on duplicative claims, and parties should not be permitted to harass one another with duplicative claims.
12. The criteria for issue estoppel, as per Richard A. Feldman in his Residential Tenancies, 9th ed. (Toronto: Carswell, 2009) at p.90, are:
i) the same question (issue) currently being advanced has already been decided in an earlier proceeding;
ii) that earlier decision was final; and
iii) the parties (or their privies) are the same now as in that earlier proceeding.
13. The following issues raised in the Tenant’s application were adjudicated by order TSL-73114-16:
- illegal entry on May 15, 2016;
- issue regarding the Landlord’s treatment of the March 2016 rent cheque; and
- withholding heat in October 2015 and in May 2016.
14. Applying these criteria to this case: the issues listed at paragraph 13 above were adjudicated in a previous proceeding, order TSL-73114-16 is a final order, and the parties are the same in this proceeding as in the previous proceeding. I therefore find that these issues are barred by the doctrine of issue estoppel and so this part of the Tenant’s application must be dismissed.
15. The Tenant submitted that because she has commenced an appeal of order TSL-73114-16, it is not a final decision and res judicata therefore does not apply. The fact that the order is under appeal does not change the fact that order TSL-73114-16 is a final order. It is the final order of the Board on these issues. Res judicata applies here.
Cause of action estoppel
16. Cause of action estoppel precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings.
17. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the seminal case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):
In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a 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 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, in which the parties, exercising reasonable diligence, might have brought forward at the time.
18. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:
i) there must be a final decision of a court of competent jurisdiction in the prior action;
ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;
iii) the cause of action in the prior action must not be separate and distinct;
iv) 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.
19. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before the court or tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court.
20. The Tenant raised a number of issues of harassment and substantial interference by the Landlord in her application. Some of these issues had not been adjudicated in order TSL-73114-16. At the hearing the Tenant testified that at the hearing which gave rise to order TSL-73114-16, held on June 7, 2016, she was not permitted to raise these issues. If this is so, then the doctrine of cause of action estoppel might not apply, because if the Tenant was not permitted to raise the issues in the prior proceeding, then it cannot be said that these issues “could have been argued” in the prior proceeding.
21. I listened to the hearing recording for the hearing held on June 7, 2016. At that hearing the Tenant raised a great number of issues, which were all heard by the Member. Toward the end of the Tenant’s evidence in chief, the Tenant asked the Member: “Can I present any more?” and the Member’s response was: “It’s up to you.” At that point the Tenant indicated that she was finished and cross-examination of the Tenant began. The Member did not, at any time in the hearing, tell the Tenant that he would not hear any of her issues. Under these circumstances, I am satisfied that the Tenant had full opportunity to raise any issues she wished to raise at the hearing on June 7, 2016.
22. Applying the criteria for cause of action estoppel to this case:
- there is a final decision (order TSL-73114-16);
- the parties to this application are the same parties as were involved in the previous application;
- the issues sought to be raised in this application are not separate and distinct from those raised in the previous application (they are all of the same nature: harassment or substantial interference by the Landlord); and
- the issues sought to be raised in this application were raised in the previous application or could have been raised in the previous application.
23. Accordingly, any remaining issues raised by the Tenant in her application that pre-date the hearing of June 7, 2016 are barred by the doctrine of cause of action estoppel and so this part of the Tenant’s application must also be dismissed."
18)
"Res judicata (previously decided)
4. The Landlord argued that this issue was already determined by the Board in Order CET-65368-17, issued on June 29, 2017. The Tenant’s request to review that order was denied in Order CET-65368-17-RV, issued on July 28, 2017.
5. I have considered whether this application is subject to the doctrine of res judicata, meaning the same matter was already decided and it would be abuse of process to allow the Tenant to pursue this second application. In order for res judicata to apply, there must be a previous final Order involving the same parties and the same claim.
6. In the previous application the Tenant claimed substantial interference because the Landlord served her with the N13 notice and she was intending to live in the unit for a longer term. The Tenant wanted the Landlord to pay her moving expenses. The Member found that there was no substantial interference because the Landlords’ N13 notice was valid and served in accordance with the Act and the Landlord has no obligation to provide the Tenant with any compensation in excess of the three month’s rent as the Tenant was seeking. The Member did not award the Tenant the compensation equal to three month’s rent in Order CET-65368-17 as the Tenant had not filed the correct application for that claim.
