Date: 20000823
Docket: T-225-00
BETWEEN:
RUBY TRADING S.A.,
Plaintiff,
- and -
MYLES PARSONS, INTERNATIONAL TRANSPORT
WORKERS FEDERATION, HABIBULA MUSTAFA,
BAYRAM MON, KRASSIMIR STOYKOV
and ANTON LITVICHKOV,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of a motion to strike out the Statement of Claim, for various reasons, or alternatively for a stay of proceedings, an unsuccessful motion.
BACKGROUND
[2] The Plaintiff, the owner of the Ship "Japan Rainbow II", commenced this action claiming breach by crew members of their contract of employment and also claiming against the International Transport Worker"s Federation and an organizer from that union for interference with contractual relations. The Plaintiff then used the action as a vehicle by which to obtain an injunction enjoining the Defendant crew members, the union and the union organizer from picketing the ship which picketing had prevented her from carrying a cargo of grain or, indeed, from obtaining a pilot and tugs in order to depart from a grain berth which was needed by other ships.
[3] Associate Chief Justice Lutfy granted the injunction, without reasons, 7 February 2000. Here I would only say that the Federal Court has, from time to time, granted similar injunctions, perhaps on the basis of case law such as that collected in Galano v. S.S. Lowell Thomas Explorer (1978), 80 D.L.R. (3d) 127, in which a motion to strike out the counterclaim of a defendant ship owner, for loss of bookings in a crew"s action for wages, was denied. In any event, and by way of an example, it would be an inequitable, foolish and unworkable system if a crew could arrest a ship in the Federal Court, on a wage claim, yet an owner might not bring an independent claim, by counterclaim, for breach by the crew of a marine contract.
[4] In the present instance the Defendants, who had counsel in attendance on the hearing of the application for the injunction, counsel at that point declining an opportunity for further time to consider the matter, have not only appealed Associate Chief Justice Lutfy"s Order, but have also brought the present motion to strike out the Statement of Claim on the basis of want of jurisdiction.
[5] This question of want of jurisdiction over crew members, in an action, essential for damages for wrongfully delaying a ship, would be an interesting area to explore. However that is not to be, first by reason of the application of the doctrine of res judicata, for the essence of this motion was dealt with by Associate Chief Justice Lutfy and is the subject of an appeal, and second, because a party should be allowed only one opportunity to attack an opponent"s pleadings, being the appeal of the Associate Chief Justice"s Order, and here I refer to the concept to this effect set out in both Grassic v. Calgary Power Co. Ltd. (1948) 1 D.L.R. 103 at 106 (Alta.C.A.) and in Windsurfing International Inc. v. Novaction Sports Inc. (1988) 18 C.P.R. (3d) 230 at 233, a decision of Associate Chief Justice Jerome.
ANALYSIS
[6] My conclusion as to the application of the doctrine of res judicata was not automatic, for there was substantial argument for and against the application of the doctrine. The Plaintiff satisfied the onus of establishing that the doctrine of res judicata should apply and thus succeeded.
[7] Counsel for the Defendants took the position that the appeal of the Associate Chief Justice"s Order was out of an abundance of caution and that, so far as an interlocutory order was concerned, there might, outside of any appeal, be more than one run at the same issue, although counsel conceded that if unsuccessful at the interlocutory stage a party might be barred from rearguing the same point at trial. This concept, of revisiting the same interlocutory issue, is completely counter to the principle upon which Windsurfing International (supra) hinges, however the argument against the hearing of this motion, based on the doctrine of res judicata, is the more interesting approach.
[8] To begin, counsel for the Defendant submitted that I was bound by Mr. Justice Cullen"s decision in Hanson v. Canada (1991), 38 F.T.R. 34. In the trial of that matter, Mr. Justice Cullen pointed out that the doctrine of res judicata did not prevent him from striking out one of the defendants at trial, there relying on Waste Not Wanted Inc. v. Canada (1987), 11 F.T.R. 253, a decision of Mr. Justice Collier.
