IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	James v. British Columbia,
	2006 BCSC 873

Date: 20060606
Docket: 03-2951
Registry: Victoria

Between:

Kenneth David James

Plaintiff

And:

Her Majesty the Queen in Right of the
Province of British Columbia

Defendant

BROUGHT UNDER THE CLASS PROCEEDINGS ACT

Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Counsel for the Plaintiff:	J. J. Arvay, Q.C. and P. Ramsay, Articling Student at Law
Counsel for the Defendant:	J. E. Gouge, Q.C. and K. Horsman
Dates and Place of Trial/Hearing:	March 27 and 28, 2006
	Victoria, B.C.

INTRODUCTION

[1]                In the statement of defence to the plaintiff's statement of claim, the defendant pleaded:

7.         In the further alternative and in further answer to the whole of the Statement of Claim, the issues giving rise to this action were resolved in Supreme Court of British Columbia, Vancouver Registry Action No. S012533, and the Crown says that this matter is thus res judicata and is an abuse of process.  In the alternative, the Crown says that the plaintiff, either in his own capacity or as the proposed representative plaintiff on behalf of members of the proposed class, is estopped from bringing this claim as a result of the resolution of the action in Action No. S012533.

[2]                Pursuant to R. 39(29) the questions of fact and law, raised by that pleading, were ordered to be tried and determined, before the other questions currently at issue in this proceeding.

[3]                The trial of 27 and 28 March 2006, and these reasons for judgment, are confined to the issue of res judicata.

PRELIMINARY EVIDENTIARY RULING

[4]                At the opening of the trial, the defendant filed, as Exhibit 1, admissions made by the plaintiff, in response to a notice to admit delivered by the defendant.

[5]                The plaintiff then sought to lead viva voce testimony, to which the defendant took objection.

[6]                The defendant contended that the viva voce testimony was irrelevant to the question to be determined.  All of the facts material to that determination, it was said, were contained in the admissions.

[7]                The plaintiff's position, in response, is that if (and only if) the factors necessary for a conclusion of res judicata are found to prevail, then, nevertheless, due to special circumstances, the plaintiff's action should be permitted to proceed.

[8]                One of the plaintiff's arguments in support of that contention is based upon the nature of the prior proceeding alleged in paragraph 7 of the defendant's statement of defence.  That prior proceeding was a representative action (more fully defined below) over which the plaintiff had no control.

[9]                I heard the testimony of the plaintiff's witnesses, conditionally, reserving my determination of its admissibility on the trial.

[10]            I now conclude that the testimony is relevant to the issue of "special circumstances", and rule it admissible on the trial.  That is to say, the testimony of Mr. James, Mr. Isaacsen, Ms. Melvin and Mr. Whiteford is admitted in their entireties.

MATERIAL FACTS

[11]            Between 25 January 1999 and 26 January 2001, the plaintiff was employed by TFL Forest Ltd.  He worked at his employer's sawmill at Youbou, B. C.  During that period, the plaintiff was a member of the Industrial Wood and Allied Workers of Canada, CLC, Local Union 1-80.

[12]            Much of the timber processed at the Youbou mill was harvested from Tree Farm License No. 46, issued by the defendant.

[13]            In 1991, the license was split, and made subject to the following clause:

The licensee will not cause its timber processing facility at Youbou to reduce production or to close for a sustained period of time, unless, and to the extent that the Minister or his designate, exempts the licensee from the requirement of this paragraph.

[14]            In 1997, that license was replaced with a new license, the terms of which did not contain the wording of the clause referred to above.

[15]            On 26 January 2001, TFL Forest Ltd. terminated its operations at the Youbou mill.  In result, the plaintiff lost his job, that is to say, he "left the industry", and no longer qualified for membership in Local 1-80.  He was issued a "withdrawal card" which defined the terms of his reinstatement, should he return to the industry.  It did not confer any other benefits of union membership relevant to this matter.

