Petrelli v. Lindell Beach Holiday Resort Ltd.,


2011 BCCA 367

Date: 20110907

Docket: CA038312


George Petrelli and Rita Petrelli




Lindell Beach Holiday Resort Ltd.




The Honourable Madam Justice Levine

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from: Supreme Court of British Columbia, July 6, 2010, (Petrelli v. Lindell Beach Holiday Resort Ltd., 2010 BCSC 956, Chilliwack Registry No. S20118

Counsel for the Appellant:

Ryan W. Parsons

Sarah F. Hudson

Counsel for the Respondent:

J. Luke Zacharias


Place and Date of Hearing:

Vancouver, British Columbia

June 24, 2011

Place and Date of Judgment:

Vancouver, British Columbia

September 7, 2011


Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Madam Justice Levine
The Honourable Madam Justice Neilson


Reasons for Judgment of the Honourable Mr. Justice Groberman:

[1]             The Petrellis purchased a “holiday home” in the defendant’s trailer park in 2007. Their friends, the Bahrys, had purchased a similar unit earlier that year. In 2008, the Bahrys brought an action against the defendant, alleging that municipal bylaws prohibited the use of the park for holiday homes. They successfully sought rescission of the contract under which they purchased their unit.

[2]             After the Bahrys succeeded in their lawsuit, the Petrellis brought a similar action, seeking to rescind their contract, as well. The defendant filed a statement of defence, alleging that the Petrelli’s unit could legally be situated in the park, as a legal non-conforming use. The Petrellis sought to strike the statement of defence as an abuse of process, arguing that, having lost the Bahry action, it was not open to the defendant to defend their similar claim. The chambers judge agreed. He struck the statement of defence and granted judgment to the Petrellis. The defendant appeals.

[3]             For reasons that follow, I am of the view that the chambers judge erred in finding that the defendant was abusing the process of the court by defending the action. The defendant was entitled to argue that the use of the Petrelli unit could be sited in the park as a legal non-conforming use of the land. It is necessary, in the circumstances, to remit the matter to the Supreme Court.


[4]             The defendant operates the Lindell Beach Holiday Resort at Cultus Lake. The resort includes a trailer park, campground, and golf resort.

[5]             Many of the sites in the park are set up as “holiday homes”. The homes are large trailers (known as “park model trailers”) that have had their wheels and trailer hitches removed, and are mounted on cinder blocks. The units have certain other modifications, and resemble cottages. They are permanently sited on landscaped sites within the park, and available for seasonal occupation from March to October each year. The defendant sells the holiday homes. A purchaser takes title to the trailer unit and also takes a renewable 3 year lease on the site on which it is located.

[6]             In May 2007, Mr. and Ms. Bahry purchased a holiday home from the defendant. The Petrellis heard about the resort from the Bahrys, and they, as well, decided to purchase a unit. Their purchase was completed in July 2007 for a sale price of $88,250 plus taxes. The Petrellis occupied the unit until the park closed for the winter on October 31.

[7]             On about November 13, 2007, a windstorm damaged several of the units in the park. The Bahry and Petrelli units were blown off their mounts and sustained damage. Ms. Bahry contacted a building inspector with the Fraser Valley Regional District, who attended the site to view the damaged trailers, along with a bylaw technician. Ms. Bahry sought their advice as to how the unit could be more effectively secured to the ground. The bylaw technician expressed the view that the Bahry and Petrelli units were on the land illegally, as he believed that the defendant was only allowed to use the land as a “campground”, while park model trailers could only be sited in a “holiday park”.

[8]             In March 2008, the Bahrys commenced an action against the defendant. The Bahrys alleged, among other things, that the siting of their unit in the park was illegal, and that this constituted a fundamental breach of the agreement under which they purchased it.

[9]             The Bahry action came on for summary trial in January 2009, and judgment was given in their favour in May of that year (Bahry v. Lindell Beach Holiday Resort Ltd., 2009 BCSC 632). The summary trial judge found that the defendant was operating a “holiday park” without having obtained the necessary approvals from the Regional District in violation of Regional District Bylaws. He found this to constitute a fundamental breach of contract under which the unit was sold and ordered rescission of the contract and a return of the purchase price to the Bahrys. The defendant did not appeal the decision.

[10]         In June 2009, following the Bahrys’ success in their lawsuit, the Petrellis commenced this similar action. The defendant filed a statement of defence, advancing a number of defences, including an assertion that the siting of the Petrellis’ unit in the park was a legal non-conforming use of the land.