[9] In Waste Not, Mr. Justice Collier considered the doctrine of res judicata, in the interlocutory context, at pages 259 and 260. He relied primarily on the English law on the area set out in Spencer, Bower and Turner on the Doctrine of Res Judicata, Second Edition, 1969. It appears that he was not referred to a then current case on the issue, Stamper v. Finnigan [1984] 1 C.P.C. (2d) 175; 57 N.B.R. (2d) 411; 148 A.P.R. 411, a decision of the Chief Justice of the New Brunswick Court of Queen"s Bench, in which he referred to a Supreme Court of Canada decision in [1924] S.C.R. 308">Diamond v. Western Realty Co. [1924] S.C.R. 308 and to the then current edition of Sopinka and Lederman on the Law of Evidence in Civil Cases (1974) as a clear indication that the doctrine of res judicata applied to interlocutory matters:
| In the Supreme Court of Canada case of [1924] S.C.R. 308">Diamond v. Western Reality Co., [1924] S.C.R. 308, [1924] 2 D.L.R. 922 (S.C.C.) however, the comments of Duff J. at pp. 315-316 [S.C.R.] are relevant: |
| "It is true that in a sense the decision was interlocutory; that is to say, the proceeding in which it was given was an interlocutory proceeding: but it was nevertheless a final decision in the sense that in the absence of appeal it became binding upon all parties to it." (underlining is mine) |
| I would adopt that view and hold that the rule of estoppel by res judicata applied to decisions on interlocutory applications. |
| I have also found some support for my views in the following comments contained in Sopinka and Lederman, Law of Evidence in Civil Cases (1974), at p. 367: |
| "Although the authorities are in conflict, it would appear that in Canada, a decision in an interlocutory application is binding on the parties at least with respect to other proceedings in the same action." |
| [page 178 of Stamper v. Finnigan] |
A passage identical to that above, quoted from Sopinka and Lederman appears in the 1999 Edition of Sopinka, Lederman and Bryant on Evidence, Butterworths, at page 1073, supported by a multitude of authorities from the level of prothonotary all the way to current Supreme Court of Canada decisions.
[10] All of this is not to say that Mr. Justice Collier came to an incorrect decision in Waste Not: there, at a trial on the merits, he dealt with a clearly provisional order, an open order reserving the opportunity for a revisitation. This may be contrasted with the present instance in which the issue of jurisdiction was raised at an early stage, dealt with by the Associate Chief Justice and appealed.
[11] The Defendants referred to a number of other cases dealing with the concept of res judicata in an interlocutory context, all of which may be clearly distinguished. In Novopharm Ltd. v. Eli Lilly & Co., [1999] 1 F.C. 515, the res judicata argument was based on concurrent proceedings. In Trilea Centres Inc. v. Cumming Cockburn Ltd. (1991) 5 O.R. (3d) 598, the order, upon which res judicata was said to rest, had merely been one granting relief until the trial or other disposition of the action and thus was clearly not a final order. Re: Hansard Spruce Mills Ltd. (1954), 4 D.L.R. 590 (B.C.S.C.N.), dealt not with res judicata but rather with the rule of stare decisis and a decision in another B.C. Supreme Court case. In World Wide Treasure Adventures Inc. v. Trivia Games Inc. (1996) 17 B.C.L.R. (3d) 187 (B.C.C.A.) the consideration involved an earlier action, which had been dismissed, and a new action which went over the same issues, not an interlocutory question as in the present instance. In a sense it was an action upon an action.