[16]            The mill's demise precipitated a response in the community.  The plaintiff remained engaged.  He was aware of the options under consideration, including the proposed litigation.  He attended a press conference held concurrently with the commencement of a proceeding, in the Vancouver Registry of this Court, under Action No. S012533, on 4 May 2001.  The proceeding was a representative proceeding, brought under the authority of R. 5(11) of the Rules of Court.[1]

[17]            In that proceeding, the named plaintiffs were:

Industrial Wood and Allied Workers of Canada, CLC, Local Union 1-80; and

William O. Routley on behalf of the 196 bargaining unit members employed by TFL Forest Ltd. Cowichan Sawmill

[18]            The named defendants were:

Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Forests; and

John and Jane Doe

[19]            The material pleas for the purposes of these reasons for judgment, in the statement of claim in that proceeding are:

9.         On December 5, 1991, the Minister of Forests Dan Miller gave approval in principle to the request of Fletcher Challenge, subject to the condition of Clause 7 which provides:

Fletcher agrees to include in the TFL that will be issued to them after the subdivision of TFL 46 the following clause:

The licensee will not cause its timber processing facility at Youbou to reduce production or to close for a sustained period of time, unless, and to the extent that the Minister or his designate, exempts the licensee from the requirement of this paragraph.

...

15.       Sometime prior to July 1, 1997, the Defendants ... removed [the clause referred to in paragraph 9] from [a replacement] license.

...

37.       By issuing the replacement TFL without [the clause referred to in paragraph 9], the Crown breached the duty of care owed to the Plaintiffs and thereby caused damages to the Plaintiffs.

38.       As a result of the aforesaid bad faith or negligence of the Defendants, the Plaintiff Employees have suffered and continue to suffer general damages, the particulars of which will be provided in due course.

...

[20]            The prayer for relief reads as follows:

The Plaintiff Routley on his own behalf and on behalf of the 196 bargaining unit members employed by TFL Ltd. Cowichan Sawmill Division claims against the Defendants, and each of them as follows:

(a)        General Damages;

(b)        Special Damages;

(c)        Wage Loss;

(d)        Interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, and amendments thereto;

(e)        Costs of this action;

(f)         Such further and other relief as this Honourable Court may seem meet.

[21]            In that proceeding, the defendants' statement of defence contained, among others, the following allegation:

3.         With reference to paragraph 3 the Defendants state that the Plaintiff Routley is not entitled to maintain the representative action on behalf of the employees by reason of the fact that the subject employees do not have the same interest in the proceeding.

[22]            At some point, the licensee, TFL Forest Ltd., was added as a third party.

[23]            Following the commencement of that proceeding, Mr. James continued his activity in the community, including participation in a community body known as the Youbou Timberless Society.

[24]            Initially, he said, he was the "point man" for the dissemination of information, including information on the progress of the litigation.

[25]            Early in the history of that litigation, regular meetings were held in the Local 1‑80 Union hall.  Mr. Routley would attend those meetings.

[26]            The frequency of those meetings declined over time; as did Mr. Routley's attendances.  And too, there was a perceived conflict between the objectives of the members of the union and the objectives of other interested persons, primarily, apparently, those persons Mr. James described as "conservationists".  In result, the group was disinvited from the use of the union hall facility.  Thereafter, meetings were held in his home.

[27]            Meanwhile, counsel were pressing on with the extant litigation.

[28]            In November 2002, counsel for the defendants informed counsel for the plaintiffs of instructions received to apply to strike the plaintiffs' statement of claim, because it failed to disclose a reasonable claim.  In response, counsel for the plaintiffs suggested such an application be deferred, to allow time for counsel to seek instructions on whether Mr. Routley and the IWA wished to continue to prosecute the action.

[29]            On 20 November 2002, Mr. Routley and the IWA instructed their counsel to prepare "a detailed legal opinion on our chances of success, and her opinion as to whether we should continue our lawsuit ...".

[30]            By letter dated 25 April 2003, counsel responded to Mr. Routley's instructions.  Among other things, counsel wrote:

Based on the documents reviewed it will impossible to argue clause 7 (the "Youbou clause") was eliminated by a bureaucrat in the Ministry, without the knowledge and consent of the Minister.  Accordingly, the allegations of bad faith or negligence by the bureaucrats are unfounded which leaves the claim against the Minister of Forests for bad faith or negligence.  It will be impossible to succeed in an action against the Minister in the exercise of his discretion.  Consequently, the lawsuit has no chance of succeeding and should be discontinued.

...

... it is unlikely the court will find the Minister owed a private law duty of care to the IWA and the Youbou employees and, therefore, the case will not succeed.  ...