[11]         In January 2010, the plaintiffs filed an amended statement of claim asserting that it was an abuse of process for the defendant to defend the action because the same contract had been interpreted by the Supreme Court in Bahry, and the court had held that the siting of a park model trailer in the park was an illegal use of the land.

The Legal Non-Conforming Use Issue

[12]         The land on which the resort is located is zoned “Campground-Holiday Park (CHP)” under Regional District of Fraser-Cheam Bylaw No. 66, as amended (the Regional District of Fraser-Cheam was amalgamated into the Regional District of Fraser Valley in 1995. By virtue of s. 780(7) of the Local Government Act, R.S.B.C. 1996, c. 323, bylaws of the former Regional District continue to apply). The zoning allows use of the land for “campgrounds” and “holiday parks”.

[13]         Under the bylaw, a park model trailer cannot be situated in a “campground”, nor can any recreational vehicle be stored on a site in a campground for more than 90 days. A park model trailer can be located in a “holiday park”, and there is no prohibition on permanent siting of recreational vehicles in such a park, as long as they are intended to be occupied for only part of the year.

[14]         The bylaw sets out different requirements for campgrounds and holiday parks in terms of site sizes, setbacks, and maximum density. The Regional District is of the view that the design of the defendant’s park does not conform with the requirements of a “holiday park”.

[15]         In addition to the zoning bylaw, campgrounds and holiday parks are subject to Regional District of Fraser-Cheam Campground and Holiday Park Bylaw No. 1190. That bylaw sets out different infrastructure requirements for campgrounds and holiday parks. It also requires a person who wishes to “locate, establish, construct, alter, expand or subdivide a … campground or holiday park” to obtain final approval and a permit from the Regional District’s building inspector.

[16]         It appears to be common ground on this appeal that at least parts of the defendant’s resort (including the site on which the Petrelli unit is located) are being used as a “holiday park”. It is also common ground that the defendant has never applied for or received a permit from the Regional District to operate either a campground or a holiday park on the land where the Petrelli unit is sited.

[17]         The Regional District appears to accept that the land in question has been used as a campground since before the advent of the current regulatory regime and that such a use may continue. Although it has not taken any action to enforce its view, it does not accept that use of the land as a “holiday park” is lawful.

[18]         The defendant, on the other hand, contends that at least part of the park (including the part on which the Petrelli unit is sited) has been continuously operated as a “holiday park” since before the bylaws prohibited such a use without a permit. They claim that, under the current bylaws, they are entitled to continue such operations without applying for a permit.

[19]         There have been several changes in the land use bylaws that apply to the resort. Until 1976, land use was not regulated. When Bylaw No. 66 was passed in 1976, the land comprising the resort was designated as “Rural – R”, a zoning which allowed use as a “campground”. At that time, the zoning bylaw did not define “holiday park” as a separate use. It is not clear, from the limited excerpts of the bylaw that are before the Court, whether the current use of the land would have been permissible under the 1976 zoning.

[20]         In 1980, the Regional District enacted Campground and Holiday Parks Bylaw 264, and also amended Bylaw 66 to create a new zone known as “Campground-Holiday Park – CHP”. The resort was re-zoned to this new designation, which allowed the land to be used for campgrounds and for holiday parks. The 1980 bylaws do not appear to specifically exclude park model trailers from campgrounds, but they do limit the storage of recreational vehicles on a site in a campground to 90 days. It appears, therefore, that the current use of the Petrelli site would not have been permitted in a “campground” under Bylaw 264.

[21]         Bylaw 264 was repealed and replaced by the current Campground and Holiday Park Bylaw No. 1190 on December 5, 1995. At the same time, further amendments were made to Bylaw No. 66, to bring it into its current form.

[22]         The relevant bylaws all contain provisions exempting operations that existed at the time of their enactment from their provisions. In former Bylaw No. 264, the relevant section read as follows:

1.07     (1)        Subject to [sections which do not appear to have any bearing on this case], the provisions of this By-law do not apply to a campground or holiday park or any part of a campground or holiday park existing prior to the coming into force of this By-law [i.e. December 16, 1980]

[23]         A similar provision is contained in the current Bylaw No. 1190:

1.09     Subject to [sections which do not appear to have any bearing on this case], the provisions of this Bylaw do not apply to a … campground, holiday park or any part of a … campground, or holiday park legally existing prior to the coming into force of this Bylaw.