[12] In Talbot v. Pan-Ocean Oil Corp., (1977) 3 Alta.L.R. (2d) 354 (C.A.), the Alberta Court of Appeal decided that the doctrine of res judicata did not apply, because the material upon which the initial interlocutory motion had been decided was plainly inadequate and although counsel sought an adjournment in order to file further material, that was denied. The matter having not been properly considered initially, the contention of res judicata failed. In contrast, in the present instance, I accept the affidavit evidence of Mr. Bernard, who was counsel for the Plaintiff, before the Associate Chief Justice on the injunction application, that the Associate Chief Justice offered counsel for the Defendants further time to prepare, that offer being declined. The concept here is that "res judicata will apply in a subsequent application if the applicant relies merely on his or her own failure to present certain material or arguments on the first application because whatever might have been litigated in the first proceeding will be deemed to have been adjudicated on its merits.": Sopinka, Lederman and Bryant on the Law of Evidence , supra, at page 1074. In this passage, at footnote 158 and also at footnote 156 the authors notes that, so far as this principle goes, Talbot v. Pan-Ocean Oil Corp. is one of several odd cases out.
[13] The Federal Court of Appeal decision in Coca-Cola Ltd. v. Pardhan (1999), 240 N.R. 211, Mr. Justice Strayer, writing for the Court, notes at page 222 that the motions judge did not err, in striking out an action, by failing to take into account that other judges had granted interlocutory orders. The Court of Appeal pointed out that the motions judge "... was obliged to deal with the very issue raised before him, and not raised in the other matters: namely that even assuming everything alleged in the Statement of Claim to be true, there was in law no reasonable cause of action.". In this instance, my understanding is that the jurisdiction was touched upon before Associate Chief Justice Lutfy and counsel for the Defendants given ample opportunity to prepare further, but declined that invitation and here I refer back to the passage I have already quoted, from Sopinka, Lederman and Bryant , to the effect that counsel cannot rely upon a failure to present certain material or arguments on an earlier application in order to negate the doctrine of res judicata.
[14] By way of summing up, I accept that the Defendants do not agree with the conclusion of the Associate Chief Justice. It is their right to appeal as they have done. However, they do not have the right to re-argue the same issue: see for example National Bank of Canada v. Royal Bank of Canada, an unreported 13 March 2000 decision of Mr. Justice Greer of the Ontario Superior Court in file 8745/91 at paragraphs 4 and 8.
[15] Counsel for the Plaintiff goes further and submits that by bringing the present motion there has been an abuse of process, here referring to Borley v. Fraser River Harbour Commission (1995), 92 F.T.R. 275 (F.C. - P.) applied by the Federal Court of Appeal in Levi Straus & Co. v. Roadrunner Apparel Inc. (1998), 76 C.P.R. (3d) 129 at page 134, footnote 8. Borley dealt with an attempt to re-litigate issues which had been or should have been litigated in earlier proceedings. It is this sort of abuse which the doctrine of res judicata seeks to prevent. In the present instance, I do not see the actions of the Defendants as going so far as to constitute an abuse for, as I pointed out earlier, I did not reach the conclusion, as to the success of the Plaintiff, without considerable thought.
SUMMARY
[16] The Defendants have their remedy and indeed have taken it by way of an appeal of the Associate Chief Justice"s Order. The proceedings are now before the Federal Court of Appeal: it would be inappropriate for me to grant the alternative remedy, that of a stay of this action. The Defendants must be content with the remedy possible through their appeal: their motion is dismissed.
[17] While the usual rule is that costs follow the outcome, counsel did not address the subject of costs. If counsel are unable to agree, they may arrange to speak to the issues of costs. I thank counsel for their thorough presentation.
(Sgd.) "John A. Hargrave"
Prothonotary
August 23, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-225-00
STYLE OF CAUSE: RUBY TRADING S.A.
v.
| MYLES PARSONS, INTERNATIONAL TRANSPORT WORKERS FEDERATION, HABIBULA MUSTAFA, BAYRAM MON, KRASSIMIR STOYKOV AND ANTON LITVICHKOV |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: May 15, 2000
REASONS FOR ORDER OF HARGRAVE P.
DATED: August 23, 2000
APPEARANCES:
Mr. Peter Swanson FOR PLAINTIFF
Mr. James Baugh FOR DEFENDANT
SOLICITORS OF RECORD:
Campney & Murphy
Vancouver, BC FOR PLAINTIFF
McGrady, Baugh & White
Vancouver, BC FOR DEFENDANT
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