... In my legal opinion, this action cannot succeed.

...

Considering the foregoing we seek instructions to attempt to discontinue this action without costs to the IWA.  If the Defendants will not agree to discontinue the matter without costs the Union will be responsible for taxable costs and disbursements.  At this stage those will not be significant.  However if the matter continues the defendants' costs will increase substantially.

[31]            From a source not identified in his testimony, Mr. James learned that the IWA proposed to hold a meeting to consider counsel's recommendation that the litigation be abandoned.

[32]            Mr. Isaacsen is also a former employee of the Youbou mill.  He said that he too learned of the proposed meeting by "word of mouth".

[33]            Mr. Isaacsen said that he, Mr. James and two other former employees attended the meeting, at the union hall, on 10 May 2003.  When the union executive entered the meeting room, they noted the presence of the four, and told them they were welcome to attend, but they could not participate in, nor vote at, the meeting.  Mr. Routley then explained the opinion which had been received from litigation counsel.  There was a vote by show of hands.  The motion to instruct counsel to abandon the lawsuit carried unanimously.

[34]            Mr. James, and Mr. Isaacsen, said that if they had been allowed to vote they would have voted "no".  Mr. James said he was unaware of any options open to him.  Had he known he could "opt out" of Mr. Routley's representative action, he would have done so.

[35]            There is no evidence that Mr. James made any inquiries about the options, if any, available to him.  However, he did request of Mr. Routley that Mr. Routley inquire into the availability of counsel who would take the action on a contingency fee arrangement.  Nothing developed from that request.

[36]            Counsel then proceeded to finalize the matter.  Counsel for the union and Mr. Routley prepared, and circulated, a consent dismissal order.  The order was entered 29 May 2003.  By that order, the proceedings were dismissed without costs to any party.  Rule 5(13)(a)[2] makes that order binding on Mr. James and the 196 bargaining unit members.

[37]            Mr. James learned of the entry of the consent dismissal order on 17 June 2003.  He commenced this current proceeding on 16 July 2003.  On 26 August 2005, the proceeding was certified as a class proceeding.  The members of the class are:  (i) union members resident in B.C. at 26 August 2005; (ii) non-union member employees resident in B.C. at 26 August 2005; and (iii) employees not resident in B.C. at 26 August 2005.

[38]            On 26 August 2005, the order directing the defences of res judicata, issue estoppel and abuse of process be tried before any other issues in the action, was made.

[39]            The material allegations, for the purposes of this portion of the trial, in Mr. James' amended statement of claim are:

10.       On December 5, 1991, the Minister at the time, the Honourable Dan Miller, gave approval in principle to the request of Fletcher Challenge, subject to the inclusion of a new clause in the TFL ("Clause 7"):

The licensee will not cause its timber processing facility at Youbou to reduce production or to close for a sustained period of time, unless, and to the extent that the Minister or his designate, exempts the licensee from the requirement of this paragraph.

...

16.       In preparing the replacement TFL documents, the Crown Employees removed the language of Clause 7 from TFL 46.

...

20.       The Minister and Crown Employees owed the Plaintiff and the members of the Class a private law duty of care to ensure that Clause 7 was not removed from TFL 46 in a negligent manner.

...

27.       The negligence of the Crown Employees and/or the Minister as described in paragraphs 17, 18 and 19 was the cause of the losses of the Plaintiff and the members of the Class.

[40]            The prayer for relief reads as follows:

The Plaintiff on his own behalf and on behalf of and representing all other persons who at any time during the period from April 10, 2000 to January 26, 2001, were employees of the Licensee at the Youbou Mill, claims:

(a)        general damages;

(b)        loss of income;

(c)        special damages;

(d)        punitive damages;

(e)        costs; and

(f)         such further and other relief as to this Court seems just.

[41]            On 15 March 2005, the Court of Appeal dismissed an appeal from my finding, (for the wrong reasons), that it was not plain and obvious that the plaintiff's pleadings disclosed no reasonable cause of action.

ISSUES

[42]            Mr. James (hereafter "the plaintiff") characterizes the issue to be determined in the following words:

Is the Plaintiffs' claim barred by the doctrines res judicata and/or issue estoppel arising from a consent judgment of this Court entered in the IWA Lawsuit on May 29, 2003?