7. In this application, the Tenant is seeking an order requiring the Tenant Landlord to pay her the required compensation based on the provisions of the Act underlying the N13 notice. As the prior order did not address a claim made by the Tenant for compensation equal to three month’s rent, I do not find that res judicata applies here and I can consider this application."
19)
"4. As I explained to the Tenant during the hearing, the legal principle of res judicata applies to the issue of mould in the unit as at April 19, 2017 and the Tenant is stopped, by the prior application, or in her case request to re-open, that she brought to the Board, and which request was dismissed for the reasons outlined by the presiding Member in TST-67279-15, issued on April 26, 2017, from proceeding to present that same issue again.
5. Here the Tenant sought to produce the very same photographs, which she failed to produce during the hearing on April 19, 2017, because, as she stated, she did not have an opportunity to develop before the previous hearing, and which photographs the presiding Member found to be “easily available corroborative evidence.”
6. In applying the maxim of res judicata, the overriding consideration is the avoidance of duplicative litigation. Finality to litigation is the prime objective. In my opinion, given the evidence before me, the doctrine of “cause of action estoppel” is triggered in this case.
7. In Erschbamer v. Wallster, 2013 BCCA 76, the Court of Appeal for British Columbia provided a useful summary of the essential nature of each of the three doctrines of res judicata as follows:
“The general principles of the doctrine of res judicata were reviewed by this Court relatively recently in Cliffs Over Maple Bay. The doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters.”
8. The Court confirmed that the separate doctrine of cause of action estoppel is triggered where:
• there is a final decision of a court of competent jurisdiction in the prior action;
• the parties to the subsequent litigation were parties to, or are in privity with the parties to, the prior action;
• the cause of action in the prior action is not separate and distinct; and
• 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.
9. In this case, the Tenant’s request to re-open her application in Board file TST-67279-15 was denied for the reasons stated above and, in denying the Tenant’s request to re-open Board decision is final. Further the parties in TST-67279-15 are the same as the parties in the within application and, as stated, the issue raised by the Tenant here is identical to the issue raised in the request to re-open. Lastly, had the Tenant exercised “reasonable diligence” she would have presented the photographs of the alleged presence of mould in the balcony during the hearing of her request to re-open on April 19, 2017, which evidence the presiding Member found to be “easily available corroborative evidence.”
10. For the reasons stated, the Tenant’s application will be dismissed."
20)
"1. At the October 2018 hearing, the Tenant’s friend, EK raised the issue that the Landlord’s application should be dismissed as res judicata. EK submitted that a previous application by the Landlord was dismissed by the Board; and the Tenant has filed an application with the Ontario Human Rights Tribunal. EK says that there cannot be two courts hearing the same matter.
2. The Landlord submitted that the application before the Board is not res judicata or issue estoppel. The application before the Board addresses the state of the Tenant’s unit and substantial interference with reasonable enjoyment; and these matters were not previously before the Board.
3. As I stated at the hearing, I find that the matter before me has not been previously adjudicated by the Board. Therefore, I am not of the view that the principle of res judicata applies to the application before me."
21)
"9. At the hearing I refused to hear the Tenants’ submissions and evidence with respect to these issues because they are barred by the principle of res judicata.
10. The Tenants’ first two issues were adjudicated in a previous proceeding by order TST-78343-16/TST-78380-16. The Tenants are estopped from litigating these issues as per the doctrine of issue estoppel, which is a branch of res judicata. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. The principles behind the doctrine of issue estoppel are that litigation should have finality (it should not be allowed to continue indefinitely), inconsistent results should be avoided, judicial resources should not be wasted on duplicative claims, and parties should not be permitted to harass one another with duplicative claims.
11. The criteria for issue estoppel, as per Richard A. Feldman in his Residential Tenancies, 9th ed. (Toronto: Carswell, 2009) at p.90, are:
i) the same question (issue) currently being advanced has already been decided in an earlier proceeding;
ii) that earlier decision was final; and
iii) the parties (or their privies) are the same now as in that earlier proceeding.
