Wallster v. Erschbamer et al., (2013) 334 B.C.A.C. 120 (CA)

• Judge: Hall, Tysoe and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 17, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 334 B.C.A.C. 120 (CA);2013 BCCA 76

Wallster v. Erschbamer (2013), 334 B.C.A.C. 120 (CA);

    572 W.A.C. 120

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. FE.033

Miriam Erschbamer and Robert Walker Bowe (respondents/plaintiffs) v. Suzanne Marie Wallster (appellant/defendant)

(CA039912; 2013 BCCA 76)

Indexed As: Wallster v. Erschbamer et al.

British Columbia Court of Appeal

Hall, Tysoe and D. Smith, JJ.A.

February 20, 2013.

Summary:

The parties were neighbours. The dispute involved a restrictive covenant and an easement registered against the defendant's property. The defendant decided to renovate her house. She petitioned to have both the restrictive covenant and the easement cancelled or modified.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1619, dismissed the petition. The defendant appealed.

The British Columbia Court of Appeal, in a decision reported at 299 B.C.A.C. 21; 508 W.A.C. 21, dismissed the appeal. The defendant went forward with the renovation. The plaintiffs commenced a second proceeding, asserting that the renovated house violated the terms of both the restrictive covenant and the easement. The defendant responded to their claim. The plaintiffs applied to strike numerous paragraphs of the defendant's response that set out potential defences.

The British Columbia Supreme Court, on the doctrines of res judicata or abuse of process, struck two potential defences: (i) the restrictive covenant was amended by the conduct of the original parties to the covenant, and (ii) the restrictive covenant should be interpreted in accordance with the bylaws in effect at the time it was entered into. The defendant appealed.

The British Columbia Court of Appeal allowed the appeal, in part. The plaintiffs succeeded in upholding the striking of the paragraph alleging that the restrictive covenant had been amended prior to the hearing of the first proceeding.

Estoppel - Topic 376

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - General principles - The British Columbia Court of Appeal reviewed the general principles of the doctrine of res judicata - "The doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters." - In the present appeal, it was not asserted that the issues the defendant wished to raise as defences were questions decided in the first proceeding - Accordingly, it was not necessary to give further consideration to issue estoppel - See paragraphs 12 and 13.

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - [See first Estoppel - Topic 379 ].

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - The British Columbia Court of Appeal, with respect to cause of action estoppel, stated that "[a]lthough it is referred to as cause of action estoppel, the principle applies to defences as well as claims. ... Hence, cause of action estoppel can apply in situations where the estopped litigant is the defendant in the first proceeding and the plaintiff in the second proceeding." - The converse situation existed here, where the estopped litigant was the plaintiff (petitioner) in the first proceeding and the defendant in the second proceeding - "Nevertheless, it seems to me, as a matter of principle, that the converse must be true. A defendant should not be permitted to raise, as a defence, an issue which could have and should have been raised in a previous proceeding between the same parties. I do not accept the defendant's argument that cause of action estoppel is inapplicable simply because the party seeking relief in each of the two proceedings is different." - See paragraphs 15 to 17.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - This appeal arose from an order made in the second of two proceedings between the parties - The dispute involved a restrictive covenant and an easement registered against the defendant's property - The chambers judge, on the basis of the doctrine of res judicata, struck two potential defences: (i) the restrictive covenant was amended by the conduct of the original parties to the covenant, and (ii) the restrictive covenant should be interpreted in accordance with the bylaws in effect at the time it was entered into - The British Columbia Court of Appeal allowed the defendant's appeal in part - The potential interpretation defence should not have been struck - There was no need for the interpretation of the restrictive covenant to have been an issue in the first proceeding - The issue had arisen in the second action as a result of the plaintiffs' allegations that the defendant's reconstructed house violated the restrictive covenant - See paragraphs 21 to 24.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - The defendant argued cause of action estoppel was inapplicable because the nature of the two proceedings was fundamentally different - The British Columbia Court of Appeal disagreed - "In my opinion, the subject matters of the two proceedings are sufficiently similar for cause of action estoppel to apply. Both relate to the renovation of the defendant's home and the restrictive covenant benefitting the plaintiffs. In the first proceeding, the defendant was attempting to have the covenant cancelled or modified in order to permit her to reconstruct her house to a height prohibited by the covenant. In the second proceeding, the plaintiffs are alleging that the defendant reconstructed her house to a height that is prohibited by the covenant. Issues relating to the prior amendment of the covenant that should have been raised in the first proceeding should not be allowed to be raised in the second proceeding." - See paragraphs 25 and 26.

Estoppel - Topic 379.1

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action estoppel v. issue estoppel - [See Estoppel - Topic 376 ].

Estoppel - Topic 387

Estoppel by record - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See second Estoppel - Topic 379 ].

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - [See second Estoppel - Topic 379 ].

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action or matter between same parties - [See second Estoppel - Topic 379 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - This appeal arose from an order made in the second of two proceedings between the parties - The dispute involved a restrictive covenant and an easement registered against the defendant's property - The chambers judge, on the basis of the doctrine of res judicata or the doctrine of abuse of process, struck paragraph 3 of the defendant's response to the claim, namely, that the restrictive covenant was amended by the conduct of the original parties to the covenant - The British Columbia Court of Appeal held that, even if cause of action estoppel was not technically available in the circumstances, it was nevertheless open to the chambers judge to strike paragraph 3 as being an abuse of process by relitigation - The issue ought reasonably to have been raised in the first proceeding - It would be an abuse of the court's process to allow the defendant to raise it as a defence in the second proceeding - See paragraphs 29 to 31.

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 10].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 10].

Cliffs Over Maple Bay Investments Ltd., Re, [2011] 8 W.W.R. 266; 304 B.C.A.C. 116; 513 W.A.C. 116; 2011 BCCA 180, refd to. [para. 10].

Petrelli v. Lindell Beach Holiday Resort Ltd. (2011), 310 B.C.A.C. 196; 526 W.A.C. 196; 340 D.L.R.(4th) 733; 2011 BCCA 367, refd to. [para. 10].

Shuswap Lake Utilities Ltd. et al. v. Comptroller of Water Rights (B.C.) (2008), 255 B.C.A.C. 106; 430 W.A.C. 106; 80 B.C.L.R.(4th) 211; 2008 BCCA 176, refd to. [para. 10].

Shuswap Lake Utilities Ltd. v. Mattison - see Shuswap Lake Utilities Ltd. et al. v. Comptroller of Water Rights (B.C.).

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, refd to. [para. 13].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 13].

Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313, refd to. [para. 14].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321; 1997 NSCA 153, refd to. [para. 14].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 15].

Bjarnarson (H.R.) v. Manitoba (1987), 48 Man.R.(2d) 49; 38 D.L.R.(4th) 32 (Q.B.), affd. (1987), 50 Man.R.(2d) 178; 45 D.L.R.(4th) 766 (C.A.), refd to. [para. 15].

Mohl v. University of British Columbia (2006), 222 B.C.A.C. 258; 368 W.A.C. 258; 2006 BCCA 70, dist. [para. 25].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (3rd Ed. 2010), pp. 137 to 138 [para. 16]; 215 to 216 [para. 30].

Counsel:

M.E. Fancourt-Smith and M.A. De Vera, for the appellant;

J.L. Straith, for the respondents.

This appeal was heard at Vancouver, British Columbia, on January 17, 2013, before Hall, Tysoe and D. Smith, JJ.A., of the British Columbia Court of Appeal. In reasons written by Tysoe, J.A., the Court delivered the following judgment, dated February 20, 2013.