Issues to consider before relitigation

Whether you are a defendant or a claimant, if you are unhappy with a Court’s decision you might decide you want a do-over. You should be careful when seeking relitigation because not only can it be swiftly dismissed by the Courts, it can also leave you out of pocket.

Courts hate unnecessary repeated litigation and to avoid this they have powers to strike out relitigation applications and force the applicants to pay costs.

What is res judicata?

When relitigating a claim, you should be wary of the doctrine of res judicata, Latin for “the thing has been judged”. Res judicata prevents someone from re-litigating an issue that has already been determined by a competent jurisdiction. In practice, this means if you go to Court and lose, you cannot simply go to a different Court and have the same matter heard again.

“If insanity is trying the same thing over and over and expecting different results, it’s easy to see how this principle can be applied to law as well.”

If the opposing side persuades a judge that res judicata applies it can result in an application being thrown out. Claimants or defendants who seek to relitigate on the same facts also run the risk of possible adverse costs orders.

When does res judicata apply?

Res judicata is divided into two distinct types: cause of action estoppel and issue estoppel. This case from the Court of Appeal for British Columbia sets out the difference between the two types:

“Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding. Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.”

So if the reasons for bringing a claim for a second time are the same, cause of action estoppel may apply. If the reasons for re-litigating are the same but the issues involved have already been decided in a prior proceeding, issue estoppel may apply.

This Supreme Court of Canada ruling sets out when issue estoppel can be used:

“The requirements of issue estoppel are (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies.”

Issue estoppel normally only permits an earlier decision to be re-examined under certain circumstances such as when fresh evidence is brought forward or if there is a change in the law that is relevant to the original decision.

Case law

A recent decision by the Court of Appeal for BC shows the danger parties face by seeking relitigation. A landlord, Ms. Ahmed, narrowly avoided having to pay special costs after she tried to litigate a claim for damages multiple times. Ms. Ahmed, who was self-represented and had her husband speak on her behalf, had originally sought $25,000 in damages from a former tenant, Canna Clinic Medicinal Society. The action was dismissed after the claimant failed to comply with an order to serve a trial statement and to produce certain documents. She went on to litigate the alleged damages claim a total of three times in various courts.

Ms. Ahmed also sought a separate action with BC Supreme Court, for damage to the property and $268,000 in unpaid rent. This action was dismissed and the decision was upheld by the Court of Appeal. The appeal court ruling stated: “Put simply, this Court found that Ms. Ahmed had made a strategic decision to start in Small Claims Court and, having failed there, could not simply start over in a different court, even if additional breaches of the lease were being pursued.”

Ultimately, an application to the BC Supreme Court for judicial review was dismissed and the judge ordered her to pay “special costs”. The judge said: “Your insults against the courts, the court registries, and the judges cannot be accepted, and have to be punished with a special costs order against you.”

The judge added: “The Owner’s approach to this dispute underscores the need for the doctrine of res judicata.”

The Court of Appeal later overturned the special costs order against Ms. Ahmed despite finding the reasons for dismissing her judicial review still stood because the issues raised had already been dealt with in other court proceedings and could not be challenged again.

How a lawyer can help

Decisions made in Court can only be overturned in certain circumstances. If you feel a decision made in Court was incorrect, this is not enough for a decision to be re-opened. If insanity is trying the same thing over and over and expecting different results, it’s easy to see how this principle can be applied to law as well. The best way to challenge a decision is via an appeal but this will only succeed if the reasons for the appeal are different from the original action or if the issues involved in the case are different, such as fresh evidence. The process of an appeal can be complex and requires a great deal of preparation. It is recommended you hire a lawyer to help you.

Our lawyers are prepared and experienced to help with an appeal. If you have any questions or would like to discuss whether you have grounds for an appeal, contact our office on 604-685-889.

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