12. All of these criteria are met here.
13. The second two issues (illegal entry and eviction notice) arose on September 29, 2016 and September 1, 2016, respectively. The Tenants filed their applications that gave rise to order TST-78343-16/TST-78380-16 on October 11, 2016. This means these issues had arisen before the Tenants filed their applications that gave rise to order TST-78343-16/TST-78380-16 and could have been raised in these applications but were not. The Tenants are estopped from litigating these issues as per the doctrine of cause of action estoppel, which is another branch of res judicata. Cause of action estoppel precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings.
14. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the seminal case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):
In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a 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 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, in which the parties, exercising reasonable diligence, might have brought forward at the time.
15. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before the court or tribunal on the previous proceeding, but also issues that could have been decided had the party exercised reasonable diligence.
16. One of the previous proceedings was a T2 application. The Tenants could have raised the issues of illegal entry and harassment by eviction notice in the T2 application but did not.
17. As a result of the foregoing, I did not accept the Tenants’ evidence or submissions with respect to their issues raised under s.82 of the Act."
22)
"Illegal entry
13. At the hearing the Landlord’s legal representatives submitted that the illegal entry allegation should be dismissed in accordance with the principle of res judicata.
14. The Tenant filed application TST-67983-15 on November 3, 2015. In that application the Tenant alleged that the Landlord illegally entered the rental unit on November 6, 2014. At the time that the Tenant filed application TST-67983-15, he was aware of the alleged illegal entry of June 8, 2015, which is the allegation in the current application. At the hearing, I explained that it appears that the illegal entry allegation in this application would be barred by the doctrine of cause of action estoppel, which is a branch of res judicata. Cause of action estoppel precludes a litigant from asserting a claim or a defence that he or she had an opportunity of asserting and should have asserted in past proceedings.
15. At the hearing, when the Tenant was asked for his submissions on whether the doctrine of cause of action estoppel applies to the illegal entry allegation in this application, the Tenant requested that this allegation be withdrawn. I granted the Tenant’s request. This allegation is therefore withdrawn, with prejudice, because the Tenant requested that this part of the application be withdrawn after hearing about the cause of action estoppel issue. In other words, the Tenant’s request to withdraw this part of the application is a concession that this part of the application is barred by cause of action estoppel.
Rent receipts
16. At the hearing the Landlord’s legal representatives submitted that this allegation should also be dismissed in accordance with the principle of res judicata.
17. Order TST-64205-15, issued on June 16, 2016, made a finding that a rent receipt issued by the Landlord for the Tenant’s rent payment for June 2015 substantially complied with the requirements set out in the Act and the Regulation. Order TST-64205-15 further found that the delay of several months in issuing this receipt did not constitute substantial interference with the Tenant’s reasonable enjoyment of the premises.
18. At the hearing the Tenant submitted that his allegations in this application, with respect to the rent receipts, are essentially the same as the allegations he raised at the hearing of TST-64205-15. The Tenant submitted that the rent receipts that are the subject of the current application were issued for different months than the rent receipt at issue in application TST-64205-15 and so this issue has not been decided with respect to the newer rent receipts.
19. At the hearing I explained to the Tenant that it appears that the rent receipt allegation in this application may be barred by the doctrines of issue estoppel and cause of action estoppel.
20. Issue estoppel is a branch of res judicata. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. It appears that the essence of the rent receipt allegation in the current application was adjudicated in order TST-64205-15.
21. It appears that cause of action estoppel also applies here, to the extent that the Tenant’s allegation in the current application is with respect to rent receipts that are different from the one at issue in application TST-64205-15. The Tenant should have raised the issue with respect to the rent receipts provided after the June 2016 receipt as an amendment to application TST-64205-15. The hearing that gave rise to order TST-64205-15 was held in March 2016 and in May 2016. At this time the Tenant was aware of any issues he had with rent receipts issued for the months of July 2015 to March 2016.
22. When the Tenant was asked for his submissions on whether the doctrines of cause of action estoppel and issue estoppel apply to the allegation about rent receipts in this application, the Tenant requested that this allegation be withdrawn. I granted the Tenant’s request. This allegation is therefore withdrawn, with prejudice, because the Tenant requested that this part of the application be withdrawn after hearing about the cause of action estoppel and issue estoppel issues. In other words, the Tenant’s request to withdraw this part of the application is a concession that this part of the application is barred by cause of action estoppel and issue estoppel."