[24]         The zoning bylaw (Bylaw No. 66) also originally contained a similar provision, though it was probably superfluous in light of what is now s. 911 of the Local Government Act:

911 (1)  If, at the time a bylaw under this Division is adopted,

(a)   land, or a building or other structure, is lawfully used, and

(b)   the use does not conform to the bylaw,

the use may be continued as a non-conforming use, but if the non-conforming use is discontinued for a continuous period of 6 months, any subsequent use of the land, building or other structure becomes subject to the bylaw.

(2) The use of land, a building or other structure, for seasonal uses or for agricultural purposes is not discontinued as a result of normal seasonal … practices ….

(6) In relation to land, subsection (1) … does not authorize the non-conforming use of land to be continued on a scale or to an extent or degree greater than that at the time of the adoption of the bylaw under this Division.

(7) For the purposes of this section, a change of owners, tenants or occupants of any land, or of a building or other structure, does not, by reason only of the change, affect the use of the land or building or other structure.

[25]         The defendant alleges that the permanent siting of trailers on the land commenced before land use regulation commenced in 1976. It says that in 1973, there were 240 camping sites in the complex, of which half were “seasonal permanent sites”. It further alleges that a new owner purchased the resort in 1978, and that from that time on, many of the resort’s tenants agreed to sign leases of one to three years duration for their sites in the resort, and most of the sites were “permanent seasonal sites”, on which trailers were fixed to the ground.

[26]         There is some evidence in this case suggesting that the Petrelli unit is located in a part of the resort that was occupied by permanently sited units before the 1980 Bylaw, though the evidence is disputed.

The Judgment Below

[27]         The defendant wished to defend this lawsuit primarily on the basis that the Petrelli unit is lawfully located in the resort because it constitutes a legal non-conforming use of the land under s. 911 of the Local Goverment Act and the specific provisions of the Regional District’s bylaws. The chambers judge held that such a defence would amount to an abuse of the court’s process:

[52]          I have concluded that it would be an abuse of process to permit the defendant to maintain its defence to the plaintiffs’ claim that there was a fundamental breach of the contract in that the siting of the plaintiffs’ Holiday Home in the Park is illegal because it is contrary to the applicable bylaws. The illegal nature of the siting was determined in Bahry and ought not to be relitigated in this action. Furthermore, the Bahrys’ contract is identical in its material provisions to the Petrellis contract. It therefore follows from Bahry that there has been a fundamental breach of the contract in this case as well.

[53]          The amount in issue in this case is not significantly different from that in Bahry. The defendant was represented in Bahry and raised the same defences that it now seeks to raise on the issue of fundamental breach, including the issue of non-conforming use. While the discussion of that issue in Bahry at paragraph 12 of the decision is not lengthy, I am satisfied the issue was raised before the court, argued by the parties and considered and determined by the court. The defendant had every opportunity to present whatever facts were then available in support of that defence. I am not persuaded there are any new facts in relation to that issue that either were not presented or could not have been presented.

[54]          In my view, to put the plaintiffs to the burden of establishing that which has already been decided by this court in circumstances that are not distinguishable is unnecessary and unfair to the plaintiffs. More importantly, it is my view that relitigating this issue is contrary to the administration of justice. It not only involves an unnecessary use of judicial resources but creates the potential for conflicting decisions on legally indistinguishable facts. I see no unfairness to the defendant in refusing to permit it to relitigate the issue. It had every opportunity to fully deal with the issue in the other case and exercised its right to do so. It had the opportunity to challenge the decision on appeal but chose not to. Instead, the defendant now wants me, in effect, to sit on appeal from the decision of a brother judge.

[55]          There is, in my respectful view, an element of oppression in the defendant’s position of seeking to raise, once again, the same issue on which it was unsuccessful in another action involving another party who entered into a contract for the purchase and sale of a Holiday Home for placement on its property.

[28]         The defendant argues that the chambers judge was wrong in holding that defending this action could amount to an abuse of process. It says that it was entitled to defend, and that nothing in its statement of defence was abusive of the process.

[29]         As well, it takes issue with the finding of fact made by the chambers judge in para. 53 to the effect that the issue of legal non-conforming use was “raised before the court, argued by the parties and considered and determined by the court” in Bahry. It says that the chambers judge had no basis for making such a finding. Further, it seeks to have the Court consider the pleadings in the Bahry action, which were not before the chambers judge, which show that the non-conforming use issue was not before the court in Bahry.

The Bahry Pleadings – Judicial Notice

[30]         While the defendant has applied to adduce the pleadings in the Bahry action as fresh evidence, it says, first, that such an application is unnecessary, because the Court is entitled to take judicial notice of the Bahry pleadings.

