Court Considers Abuse of Process in Subsequent Proceeding Commenced by Plaintiff

In Doria v. Warner Bros. Entertainment Canada Inc. et al., 2022 ONSC 4454, the court considered when a further proceeding can be commenced arising out of the same facts.

The plaintiff rented out his house to a film production company. His family room floor was scratched. He commenced an arbitration against the film production company and its insurer seeking damages of over $680,000. He was awarded just under $50,000. An application to set aside the arbitrator’s award was dismissed.

The plaintiff then commenced a court action against different defendants seeking damages of over $500,000. He relied on section 139(1) of the Courts of Justice Act, which states: “Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one of them does not preclude judgment against any other in the same or a separate proceeding”.

However, section 138 of the Courts of Justice Act indicates: “As far as possible, multiplicity of legal proceedings shall be avoided”.

The defendants brought a motion to dismiss the action as an abuse of process. Justice Koehnen granted the motion. His Honour indicated that the plaintiff’s full claim was adjudicated upon by the arbitrator, and the plaintiff collected on the full amount of the arbitral award.

Justice Koehnen went over certain circumstances when subsequent litigation may be permitted:

• The plaintiff has succeeded in a first action against one defendant but has not been able to collect on the judgment. The plaintiff may be permitted to commence a second action against a new defendant.
• The plaintiff has settled an action with a defendant in a first action for an amount less than its full damages. A second action may be permitted against a new defendant to recover the difference.
• The plaintiff has “not had its day in court” because he or she was not involved in the first action in which a particular point was determined.
• Two different adjudicative bodies have carriage of different aspects of a dispute.
• The plaintiff has a solicitor’s negligence claim.

Justice Koehnen held that none of these circumstances applied to the case at bar. His Honour stated that the plaintiff’s real complaint is that he disagrees with the arbitrator’s damages award and would like an opportunity to obtain a higher judgment. Justice Koehnen stated that this is precisely a situation which the abuse of process doctrine is intended to guard against.

Section 139 of the Courts of Justice Act does not give parties the right to relitigate issues simply because the adjudicator in the first proceeding awarded less than the plaintiff was seeking.