23)
"Res Judicata and Cause of Action Estoppel
1. At the outset of the hearing, the Landlords’ legal representative submitted that the Tenants’ application was barred by the doctrine of res judicata. In particular, the Landlord’s legal representative stated that the issue raised in this application was previously before the Board and was dismissed by Order TST-63223-15, issued on August 21, 2015.
2. Tenants’ counsel submitted that the instant application is a “fresh application” as the Tenants’ previous application was not adjudicated on its merits but, rather, dismissed as “premature”.
3. The preliminary issue raised by the Landlords is cause of action estoppel, which is a branch of res judicata, and precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) had an opportunity of asserting and should have asserted in past proceedings.
4. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the seminal case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):
In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a 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 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, in which the parties, exercising reasonable diligence, might have brought forward at the time.
5. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:
i) there must be a final decision of a court of competent jurisdiction in the prior action;
ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;
iii) the cause of action in the prior action must not be separate and distinct;
iv) 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.
6. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before the court or tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court.
7. In my view, not all of these preconditions required for the doctrine to apply are present here. More specifically, the cause of action and the subsequent action could not have been argued by the Tenants during the hearing for application TST-63223-15 even if they had exercised reasonable diligence.
8. In Order TST-63223-15, issued on August 21, 2015, Member Pilon states, in part, as follows:
“The argument before me in this application was that the application was premature because the work is not yet complete. In fact it appears acknowledged that the Landlord is in the midst of renovating the rental unit, although the Tenants now believe the Landlord’s intention is to create a luxury unit for himself…In either event, where the renovations are either incomplete or ongoing, they do not fit the precondition in the statute that the Landlord “did not…renovate the rental unit within a reasonable time.” Therefore, the application should be dismissed.”
9. Could the Tenants have raised the issues before me in the previous case? In my opinion they could not have and Member Pilon made that abundantly clear by finding that, as the renovations in the unit were either incomplete or ongoing, the Tenants’ application was premature and should be dismissed.
10. Further, there is also a discretionary element to res judicata. The Supreme Court of Canada has held that where a party establishes the pre-conditions for an issue estoppel, a trier of fact must still determine whether, as a matter of discretion, issue estoppel ought to be applied, and the court or tribunal should stand back and, taking into account the entirety of the circumstances, the trier of fact should consider whether an estoppel in the particular case would amount to an injustice: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII); Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII).
11. In my view, given the circumstances of the immediate case, it offends the principles of fundamental justice that the Tenants’ statutory claim should be barred from proceeding simply because they filed the previous application prematurely."
24)
"7. As a result of prior Board order CEL-19848-12, issued on February 6, 2012, a portion of the Landlord’s current damage claim is res judicata (already decided). In particular, the claim regarding scratches to newly painted walls is res judicata.
8. The current damage claim regarding the hole in the wall by the steps; scratches/scuffs on the kitchen floor; and the broken bedroom window were not previously claimed or addressed in order CEL-19848-12. As a result, they are not res judicata."
25)
"14. The Tenant submitted that the Board could not consider the Landlord’s application because of res judicata. It was the Tenant’s position that his failure to pay the rent from December, 2012 to June, 2013 was the subject of a previous rent arrears application for which the Landlord had obtained an order and as such the Landlord is estopped from seeking to terminate his tenancy on the same grounds.
15. I would not agree. The Tenant’s position assumes that the grounds cited for the previous application is the same thing as the issue in the previous application. For the doctrines of res judicata or some other form of issue estoppel to apply the same issue must have been litigated. In the Landlord’s application that was filed in 2013, the issue was whether or not the Tenant was in arrears of rent. The issue in this application is whether or not the Tenant has been persistently late in paying his rent. Therefore, I do not believe the doctrine of issue estoppel or res judicata apply to bar the Landlord from making this application. The Tenant’s request that the N8 notice be found to be defective is denied."
26)
"6. After I granted the Landlord’s review request of order TST-95115-18, the Landlord argued that the legal doctrine of res judicata applies to prevent the Board from considering afresh the Tenant’s bad faith claim as “There was one N13, and the Tenant vacated the unit once, May 1, 2017. All issues arising out of those circumstances were either before the Board in TST-86477-17 or could have been before the Board when that application was determined”.