[31]         While I acknowledge that it is sometimes said that a court may by “judicial notice” rely on its own records, it seems to me that some care must be taken in applying that phrase to court records. Typically, judicial notice covers matters that are matters of general knowledge or are easily ascertainable by anyone through resort to widely available and unquestionably accurate resources. No one can be taken by surprise when judicial notice is taken of such facts, nor can such facts be challenged, practically speaking.

[32]         The contents of court records are not matters of general knowledge, nor can they be easily ascertained except by resort to court files. It is not surprising, then, that there are limits on courts taking “judicial notice” of their records.

[33]         The defendant relies on the following passage from Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3d ed (Markham, Ontario: LexisNexis, 2009):

§19.107           …. In order to determine the identity of the actions or issues, the court should consult pleadings, judgments, reasons for judgments and other formal documents relating to the previous proceeding. There documents are admissible without formal proof. [Citing Barber v. McQuaig (1900), 31 O.R. 593 at 596 (H.C.J.); Kemptville Milling Co. v. Village of Kemptville (1924), 26 O.W.N. 431 at 432; and Wytinck v. DeGrouwe, [1952] 4 D.L.R. 326]

[34]         The passage does not use the phrase “judicial notice” to describe the reception into evidence of pleadings. Rather it says that such documents are admissible without formal proof. It seems to me that that is an accurate summary of the law.

[35]         The Evidence Act, R.S.B.C. 1996, c. 124 provides for a method by which court documents may be entered into evidence:

26. (2) Evidence of a proceeding or record may be given in any action or proceeding in British Columbia by an exemplification or certified copy of it, purporting to be under the seal of the court or under the hand or seal of the justice or coroner, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice or coroner or further proof.

[36]         It is well established, however, that proof in accordance with s. 26 is not needed in order for a court to make use of its own records. Courts have long accepted that they are entitled to look at their own records even if those records have not been formally proven and entered in evidence: R. v. Jones (1839), 8 Dowl. 80; Craven v. Smith (1869), L.R. 4 Exch. 146. In R. v. Lewis, [1941] 4 D.L.R. 640, this Court accepted that a judge of the County Court was entitled to rely on the notice of appeal in the court file to show that a notice had been filed on time. In R. v. Hunt (1986), 18 O.A.C. 78 at 79, the Ontario Court of Appeal stated the general proposition that “[t]he Court has at all times the power to look at its own records and take notice of their contents”.

[37]         Such documents do not have to be attached to affidavits, or presented to the court in the same way that most documentary evidence is presented. In R. v. Truong, 2008 BCSC 1151 at para. 57, 235 C.C.C. (3d) 547, Smart J. described the situation as follows:

[57]      It has been said that documents do not walk into a courtroom unaccompanied. Usually, this is true. Documents are typically introduced into evidence through the evidence of a witness or by affidavit evidence pursuant to a statutory provision. See for example s. 29 and s. 30 of the Canada Evidence Act. However, documents in the court's own files are an exception to this usual rule.

[38]         I have no doubt that the parties could have asked the chambers judge to look at the pleadings in the Bahry action without attaching those pleadings to affidavits, and without proving them in accordance with s. 26 of the Evidence Act. Further, in keeping with cases such as Lewis and Hunt, it seems to me that the judge, with notice to the parties, was entitled to examine the pleadings in Bahry even without them having invited him to do so.

[39]         In short, I agree with the appellant that the pleadings in Bahry, being records of the court, did not have to be proven in order for the judge to consider them. The issue on this appeal, however, is not whether the pleadings had to be proven, but rather whether they can be relied on as evidence without them having been before the chambers judge.  In my view, the case law does not support the idea that pleadings are subject to “judicial notice” in this broader sense.

[40]         In Rex ex rel. Armstrong v. Wheeler, [1945] 1 D.L.R. 745, 83 C.C.C. 105 (B.C. C.A.), a magistrate was asked to make an order declaring the defendant to be the father of a child. The governing statute provided that no such order could be made unless the mother of the child had sworn a complaint alleging paternity within one year of the child’s birth. No complaint was in evidence, and the defendant argued that the magistrate lacked jurisdiction to make the order. Unbeknownst to the defendant or his counsel, the magistrate had taken a complaint from the mother. The magistrate, without notice to the defendant, took judicial notice of that complaint and made the order. His order was reversed on appeal to the County court, and a further appeal was taken to this Court.