[43]            The determination of that issue, so characterized, is dependent upon the determination of two subsidiary issues:

i)          Has the Defendant proved the essential elements necessary to a finding that the current proceeding is a relitigation of issues finally decided in previous judicial proceedings; and

ii)         If so, then is the doctrine of res judicata not applicable in this proceedings because of special circumstances.

ANALYSIS

[44]            A consent order is as effective, for the purposes of estoppel, as an order pronounced after a trial, or the hearing of the matter on its merits.[3]

[45]            The defendant's application is a "cause of action" species of the genus "estoppel".  As will be seen below, the plaintiff raises, in opposition to the defendant's application, the species "issue" estoppel.[4]

[46]            Under either species,[5] there are three pre-conditions which must be satisfied to establish the necessary and sufficient condition for estoppel:

i)          the cause of action in both proceedings must be identical;

ii)         the judgment which is said to create the estoppel must be final; and

iii)         the parties to that judgment or their privies are the same persons as the parties to the proceedings in which the estoppel is raised or their privies.[6]

[47]            The first pre-condition is satisfied.  The fact, or combination of facts, which give rise to a remedy in law, is, and are, identical in both proceedings.  They are both actions in tort.  Both allege a duty of care on the province; a breach of that duty, which caused damages.  The remedies sought are also identical, namely, a money judgment.

[48]            The correspondence between counsel, and counsel's opinion of 25 April 2003, prove that it was that cause of action which was decided by the consent judgment.[7]  The second pre-condition is satisfied.  The consent judgment was final.

[49]            The third pre-condition has also been satisfied.  Although the parties are not the same, their privies are the same.

[50]            "The concept of 'privity'", it was said in Danyluk,[8] "... is somewhat elastic.  ...  '[i]t is impossible to be categorical about the degree of interest which will create privity' and that determinations must be made on a case-by-case basis.  ..."

[51]            In Jowett, Dictionary of English Law, 2nd edition, 1977, a definition of "privies", among others, is:

In its secondary sense, privity denotes a peculiar relation in which a person stands either to a transaction or to some other person.  The person's standing in such a relation are called privies.

[52]            Black's Law Dictionary, 8th edition, 2004, says of "privy" or "privies":

The term also appears in the context of litigation.  In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim.

[53]            Under those definitions, Mr. James and the members, or former members, of Local 1-80 were clearly privies to the prior proceeding.  The position of the non-union members is not as clear.  They were in a "peculiar relation" to the prior proceeding in that, they too, lost their jobs when the mill closed.

[54]            The reason for the rule of privity appears to be based upon mutuality.  In McIlkenny v. Chief Constable of West Midlands,[9] Lord Denning, M.R. wrote:

The doctrine of mutuality says that, in order that there should be an estoppel, it must be such that both of the two parties and their privies must be bound by the estoppel, whichever way it goes.  Win or lose, each party must be bound.  It is said that, in any contest, that is the only fair thing.

[55]            There is no doubt that if the consent judgment had been in favour of the plaintiff, and the province taken to have admitted the allegations in the statement of claim, the province would have been subject to the operation of estoppel, at least issue estoppel, in a later action brought by the non-union employees, or any of them.[10]

[56]            The determination of the necessary and sufficient condition for the doctrine of estoppel, is the first step in a two-step analysis prescribed in Danyluk.[11]  If the pre-conditions have been established, then, as a second step, the court must still determine whether, as a matter of discretion, the doctrine ought to be applied.

[57]            The starting point for this second step is General Motors of Canada Ltd. v. Naken,[12] a representative proceeding against General Motors, about a defective automobile.  On the application of General Motors, the court found the particular proceeding before it not suitable for a representative proceeding, under the applicable Ontario rule of procedure.  One of the reasons, in support of that finding, was explained, at page 101:

... If the effect of the ultimate judgment in this class action is res judicata on all rights of all members of the class with respect to the acquisition of a Firenza automobile, the result would be serious in such a circumstance.  The operation of the defence of res judicata has a long history in our courts, and no authority was drawn to the attention of the Court wherein a court ignored such a plea in the case of a class action.  It is true that there is a discretion in the courts where the defence of res judicata is raised, but such a discretion must be very limited in application.  This Court determined in Cahoon v. Franks, [1967] S.C.R. 455, that all damages arising out of the same negligent act must be asserted by the claimant in the one action, and any subsequent action was barred by the doctrine of res judicata.  The fact that harsh results follow the application of the doctrine has not deterred its application by the courts.  ... Rule 75 is silent as to the issue, and, failing some specific provision by statute, regulation or otherwise, the defence of res judicata would continue to apply.  The fact that the action may be in contract of one kind or another would appear to represent no basis for the selective application of the defence of res judicata.  If the courts were to adopt a principle whereby class actions estopped participants from future action only to the extent of claims made in the class action, one of the root purposes of the class action would be defeated.  The inherent benefit of the representative action sadly produces this serious side effect.  This is no doubt the most important factor which excited legislators elsewhere to action in defining and describing this action and its conduct.

[58]            In Danyluk,[13] the court observed:

... In General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72, Estey J. noted, at p. 101, that in the context of court proceedings "such a discretion must be very limited in application".  In my view the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision makers.

[59]            Mr. Arvay argues that the discretion should also necessarily be broader in representative actions.  That notion seems to me to have been considered, and rejected, by Estey J. in the extract quoted above.  When British Columbia enacted the Class Proceedings Act, it did not repeal R. 5.  Presumably, the legislature recognized "the inherent benefit of the representative action".

[60]            The exercise of the discretion is said to be governed by notions of "justice", "injustice", and "fairness".  The dilemma is, to whom?

[61]            In City of Toronto v. Canadian Union of Public Employees, Local 79,[14] Doherty J.A., observed, of this dilemma:

When a controversy arises over a party's right to relitigate a decided issue, important principles that are at the core of the due administration of justice clash.  Parties who seek to relitigate stress their "right" to a decision on the merits made after they have had a full opportunity to present their case before the tribunal charged with the responsibility of rendering a decision.  Those who resist relitigation assert their "right" to rely on the previous determination.  All parties insist that "justice" is achieved by the position they assert.

[62]            The general principle for the resolution of the dilemma has been stated in a number of ways.  In City of Toronto, above, Doherty J.A. defined it in these words:

In deciding whether to permit relitigation, a court or tribunal must decide whether finality concerns should outweigh an individual litigant's claim that the justice of the specific case warrants relitigation.  That determination is fact-specific and requires that the court or tribunal weigh these competing considerations in the context of the facts of the particular case.[15]

[63]            Schweneke v. The Queen in Right of Ontario[16] is authority for the proposition that the burden is upon the plaintiff to demonstrate the injustice of the application of action estoppel.

[64]            The topic in Schweneke was issue estoppel.  The proposition would appear to be equally applicable to action estoppel.  At para. 38, the court said:

The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrine exist.  The party relying on the doctrine has the burden of establishing those prerequisites.  The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances.  In exercising the discretion the court must ask -- is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?  The party seeking to invoke the discretion has the burden of demonstrating that injustice.

[65]            And further, at paras. 40 and 41:

[40]      In our view, it is not enough that a party resisting issue estoppel demonstrate that the process leading to the finding did not provide the full panoply of procedural protections available in civil litigation.  The party must go further and show that in the circumstances of the particular case shortcomings in the procedures of the tribunal, whose finding is relied on in support of an issue estoppel claim, were such that it would be unjust to give effect to that finding in subsequent civil litigation.

[41]      Nor, in our opinion, can a party seeking to invoke the discretion rely on general fairness concerns which exist whenever the finding relied on emanates from a tribunal whose procedures are summary and whose tasks are narrower than those used and performed by the courts.  The party must demonstrate how unfairness actually occurred in the circumstances of the specific case.

[66]            Further assistance is provided in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79.[17]  There, the topic was abuse of process, "rather than the narrower and more technical doctrine of ... issue estoppel".[18]  The court referred to a number of circumstances which would dictate that relitigation is necessary to enhance the credibility and effectiveness of the adjudicative process as a whole, including:

(a)        fraud or dishonesty in the original proceeding;

(b)        the availability of fresh, new evidence, previously unavailable, which conclusively impeaches the original result;

(c)        fairness dictates the original result should not be binding in the new context;

(d)        the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable;

(e)        an inadequate incentive to defend; and

(f)         a tainted original process.