7. I reject this argument. There is an overlap in some of the fact circumstances between the T1 application considered in TST-86477-17-RV-2 and the applications considered in TST-95115-18. However, the legal, substantive and remedial considerations are distinct between the applications, as established by the provisions of the Act governing each issue. In other words, the question to be resolved in the T1 application is not the same question to be resolved in the subsequent applications. By way of analogy, while an application for arrears of rent and an application related to late payment of rent may arise out of a common history of breached rent payment obligations, that common history, alone, does not oust the Board’s jurisdiction to consider, say, the late payment claim when the arrears claim has already been resolved.
8. Moreover, the doctrine of res judicata does not bar consideration of the Tenant’s request for interest on the last month’s rent deposit as this issue was not considered on its merits in order TST-86477-17-RV-2."
27)
"Res judicata
2. At the hearing on September 7, 2018 the Tenant raised an objection that the Landlord’s application cannot proceed because the issues in the application are res judicata. The Landlord had filed an application previously, there was a hearing, and there was an order that resulted from the hearing: TSL-90323-17, issued January 18, 2019. From that order it is clear that the application raised the issue of the Tenant refusing to allow entry to the unit for pest control. This is an issue in the present application as well. However, order TSL-90323-17 dismissed the Landlord’s application without prejudice after making no determinations as to whether the Tenant had refused entry to the unit. The matter was dismissed because of problems with the notice of termination.
3. Because the issue of refusing entry to the unit for pest control was not decided by a previous order, this issue is not res judicata. This matter can proceed."
28)
"8. After hearing the parties’ submissions on this preliminary issue, the Member made a finding that this was not res judicata as the issues in the application before the Member were not the same as the issue in the application heard on May 16, 2014. As such, the Tenant’s rights were not extinguished on the application before the Member. This ruling is arguably related to the ex-parte conversation the Member had with the Landlords when the Tenant was not present. The difficulty with the Tenant’s request for review is that the Member’s ruling was in the Tenant’s favour so it cannot be said the Member was actually biased against the Tenant or that the alleged breach of procedural fairness had a material impact on the result.
9. At the hearing before the Member, the Tenant raised his own preliminary issue and wanted to reduce his claim to two areas and reduce the amount of the abatement. The Member told the Tenant to focus on what the Tenant wanted to raise during the hearing. In other words, it was up to the Tenant on how he wanted to proceed with his application and what evidence he wanted to present. I do not see how not knowing about the Member’s conversation with the Landlords caused the Tenant to reduce his claim. If anything, the Member’s finding that the application before him was not res judicata meant that the Tenant could proceed with all of the issues in the Tenant’s application. It was the Tenant’s choice to limit the issues at the hearing."
Other LTB rulings:
An interesting new case on res judicata and adverse possession:
28)
"The 2017 Action by Gerald Anthony
[13] In 2017, the Applicant commenced an action against the McKenzies, who at the time were the owners of 130 St. John’s (the “2017 Action”).
[14] In the 2017 Action, the Applicant sought a declaration that he was the owner, by adverse possession, of an approximately 6-acre parcel of land, located on the northeast portion of 130 St. John’s (the “Disputed Lands”), in the alternative, a declaration that he held an easement over the Disputed Lands, and in the further alternative, leave to register a certificate of pending litigation (“CPL”) against the Disputed Lands/130 St. John’s at-large.
[15] A summary judgment motion was heard by Justice Sutherland with respect to the 2017 Action.
[16] Justice Sutherland found that the Applicant was required to show, on a balance of probabilities, that the adverse possession, or easement, had matured and was established from the time that title to 130 St. John’s was converted to Land Titles Conversion Qualified – being September 27, 1999. In other words, the claimants’ open and exclusive use to the Disputed Lands would have to be established by evidence from the 10 years preceding September 27, 1999 (the conversion to Land Titles Conversion Qualified).
[17] Ultimately, Justice Sutherland concluded that the Applicant failed to establish that there was a genuine issue for trial regarding the claim for adverse possession as he found that the Fultons’ evidence failed to show an intention to exclude the McKenzies, being the predecessor owner(s) of the Disputed Lands.
