Doering v. Grandview (Town), (1975) 7 N.R. 299 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Citation: (1975), 7 N.R. 299 (SCC),[1975] CarswellMan 64,7 NR 299,[1976] 1 WWR 388,61 DLR (3d) 455,[1976] 2 SCR 621,[1975] SCJ No 93 (QL),1975 CanLII 16 (SCC)
• Court: Supreme Court (Canada)
• Date: 21 May 1975

Doering v. Grandview (1975), 7 N.R. 299 (SCC)

MLB headnote and full text

Doering v. Town of Grandview

Indexed As: Doering v. Grandview (Town)

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

October 27, 1975.

Summary:

This case arose out of a claim for damages for water damage arising out of the construction of a dam by the defendant municipality. The plaintiff commenced an action against the municipality for water damage occurring in 1967 and 1968. The plaintiff's action was dismissed because of the failure of the plaintiff to prove that his damages were caused by the construction of the dam. The landowner subsequently commenced a second action against the municipality for water damage occurring in 1969, 1970 and 1971. In the second action the plaintiff alleged that his damages were caused by water saturation of his land due to the construction of the dam by the municipality. The defendant municipality applied by way of motion for a stay of the plaintiff's second action. The Manitoba Supreme Court granted the municipality a stay of the plaintiff's second action.

On appeal to the Manitoba Court of Appeal the appeal was allowed and the judgment of the Manitoba Supreme Court was set aside.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Manitoba Court of Appeal was set aside and the judgment of the Manitoba Supreme Court was restored. The Supreme Court of Canada stated that the plaintiff made the same claim in both actions and that the doctrine of res judicata applies to all points that might have been raised in the previous litigation - see paragraph 7. The Supreme Court of Canada stated that the plaintiff did not allege in the second action that the new theory of soil saturation could not have been ascertained by reasonable diligence at the time when the first action was commenced - see paragraph 13.

Laskin, C.J.C., Spence, Pigeon and Beetz, JJ., dissenting, in the Supreme Court of Canada, would have dismissed the appeal and would have affirmed the judgment of the Manitoba Court of Appeal. Pigeon, J., stated that the plaintiff's claim for damages occurring in 1969, 1970 and 1971 due to water saturation was not litigated in the first action - see paragraph 22. Pigeon, J., stated that a different cause of action was raised in the plaintiff's second action - see paragraph 24.

Estoppel - Topic 386

Estoppel by record - Plea of res judicata as a bar to subsequent proceedings - What constitutes the subject of previous proceedings - A landowner commenced an action against a municipality for water damage in 1967 and 1968 arising out of the construction of a dam by the municipality - The landowner's action was dismissed - The landowner subsequently commenced a second action against the municipality for water damage in 1969, 1970 and 1971 arising out of the construction of the same dam - The landowner alleged that the second action was commenced because of new expert evidence as to the chain of causation between the landowner's damages and the construction of the dam - The landowner claimed that unknown to him during the first action the water damage was in fact caused by saturation rather than flooding as claimed in the first action - The Supreme Court of Canada affirmed an order which stayed the landowner's second action - The Supreme Court of Canada stated that the same claim was made by the landowner in both actions and that the doctrine of res judicata applies not only to points decided in a judgment but also to every point which properly belonged to the subject of the litigation and which might have been raised by the parties - See paragraph 7.

Cases Noticed:

Henderson v. Henderson (1843), 3 Hare 100, folld. [para. 7].

Ord v. Ord, [1923] 2 K.B. 432, folld. [para. 7].

Hall v. Hall (1959), 15 D.L.R.(2d) 638, folld. [para. 8].

Phosphate Sewage Co. v. Molleson (1879), 4 App. Cas. 801, folld. [para. 9].

Fenerty v. The City of Halifax, 53 N.S.R. 457, folld. [para. 10].

Fidelitas Shipping Co. Ltd. v. V/O Exportchleb, [1965] 2 All E.R. 4, folld. [para. 11].

New Brunswick Ry. Co. v. British and French Trust Corporation, [1939] A.C. 1, refd to. [para. 13]; folld. [para. 21].

Ares v. Venner, [1970] S.C.R. 608, folld. [para. 26].

Frank v. Alpert, [1971] S.C.R. 637, folld. [para. 26].

Toronto General Trust Corp. v. Roman, 37 D.L.R.(2d) 16, folld. [para. 27].

Ladouceur v. Howarth, [1974] S.C.R. 1111, folld. [para. 29].

Witco Chemical Co. v. Oakville, [1975] 1 S.C.R. 273; 1 N.R. 453, folld. [para. 29].

Counsel:

Knox B. Foster and Rodney Stevenson, for the appellant;

Walter C. Newman, Q.C. and L.J. Lucas, for the respondent.

This appeal was heard by the Supreme Court of Canada on May 21, 1975. Judgment was delivered by the Supreme Court of Canada on October 27, 1975 and the following opinions were filed:

RITCHIE, J. - see paragraphs 1 - 15.

PIGEON, J., dissenting, - see paragraphs 16 - 30.

MARTLAND, JUDSON, DICKSON and de GRANDPRE, JJ. concurred with RITCHIE, J.

LASKIN, C.J.C., SPENCE, and BEETZ, JJ. concurred with PIGEON, J.