[67]            In Danyluk, the court suggested seven factors for consideration, in the context of prior decisions of administrative tribunals.  Six of those factors are specifically relevant to such proceedings.  The seventh, is:

[80]      As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.  ...

[68]            That must mean injustice according to law.

[69]            The plaintiff does not rely upon the foregoing factors specifically.  He says there are other factors which constitute special circumstances.

[70]            First, in the prior action, the defendant pleaded that Mr. Routley did not have the status to maintain the action on behalf of the employees.  The consent dismissal order, as I understand the argument, must be taken to have decided that issue as well.  The defendant ought not to be heard on an order resulting from proceedings which were a nullity.  I am not persuaded that this is a sound argument.  The consent order was precipitated by a proposed application under R. 19(24).  That is to say, it was to be alleged that the pleadings did not disclose a reasonable cause of action.  The order was not precipitated by an application under R. 5(11); that is to say, that Mr. Routley did not have the authority to initiate the proceedings.

[71]            In any event, the defendant's prior plea was not "fundamental to the ... order agreed to ..."[19]

[72]            Second, the plaintiff claims he had no opportunity to opt out of the prior action when the decision was taken to consent to the dismissal of the claim.  This was so because he was not then a member of the trade union.

[73]            I am not persuaded that this is an accurate assertion.  Rule 5(11) is subject to the intervention of the court.  A change of the plaintiff's membership status in his trade union did not change his status as a person with an interest in the proceeding.  That may be a mindless observation at this point, however, it may be more appropriate to say that the plaintiff did not take the opportunity to opt out.

[74]            Third, the plaintiff had no right or opportunity to participate in the decision, or to vote against it.

[75]            I am not persuaded that this is a sound condition either.  The plaintiff may have had no right to participate in the business of his former trade union.  However, his rights and privileges under the Rules of Court remained open to him.

[76]            Fourth, the plaintiff says there were procedural inadequacies in the earlier proceedings in that, he had no opportunity to participate in the prior proceeding, in a meaningful way.[20]  Further, the protections accorded to a class member by the Class Proceedings Act, are not available in R. 5 representative actions.[21]

[77]            This is not a persuasive argument.  The procedure under R. 5 of the Rules of Court is an authorized procedure under British Columbia law.  Within that context, the dispute was progressing under the direction of counsel for both sides, for two years.  For some period of time, at least, the plaintiff was meaningful involved in the progress of that process.  This is not a case of a summary disposition, following one telephone consultation, a one-hour interview, and a decision based on information not disclosed, as in Danyluk.  Nor is it a case of an insurer acting in conflict with the interests of its insured as in Braithwaite v. Haugh (1978), 19 O.R. (2d) 288 (Ont. C.C.).

[78]            Fifth, it is argued that this is public law litigation.  In Withler,[22] one of the court's reasons for declining to apply the doctrine of abuse of process was the public law nature of the litigation.  There, the constitutionality of legislation was in issue.

[79]            I am not persuaded this is a public law case.  The plaintiff's claim is for a money judgment for the alleged tortious conduct of the defendant.  The identity of the Province of British Columbia as the alleged tortfeasor does not convert this private law action into an action in the field of public law litigation.

[80]            Sixth, and finally, the plaintiff says:

... even if the preconditions to the operation of res judicata are met, it is respectfully submitted that this Court should exercise its discretion not to give effect to this doctrine for the reason that the Crown's application is simply brought too late in the day.  The Plaintiffs have already expended a considerable amount of effort, energy, emotion and resources pursuing this claim.

[81]            I am not persuaded that this submission is relevant.  The plaintiff has known of the plea of res judicata since delivery of the defendant's statement of defence.  There is no evidence of any improper conduct on the part of the defendant in delaying these proceedings, nor any evidence that the plaintiff has suffered prejudice as a result of the timing of the hearing of the application.  This application is one of several interlocutory applications made throughout the history of this litigation.

[82]            Taken cumulatively, the factors identified by the plaintiff do not bring this case within any of the precedents in which the court has declined to prevent relitigation notwithstanding the preconditions of estoppel, either action or issue, have been established.  The plaintiff has not discharged the burden imposed upon him.  Accordingly, the defendant's application is allowed.  The action is dismissed.

“R.D. Wilson, J.”
The Honourable Mr. Justice R.D. Wilson