[41]         Three separate judgments were given in Wheeler. Sloan J.A., dissenting, was of the view that judicial notice could be taken of the complaint, based on R. v. Lewis. O’Halloran J.A. was of the view that compliance with the statutory precondition to the making of the order had to be strictly proven, and could not be a matter of judicial notice. Robertson J.A., concurring in the result, held that the magistrate could not take judicial notice of the complaint without letting the parties know that he was doing so (at D.L.R. 752):

The Magistrate should have told counsel when the objection was taken that there was a complaint and that he proposed to use it in evidence, in which case counsel might have asked leave to recall the complainant to cross-examine her upon it. If counsel had been told of the complaint and of the Magistrate’s intention to use it in evidence at the hearing and did nothing, the complaint might have been admissible as a record of the Court (although I do not so decide) … R. v. Lewis.

[42]         I agree with the position taken by Robertson J.A. A judge may be entitled to consult court records that are not directly before him or her and may be entitled to use them as evidence to decide a case. He or she should not normally do so, however, without advising the parties of his or her intentions and without giving them an opportunity to address the issue. In this way, the documents, even without formal proof, can properly be said to have become part of the evidence in the case.

[43]         I agree, as well, with the observations of Wong Co. Ct. J. (as he then was) in R. v. Sawchuk, [1984] B.C.J. No. 394 at para. 9 to the effect that it is a good practice, where a court document is being relied on as evidence in a case, for a copy of the documents to be made and marked as an exhibit so that they will be readily available to this Court if an appeal is taken.

[44]         In the case before us, neither party drew the judge’s attention to the statement of defence in the Bahry action, nor did the judge indicate an intention to examine it. In the circumstances, I am of the view that it did not become evidence in this case. I do not agree with the defendant’s assertion that this Court may take “judicial notice” of the pleadings in the Bahry action without some step (however informal) having been taken to make them part of the evidence in the court below.

[45]         In saying this, I acknowledge that the defendant has referred to Saskatoon Credit Union v. Central Park Enterprises (1988), 47 D.L.R. (4th) 431, 22 B.C.L.R. (2d) 89 (S.C.), in which McEachern C.J.B.C. indicates, at 433, that he has examined a Court of Appeal file and proceeds to make certain findings of fact based on the contents of the file. The defendant suggests that the Chief Justice in that case acted without notice to the parties, on the basis that judicial notice could be taken of court documents. I do not read the judgment as suggesting that the Chief Justice was engaged in a covert operation, and I would not treat the judgment as authority for the idea that court documents (apart from the pleadings in the case that is before the court) may form part of the evidence in a case without notice to the parties.

Should the Pleadings be Before the Court as Fresh Evidence?

[46]         It follows that if the statement of defence in Bahry is to be considered, it must be by way of the defendant’s application to adduce fresh evidence in this Court.

[47]         Under Rule 31 of the Court of Appeal Rules, the Court may grant a party leave to adduce evidence that was not before the court appealed from. In applying this rule, the court has adopted the tests set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212. Normally, the court will not allow a party to adduce fresh evidence if, by due diligence, the evidence could have been adduced at trial. Further, the evidence that is proposed to be adduced must bear upon a potentially decisive issue in the case, and be credible. Finally, the fresh evidence, when considered along with the evidence that was adduced in the court below, must be of such significance that it could reasonably be expected to have affected the result if it had been adduced.

[48]         The evidence sought to be adduced in this case was clearly available to the defendant at the time of the summary trial, and could easily have been brought to the attention of the chambers judge. No satisfactory explanation has been tendered for the defendant’s failure to do so.

[49]         The tests for the reception of fresh evidence in this Court are stringent, and as a result, it is rare for this Court to grant an application to adduce such evidence. In particular, this Court generally takes a hard line with respect to the due diligence aspect of the test, especially in civil cases. In Morris v. Fletcher (1993), 76 B.C.L.R. (2d) 283 at 286, Southin J.A. for the Court, said:

There may be rare and unusual circumstances where lack of diligence or lack of all reasonable diligence may be forgiven upon an application such as this but I see no reason at all why utter and complete lack of diligence should ever be indulged by this Court. On that footing, I would dismiss the application to adduce further evidence ….

[50]         Nonetheless, the Court does retain a discretion to allow fresh evidence to be adduced even when the due diligence aspect of the Palmer test is not met. In unusual cases, where the interests of justice demand it, the Court may allow fresh evidence to be adduced even if it ought to have been adduced in the court below: Golder Associates Ltd. v. North Coast Wind Energy Corp., 2010 BCCA 263, 88 C.P.C. (6th) 12.

