Executive Summary: Key Legal and Evidentiary Issues

• The Defendant appealed the dismissal of its application to strike the Plaintiff's wrongful dismissal claim as an abuse of process under Rule 3.68.

• Central dispute involved whether a brief two-week overlap between a Court of Justice Civil Claim and a Court of King's Bench Action constitutes duplicitous proceedings.

• Interpretation of Rule 3.68 was contested regarding whether the word "may" mandates striking or confers judicial discretion.

• Application of stare decisis was challenged, with the Defendant arguing the Applications Judge failed to follow binding precedent from German v Major and Edmonton Northlands.

• Prejudice to the Defendant was analyzed as a factor in determining whether abuse of process occurred.

• The standard of review for an appeal of an Applications Judge decision to a Justice of the Court is correctness.

Background of the wrongful dismissal action

Mr. Napoleon Richard was terminated from his employment with John's Sandblasting & Painting Ltd on August 8, 2022. Through his counsel, he initially filed a Civil Claim for wrongful dismissal in the Court of Justice (COJ) on June 19, 2024. The Civil Claim was served on the Defendant by email on June 21, 2024, and service was acknowledged by the Defendant's former legal counsel on July 17, 2024. Although the Civil Claim pleaded damages in excess of the COJ's jurisdictional maximum of $100,000, counsel later reassessed the damages and determined that an action in the Court of King's Bench (KB) was necessary to preserve Mr. Richard's full entitlements.

Commencement of the King's Bench action

Due to the pressing limitation date, the KB Action was commenced on August 1, 2024. It is accepted that the KB Action covers the exact same subject matter as the Civil Claim. The Civil Claim was formally discontinued on August 15, 2024. Since that date, there has been only one extant action. Both the Notice of Withdrawal of the Civil Claim and the Statement of Claim in the KB Action were served upon the Defendant's former counsel at the same time and under the same letter dated August 20, 2024. The former counsel acknowledged service of both and asked that no steps be taken in the KB Action without notice. No Dispute Note had been filed and no steps taken by the former counsel in the Civil Claim.

The striking application and the decision under appeal

A Statement of Defence in the KB Action was filed by the former counsel on December 19, 2024. Beyond that, no steps appear on the Court file to have been taken until September 11, 2025. On that date, the Defendant changed counsel to its current counsel, who brought the striking out application before the Applications Judge. The Applications Judge dismissed the striking application, finding that no prejudice accrues to the Defendant where the Plaintiff's Civil Claim is subsumed by a subsequent KB Action, and that notwithstanding any short period of overlap, there is no abuse of process because there is currently only one action before the Court.

The Defendant's arguments on appeal

The Defendant argued that the word "may" as used in Rule 3.68 confers a power to be exercised, thus requiring the Court to strike out the action if the necessary condition is present, and that the fact of duplicity, however temporary, establishes the necessary condition. The Defendant relied on precedents including German v Major and Edmonton Northlands v Edmonton Oilers Hockey Club for the proposition that duplicate proceedings are not permitted and constitute an abuse of process, which must result in the Court striking the second action. The Defendant further contended that the Applications Judge failed to apply stare decisis or binding legal precedent when she dismissed the striking application, and that the Court's analysis of duplicitous proceedings should focus on preventing abuse of its own process, not prejudice or lack of prejudice to either party. The Defendant argued that the mere overlap in time of existence of both the Civil Claim and the KB Action is sufficient to invoke the rule against duplicitous proceedings.

The Plaintiff's response

The Plaintiff argued that the words used in Rule 3.68 confer discretion and do not dictate a result, pointing to the language "If the circumstances warrant …" that precedes the word "may" which itself conveys discretion. The Plaintiff emphasized that the present case is distinguishable from the precedents cited by the Defendant because, unlike those cases, there is presently only one action for a particular cause of action before any Court. The Plaintiff noted that it is an abuse of process where a claimant seeks to prosecute duplicitous actions at the same time, but in the present case, the Civil Claim was withdrawn before the Statement of Claim was served. The Plaintiff also argued that whether the Defendant is prejudiced by continuation of the new action is part of the abuse of process analysis, relying on Toronto (City) v CUPE, Local 79.

The Court's analysis on stare decisis

Justice Mah agreed that stare decisis is a foundational principle that assures stability and coherence in the law. However, the Court found that in neither German nor Edmonton Northlands (nor in the two other cases cited by the Defendant—Urban Landmarks and Grabowski) was the Court facing a situation where the Plaintiff had chosen to deliberately reduce two concurrent actions to one, seeking to proceed with only the sole surviving action. During the hearing, counsel for the Defendant conceded that the cases he cited all involved two subsisting actions for the same matter at the point in time the Court was asked to strike the second action. The Court noted that German is not even a case about duplicitous actions but rather involved the old Rule 129 as authority for striking a hopeless action. The key concept in both German and Edmonton Northlands is multiple prosecution or the conduct of concurrent actions by the same Plaintiff against the same Defendant for the same cause of action, where the Defendant is required to defend the same matter on two different fronts.

The distinguishable nature of the present case

The Court observed that while there was overlap of about two weeks in the life of each action, the first action was discontinued (without the Defendant ever having to take steps) before the second action was even brought to the Defendant's attention. At any given time, the Defendant was only required to defend on a single front. Justice Mah illustrated the untenable nature of the Defendant's proposed rule through hypothetical scenarios demonstrating that if a law firm employee filed a Discontinuance first and two minutes later filed the Statement of Claim, the Defendant could not complain, but if the employee had taken those steps in reverse order, the Statement of Claim would constitute an abuse of process under the Defendant's proposed rule. The Court concluded that such rigid legal formalism operates against fair outcomes, which is the ultimate purpose of the justice system.

The role of prejudice and discretion

The Court agreed with Plaintiff's counsel that the presence or not of prejudice is a factor in determining whether abuse of process has occurred. In Toronto (City) v CUPE, the Supreme Court of Canada expressly adopted the principle that 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. Justice Mah found that permitting the Plaintiff's KB Action to continue is not in any way manifestly unfair to the Defendant, nor does its continuation in some other way bring the administration of justice into disrepute. The brief period of two weeks during which both the Civil Claim and the KB Action were alive does not amount to a misuse of the Court's process because the Civil Claim was discontinued before the Statement of Claim was served, during the two weeks nothing was done to advance either action, the Defendant became aware of the KB Action only after the Civil Claim was terminated, and the Defendant at all times only had to respond to one action.

Ruling and outcome

Justice Mah dismissed the appeal, finding that the Applications Judge was correct in concluding that no abuse of process occurred on the facts of this case and did not ignore established and binding principles of law in reaching that conclusion. The Court held that legal precedents should not be applied in a rote and rigid manner that does not consider differences in facts and circumstances, as it could lead to unjust or unintended results. Mr. Napoleon Richard (Plaintiff/Respondent) was awarded his costs of the appeal under Schedule C as a contested Chambers Application requiring a brief [Item 7(1)], payable forthwith. No specific monetary amount for the underlying wrongful dismissal claim was determined in this decision, as it addressed only the procedural appeal regarding the striking application.