Bjarnarson (H.R.) v. Manitoba

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Monnin, C.J.M., Hall and Philp, JJ.A.
• Citation: (1987), 50 Man.R.(2d) 178 (CA),1987 CanLII 5396 (MB CA),45 DLR (4th) 766,[1988] 1 WWR 422,[1987] CarswellMan 193,[1987] MJ No 576 (QL),21 CPC (2d) 302,50 Man R (2d) 178,8 ACWS (3d) 118
• Date: 30 November 1987

Bjarnarson v. Man. (1987), 50 Man.R.(2d) 178 (CA)

MLB headnote and full text

Haldar Robert Bjarnarson and Olive Mae Bjarnarson (plaintiffs) v. Government of Manitoba (defendant)

(Suit No. 269/87)

Indexed As: Bjarnarson (H.R.) v. Manitoba

Manitoba Court of Appeal

Monnin, C.J.M., Hall and Philp, JJ.A.

November 30, 1987.

Summary:

A farmer brought an action for damages against the Province of Manitoba for damage caused to his farmland by flooding as a result of water drains constructed by the province.

The Manitoba Court of Queen's Bench, in a decision reported (1984), 31 Man.R.(2d) 161, held the province responsible for the damages (quantum of damages was not in issue). The province appealed.

The Manitoba Court of Appeal, in a decision reported in 37 Man.R.(2d) 97, dismissed the appeal. Subsequently, the farmer's brother, who lived on land adjacent to the farmer, also commenced an action against the province for damages as a result of flooding on the brother's land. The province, relying on the same defences that it raised in the farmer's action, disputed the claim of negligence made by the brother. The brother applied to strike out the portions of the province's statement of defence that denied liability on the ground that the province was estopped from denying liability since it was already held liable in the farmer's litigation.

The Manitoba Court of Queen's Bench, in a decision reported in 48 Man.R.(2d) 149, allowed the brother's application to strike. The court held that the doctrine of issue estoppel applied, notwithstanding that the brother was not privy to the farmer's litigation, because the province previously had a full and fair opportunity to litigate the case and the issues were decided finally and conclusively against the province. The province appealed.

The Manitoba Court of Appeal dismissed the appeal.

Estoppel - Topic 386

By record - Res judicata - As a bar to subsequent proceedings - Issues decided in prior proceedings - The trial court stated that under Canadian case law in order for issue estoppel to apply, inter alia, there must be mutuality (i.e. the same parties or their privies must be involved in the second litigation) - The court pointed out that this requirement has been relaxed in the United States and England and agreed that it should be relaxed in Canada - The court agreed therefore that if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity to deal with the whole case, then that issue must be taken as being finally and conclusively decided against him even if the issue is raised subsequently by a party not privy to the litigation - The Manitoba Court of Appeal agreed.

Estoppel - Topic 386

By record - Res judicata - As a bar to subsequent proceedings - Issues decided in prior proceedings - A farmer successfully sued the Province of Manitoba for damages for flooding caused by the province's negligence - The decision was upheld on appeal - The farmer's brother, an adjacent landholder, subsequently sued the province for similar damages arising out of the same flooding - The province denied liability, raising the same defences it used against the farmer - The brother sought to have portions of the defence struck on the ground of issue estoppel - The province argued that estoppel was inapplicable because the brother was not privy to the litigation by the farmer (lack of mutuality) - The Manitoba Court of Appeal affirmed that the province's defences should be struck, holding that issue estoppel applied notwithstanding the lack of mutuality, where the province already had a full and fair opportunity to litigate the issues and the issues were finally and conclusively decided against the province.

Cases Noticed:

Bjarnarson v. Manitoba (1984), 31 Man.R.(2d) 161, affd. 37 Man.R.(2d) 97, refd to. [para. 1].

Solomon v. Smith and Montreal Trust Co. (1987), 49 Man.R.(2d) 252, refd to. [para. 4].

Counsel:

E.W. Olson, Q.C., and E.D. Kelly, for the appellant;

D.H. Ringstrom, for the respondents.

This appeal was heard before Monnin, C.J.M., Hall and Philp, JJ.A., of the Manitoba Court of Appeal on November 30, 1987, when the following decision was delivered for the court by Monnin, C.J.M.