[51]         The case before us presents some special challenges. The chambers judge found the defendant to be abusing the process of the court on the basis that it was re-litigating the very issues that had been determined against it in Bahry. It is difficult to see, however, how the chambers judge could have reached that conclusion on the basis of the evidence before him.

[52]         The chambers judge did not have the pleadings or evidence in Bahry in front of him, nor did any of the affidavits he examined refer to the question of whether the legal non-conforming use issue was raised in Bahry. The judge’s stated basis for his finding that the legal non-conforming use issue was raised in Bahry was para. 12 of the Bahry decision, which is as follows:

[12]      The parties have produced a series of correspondence between the defendant and the Regional District. It seems clear from this that the facility the defendant operates does not conform with the Holiday Park designation under the Bylaws. At best, the defendant seems entitled to consideration as a non-conforming use under the Campground Designation. However, the defendant has not provided evidence of use of the land prior to the Bylaws in the manner indicated by the Holiday Park designation, either in these proceedings or to the satisfaction of the Regional District.

[53]         The reference to “non-conforming use” in this paragraph is to the Regional District’s concession, in correspondence in 2003, that the land could be used as a campground notwithstanding the absence of a permit for such use. It does not suggest that the defendant took the position, in Bahry, that use as a holiday park was also a legal non-conforming use. Indeed, the paragraph suggests that it did not, noting that the defendant did not tender any evidence to suggest historic use as a holiday park.

[54]         The above-quoted paragraph in the Bahry judgment does not show that the non-conforming use issue was “raised before the court, argued by the parties and considered and determined by the court”. Rather, the comment about non-conforming use appears to be simply an aside, describing the uncontroversial background to a case in which the defendant did not contend that use of the land as a holiday park was a legal non-conforming use.

[55]         Given the absence of evidence to support the chambers judge’s finding, it would be open to this Court to simply overturn his decision and remit the matter to the trial court for determination. If that were done, the parties would, having expended considerable time and effort on this application and appeal, be no further ahead than when they started. It is quite possible that the plaintiff would simply bring a new application before the trial court to dismiss the action as an abuse of process.

[56]         The fresh evidence sought to be adduced in this case is uncontroversial. There is no doubt that the pleadings that are tendered are copies of the court records in Bahry. When they are examined in conjunction with the reasons for judgment in Bahry and the other evidence tendered in this case, they provide a clear picture of the issues that were before the court that heard Bahry. In particular, the pleadings in Bahry show, unequivocally, that the defendant in that case did not contend that land in the resort could be used as a holiday park. Instead, it defended on the assumption that the only permitted use of the land was as a campground.

[57]         In my view, the fresh evidence ought to be admitted notwithstanding the fact that it ought, with due diligence, to have been adduced in the court below. In coming to this conclusion, I rely on two factors that distinguish this case from most cases in which a party seeks to adduce fresh evidence on appeal.

[58]         First, the evidence that is sought to be adduced in this case was essential, in the court below, not only to the defendant’s case, but also to that of the plaintiffs. Where a party alleges that the other party to a lawsuit is abusing the process of the court by re-litigation, it is crucial that the court hearing the allegation know precisely what issues were before the court in the previous litigation. At least in the case before us, the court below could not reasonably have made any findings of fact on that issue without looking at the statement of defence in Bahry.

[59]         While I am mindful of Southin J.A.’s statement in Morris v. Fletcher, it seems to me that admitting the Bahry pleadings as evidence in this case is not indulging “utter and complete lack of diligence” by one party to the litigation at the expense of the other. The fresh evidence must be considered if the Court is to come to any conclusion with respect to the merits of the abuse of process argument.

[60]         I am also influenced by recent case law that suggests a somewhat more relaxed test to the reception of fresh evidence where the purpose of that evidence is to clarify and amplify the procedural history of the matter under appeal. That seems to have been the purpose of the evidence that was tendered in Golder Associates Ltd. v. North Coast Wind Energy Corp. I note, as well, that in Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, the Supreme Court accepted fresh evidence to clarify the record where the substance of the evidence was not contested and was not prejudicial to the party who opposed admission of the evidence.

[61]         In the circumstances, I would allow the application to adduce the pleadings in the Bahry matter as fresh evidence on appeal.

Abuse of Process by Relitigating a Fact Previously Determined by the Court

[62]         The plaintiffs’ primary argument on this appeal is that the statement of defence filed by the defendant is an abuse of the process of the court because it attempts to relitigate an issue that was finally determined in Bahry.