[18] On the issue of abandonment, and the Applicant’s claim for adverse possession, Justice Sutherland explained at paras. 35-37:
Concerning the abandonment submission, the evidence, which is uncontroverted, is that the defendants had the Lands dedicated as wilderness land with the assistance of the Canadian Wildlife Service. The Lands were designated as Provincially Significant Wetlands in the 1970’s known as the McKenzie Wetlands. The purpose of the Lands is that of wilderness for people to walk upon and explore and for wildlife to occupy undisturbed and undeveloped by humans. The purpose and designation has not changed as of the date of this hearing. The defendants from their evidence indicate that they and their family did maintain the dam, pond and marsh water level system over the decades. The fact the defendants did not use the Lands personally or regularly, in the circumstances of this case, is immaterial. The Lands are conservation wetlands. They remain conservation wetlands. The Lands are still being used for that purpose, for wildlife to occupy. I do not agree that the defendants have not abandoned the Lands, as suggested by the plaintiff.
Eric Fulton in his evidence indicates that neither he nor his wife intended to exclude the Lands from the defendants or their parents. This statement is supported by the fact that the Fultons applied for conversion to Land Title Absolute in 1991. Notice was provided.
[19] Justice Sutherland also rejected the Applicant’s claim for an easement, and having rejected both of those claims, deemed it unnecessary to deal with the issue of the CPL. The Applicant’s claim was dismissed.
[20] The Applicant’s appeal of Justice Sutherland’s decision was unanimously dismissed by the Ontario Court of Appeal.
[21] On July 25, 2019, the Applicant’s application for leave to appeal the ONCA Appeal was then dismissed by the Supreme Court of Canada.
Analysis
[22] In this application, the Applicant seeks a declaration that he is the owner, by adverse possession, of a reduced portion of the Disputed Lands from the 2017 Action as well as associated relief (removal of the fence) which is contingent on his claims that he owns the Disputed Lands by adverse possession (removal of the fence).
[23] The Respondent takes the position that the issue is res judicata and the Applicant is simply trying to re-litigate the exact same issue that was raised in the 2017 Action. To permit the Applicant to do so is an abuse of the Court’s process.
[24] The doctrine of res judicata is premised on public policy considerations which dictate that there should be a reasonable end to litigation, so as to prevent hardship to individuals from having to respond to the same issues repeatedly: Grandview v. Doering, 1975 CanLII 16 (SCC); Angle v. M.N.R., 1974 CanLII 168 (SCC), at p. 254.
[25] In deciding whether res judicata applies, the courts can look at pleadings in the other matter as well as the reasons for the other judgment to satisfy that the cause of action was actually decided upon.: Maynard v. Maynard, 1950 CanLII 3 (SCC), at p. 354: Norrad v. MacKay, 2005 NBQB 307, at para. 14.
[26] The Applicant argues that the issues raised on this application were left open by Sutherland J. in his decision. More specifically, the Applicant points to paragraphs 39 and 40 where Sutherland J. stated:
Moreover, even if I found that the plaintiff did have an adverse possession claim, the Lands requested by the plaintiff does not support the evidence provided by the plaintiff. There is no evidence provided by the plaintiff that the entire 6 acres of the Lands have been adversely possessed by any of the owners of 202. At best, the evidence shows a portion of the lands that were mowed by the Fultons, and the Fultons walked the rails on the Lands. It is not the full area of 6 acres, the Lands, requested by the plaintiff.
Therefore, I do not agree with the submissions of the plaintiff that he has met the criteria required in law to have a claim of adverse possession of the Lands. [Emphasis added.]
[27] According to the Applicant, the above paragraphs of Sutherland J.’s decision leave open a claim of adverse possession in relation to the smaller area of land which is the subject of this application.
[28] I disagree. In my view, these paragraphs merely emphasize the overbreadth of the Applicant’s original claim. They do not open the door to a subsequent claim in relation to a smaller piece of the Disputed Lands.
[29] In reviewing the decision, the original claim failed specifically because the Fultons’ evidence made clear that there was never any intention to exclude the McKenzies from any portion of the Disputed Lands. This included the smaller portion sought to be claimed in the current application (the Subject Lands).
[30] The Ontario Court of Appeal also specifically referenced this portion of the Disputed Lands on appeal and noted that “[r]egardless of the limited use the Fultons may have made of a small portion of the disputed lands in the immediate vicinity of their home, the evidence was overwhelming that they had no intention to use the land to the exclusion of its true owner”.24
[31] In my view, the issues raised in this application have already been determined in the 2017 Action.
[32] The application is dismissed."
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