[63]         In order to analyze the argument, it is helpful to begin with the doctrine of issue estoppel, which holds that where a court has finally determined an issue between two parties, the determination cannot be questioned in subsequent proceedings. The requirements for issue estoppel were conveniently listed in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25, [2001] 2 S.C.R. 460:

[25]      The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle [Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248] at 254:

(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 proceddings in which the estoppel is raised or their privies.

[64]         The plaintiffs acknowledge that the doctrine of issue estoppel is inapplicable in this case, because the parties to this action are not the same as those to the Bahry action. The third of the preconditions for the operation of issue estoppel (often called the requirement of “mutuality”) is not present.

[65]         The plaintiffs argue, however, that a court has discretion to prevent a party from relitigating an issue even where the condition of mutuality is not present. They say that this discretion arises out of the flexible doctrine of abuse of process discussed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

[66]         Toronto v. C.U.P.E. dealt with the right of an employee of the City who had been convicted of sexual assault in criminal proceedings to contend, in a subsequent labour arbitration, that the assault did not occur.

[67]         The Court first considered the question of whether the doctrine of issue estoppel should be modified by removing the mutuality requirement. While noting that the mutuality requirement has come under criticism, the Court also recognized that simply abolishing the requirement would lead to unfairness in a number of cases. At para. 32, the majority found “no need to reverse or relax the long-standing application of the mutuality requirement”.

[68]         The Court did, however, find that the inherent discretion of courts to prevent an abuse of their processes could be used to preclude relitigation of an issue. At para. 37, Arbour J. for the majority said:

[37]      In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added by Arbour J.]

As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. ...

[69]         At para. 38, the Court cited, with approval, a passage from pp. 347-48 of Donald J. Lange, The Doctine of Res Judicata in Canada (Markham, Ontario: Butterworths, 2000):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[70]         In accepting that the doctrine of abuse of process can be used to prevent a party from relitigating an issue, even when the mutuality requirement of issue estoppel is not present, the Court stated that the focus of the doctrine of abuse of process is on the integrity of the adjudicative functions of courts. It summarized the position at para. 51:

[51]      Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[71]         Allowing a party to relitigate an issue that has been finally determined in previous proceedings, then, challenges the integrity of the adjudicative function of the courts in two respects. First, the duplication of efforts results in inefficient use of judicial resources. This inefficiency directly impacts the ability of the courts to function. It also tends to diminish public respect for the judicial process. Second, in opening up the possibility of inconsistent findings of fact, relitigation of an issue diminishes the credibility authority of judgments.

[72]         These challenges to the integrity of the adjudicative functions of the court occur when a court is asked, in litigation, to come to a different finding of fact on an issue than was reached in previous litigation. There are situations in which overriding concerns of fairness to the parties require such challenges to be tolerated. The Supreme Court of Canada in Toronto v. C.U.P.E. recognized, however, that a robust doctrine of abuse of process by relitigation means that such challenges may be avoided where there are no such fairness concerns.

[73]         If the issue of legal non-conforming use had been before the court in Bahry, it is arguable that relitigating it in the current case would amount to an abuse of the court’s processes. Before accepting that argument, however, a court would have to reach the conclusion, based on evidence, that the legal status of the Petrelli unit is the same as that of the Bahry unit. Reaching that conclusion might not be as straightforward as it might appear at first glance. Because the legality of a non-conforming use may depend on its precise location and extent, a minor difference in the siting of the two units could conceivably allow one to constitute a legal non-conforming use of land even though the other was not.

[74]         Given that it is clear that the issue of legal non-conforming use was not before the court in Bahry, it is unnecessary to examine this question further. The doctrine of abuse of process by relitigation, to the extent that it is analogous to issue estoppel, simply does not arise in this case.

Cause of Action Estoppel and Abuse of Process

[75]         The plaintiffs say that even if the issue of non-conforming use was not before the court in Bahry, the defendants’ reliance on it in this case may still amount to an abuse of process. They contend that the applicable principle is that enunciated in Henderson v. Henderson (1843), 3 Hare 100 at 115:

[W]here a given matter becomes the 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 might have been brought forward as part of the subject in contest, but 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, and which the parties, exercising reasonable diligence, might have brought forward at the time.

[76]         While the plaintiffs acknowledge that they cannot rely on the doctrine of res judicata directly (because the mutuality requirement is not satisfied), they say that the expanded doctrine of abuse of process by relitigation discussed in Toronto v. C.U.P.E. encompasses the sort of claims discussed in Henderson.

[77]         In my view, Toronto v. C.U.P.E. does not extend as far as the plaintiffs suggest. In that case, the Supreme Court of Canada was considering whether the doctrine of abuse of process was available to prevent a party from litigating a matter that, but for the requirement of mutuality, would have fallen within the branch of res judicata known as issue estoppel. The Court recognized, at para. 23, there is a separate branch of res judicata known as “cause of action estoppel”.

[78]         The distinction between the two branches of res judicata was briefly noted by Dickson J. in Angle at 254:

[Res judicata] has two species. The first, “cause of action estoppel”, precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction … The second species of estoppel per rem judicatam is known as “issue estoppel”, a phrase coined by Higgins J. of the High Court of Australia in Hoystead v. Federal Commissioner of Taxation (1921), 29 C.L.R. 537, at p. 561:

I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it “issue-estoppel”).

[79]         In Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 at 330 (C.A.), Cromwell J.A. (as he then was) said this about the two branches of res judicata:

[21]      Res judicata is mainly concerned with two principles. First, there is a principle that “... prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.” : see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1991) at p. 997. The second principle is that parties must bring forward all of the claims and defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred from asserting them in a subsequent action. This “...prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.”: ibid at 998. Cause of action estoppel is usually concerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlier litigation.

[80]         The two branches of res judicata have much in common. As Lord Keith of Kinkel said in Arnold v. National Westminster Bank Plc., [1991] 2 A.C. 93 at 110, “[e]stoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process”.

[81]         That said, there is a subtle difference in focus between the two branches of res judicata. Cause of action estoppel is focussed primarily on fairness to litigants. The idea behind it is that a party should not be “twice vexed” with litigation, and should be entitled to deal with the entirety of the opposite party’s case within a single piece of litigation. Issue estoppel, on the other hand, as discussed in Toronto v. C.U.P.E., is primarily concerned with the integrity of the judicial system – the efficiency of the trial process and the authority and credibility of judicial findings.

[82]         In identifying the primary focus of each branch of res judicata, I do not suggest that there is no overlap between them. Some cases involving issue estoppel will raise concerns about fairness to litigants, and some cases of cause of action estoppel will raise concerns about the integrity of the judicial system. My point is merely that, because the primary focus of each branch of res judicata is different, it is not appropriate to assume that what is said about one branch applies equally to the other.

[83]         The rule in Henderson v. Henderson is connected to cause of action estoppel rather than issue estoppel. Its primary focus is on the unfairness that a litigant faces in having to litigate matters twice. Litigants who were not involved in the previous proceedings cannot claim to have been “twice vexed”, nor can they complain that the entirety of the opposite party’s case against them has not been presented in a single piece of litigation. Mutuality will typically be a key component in the unfairness that founds cause of action estoppel.

[84]         The specific concerns addressed in Toronto v. C.U.P.E. are not necessarily engaged by the rule in Henderson v. Henderson. The efficiency of the court system is not always challenged, because the court may not be asked to re-decide an issue that has been fully canvassed before it on a previous occasion. Nor is the authority or credibility of a previous finding of fact placed in doubt, because no attempt is being made to have the court reach a contrary factual conclusion on an issue that it has already decided.

[85]         For these reasons, where the rule in Henderson v. Henderson forms the basis for an argument of abuse of process, a court must look beyond Toronto v. C.U.P.E. to determine whether there is any basis on which to conclude that the process of the court is being abused.

[86]         In the case before us, the trial court was not being asked to re-consider an issue that had previously been litigated, nor was it being asked to make primary findings of fact that were incompatible with previous findings. Further, the plaintiffs can point to no aspect of the proposed defence that could be said to be abusive of the process. The defendant has not, for instance, reaped an advantage in the earlier litigation by refraining from raising the non-conforming use issue. It has not committed a fraud on the court. It did not keep the Petrellis from joining in the Bahry action by suggesting that Bahry was a test case.

[87]         I do not suggest that these various examples of conduct that might amount to an abuse of process are exhaustive. In a case such as the present, however, where the principles set out in Toronto v. C.U.P.E. are not directly applicable, the court must examine the situation carefully to determine whether there is anything about it that constitutes an abuse. I am unable to find anything of that sort in this case.

[88]         In my view, the chambers judge erred in finding that the defendant’s attempt to raise the defence of legal non-conforming use was an abuse of the court’s process. I would allow the appeal and set aside the order of the chambers judge. The matter should be remitted to the Supreme Court for a new trial.

“The Honourable Mr. Justice Groberman”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Madam Justice Neilson”