IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110811

Docket: M082810

Registry:
Vancouver

Between:

Laaljot Singh

Plaintiff

And

Kevin Orval
McHatten, Mercado Capital Corporation, Jarnail Singh Rai
and C. Keay Investments Ltd. DBA Ocean Trailer

Defendants

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

[1]            
The defendants bring this Rule 9-7 summary trial for an order dismissing
the plaintiff’s claim for damages arising out of a motor vehicle accident that
occurred on July 29, 2006. The plaintiff brought an action and obtained a
judgment in the Provincial Court of British Columbia (Small Claims Division) relating
to the same accident and the defendants contend the plaintiff is therefore
precluded from claiming again in relation to the same accident on the basis of res
judicata.

THE LAW

[2]            
The defendants claim that cause of action estoppel applies or
alternatively issue estoppel, and rely on the oft quoted passage of
Vice-Chancellor Wigram in Henderson v. Henderson (1843), 3 Hare 100, 67
E.R. 313, at 114-15:

In trying this question, I
believe I state the rule of the Court correctly, when I say that, where 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.

[3]            
The defendants also rely on the reasons for judgment of Madam Justice
Newbury in Cliffs Over Maple Bay (Re), 2011 BCCA 180:

[25]      The policy objectives underlying res judicata
generally are well-known and have been discussed at length in the jurisprudence
and in the academic context: see for example, Donald J. Lange, Res Judicata
in Canada (3rd ed., 2010), chapter 1; Henderson v. Henderson, supra;
Hoystead v. Taxation Commissioner [1926] A.C. 155 (J.C.P.C.); Angle
v. Minister of National Revenue [1975] 2 S.C.R. 248; and Danyluk v.
Ainsworth Technologies Ltd. 2001 SCC 44, [2001] 2 S.C.R. 460.  The
authors of Spencer Bower and Turner, The Doctrine of Res Judicata (4th
ed., 2009), state:

Two policies support the doctrine
of res judicata estoppel: the interest of the community in the
termination of disputes and the finality and conclusiveness of judicial
decisions; and the interest of an individual in being protected from repeated suits
and prosecutions for the same cause.  Maugham L.C. said:

The doctrine of estoppel is one
founded on considerations of justice and good sense.  If an issue has been
distinctly raised and decided in an action, in which the parties are
represented, it is unjust and unreasonable to permit the same issue to be
litigated afresh between the same parties or persons claiming under them.

[26]      Appellate courts in Canada have emphasized that the
importance of finality and the principle that a party should not be ‘twice
vexed’ (bis vixari) for the same cause, must be balanced against the
other “fundamental principle” (see [Hoque v. Montreal Trust Co. of Canada (1997)
162 N.S.R. (2d) 321 (C.A.)] at para. 21) that courts are reluctant to
deprive litigants of the right to have their cases decided on the merits: see Toronto
(City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77, at para. 55; Revane v. Homersham 2006 BCCA 8, 53
B.C.L.R. (4th) 76 (C.A.) at paras. 16-7; Lange at 7-8.

[27] Res judicata takes two forms in modern
practice, cause of action estoppel (still sometimes called res judicata)
and issue estoppel.  Lange summarizes them as follows:

In their simplest definitions,
issue estoppel means that a litigant is estopped because the issue has clearly
been decided in the previous proceeding, and cause of action estoppel means
that a litigant is estopped because the cause has passed into a matter adjudged
in the previous proceeding.  [At 1.]

The distinction was described in more elaborate terms by Lord
Denning, M.R. in Fidelitas Shipping Co., Ltd., v. V/O Exportchleb [1965]
2 All E.R. 4 (C.A.):

The law, as I understand it, is
this: if one party brings an action against another for a particular cause and
judgment is given on it, there is a strict rule of law that he cannot bring
another action against the same party for the same cause. Transit in rem
judicatam … But within one cause of action, there may be several issues
raised which are necessary for the determination of the whole case. The rule
then is that, once an issue has been raised and distinctly determined between
the parties, then, as a general rule, neither party can be allowed to fight
that issue all over again. The same issue cannot be raised by either of them
again in the same or subsequent proceedings except in special circumstances …
And within one issue, there may be several points available which go to aid one
party or the other in his efforts to secure a determination of the issue in his
favour. The rule then is that each party must use reasonable diligence to bring
forward every point which he thinks would help him. If he omits to raise any
particular point, from negligence, inadvertence, or even accident (which would
or might have decided the issue in his favour), he may find himself shut out
from raising that point again, at any rate in any case where the self-same
issue arises in the same or subsequent proceedings. … But this again is not
an inflexible rule. It can be departed from in special circumstances. … [At
8-9; quoted with apparent approval in Grandview v. Doering, infra.]

[28]      Although grounded in the same basic considerations,
each form involves, or has traditionally involved, criteria that have been
expressed in slightly different terms.  The traditional criteria for cause of
action estoppel, confirmed in Canada in [Angle v. Minister of National
Revenue, [1975] 2 S.C.R. 248] were summarized by Chief Justice Hewak in Bjarnarson
v. Manitoba (1987) 38 D.L.R. (4th) 32 (Man. Q.B.) at 34, aff’d. (1987)
45 D.L.R. (4th) 766 (Man. C.A.), as taken from Grandview v. Doering [1976]
2 S.C.R. 621:

1.         There
must be a final decision of a court of competent jurisdiction in the
prior action [the requirement of “finality”];

2.         The
parties to the subsequent litigation must have been parties to or in privy with
the parties to the prior action [the requirement of “mutuality”];

3.         The
cause of action and the prior action must not be separate and distinct; and

4.         The basis
of the cause of action and the subsequent action was argued or could have
been argued in the prior action if the parties had exercised reasonable
diligence.  [At para. 6; emphasis by Newbury J.]

…

[31]      Turning then to issue estoppel, I note the three
traditional “tests” adopted by the Supreme Court of Canada in Angle,
namely:

(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 proceedings in which the estoppel is raised, or their
privies. …  [At 254; emphasis by Newbury J.]

There is also the well-known formulation of issue estoppel
given by Middleton J.A. in McIntosh v. Parent [1924] 4 D.L.R. 420 (Ont.
C.A.):

When a question is litigated, the judgment of the Court is a
final determination as between the parties and their privies. Any right,
question, or fact distinctly put in issue and directly determined by a
Court of competent jurisdiction as a ground of recovery, or as an answer to a
claim set up, cannot be re-tried in a subsequent suit between the same parties
or their privies, though for a different cause of action. The right, question,
or fact, once determined, must, as between them, be taken to be conclusively
established so long as the judgment remains.  [At 422; emphasis by Newbury J.]

[4]            
The plaintiff respondent contends that the facts of this case are
concerned with cause of action estoppel, and that the fourth criteria has not
been met and therefore cause of action estoppel does not apply. Further or
alternatively, special circumstances exist here for the Court to exercise its
discretion and decline to apply the doctrine of res judicata.

[5]            
The plaintiff relies on several authorities including Innes v. Bui,
2010 BCCA 322. In that case both parties were driving motor vehicles that
collided. ICBC determined that Ms. Bui was solely responsible for the
collision. Ms. Bui was dissatisfied with the decision and brought an action
in Small Claims against ICBC for recovery of her increased insurance premiums. Ms. Bui
was persuaded that Ms. Innes was the proper defendant in the place of
ICBC. However, counsel for ICBC defended Ms. Innes in the Small Claims
action. At the same time Ms. Innes commenced an action in Supreme Court
for personal injuries. The judge in Small Claims after hearing the evidence of
both parties said that he could not choose between them and dismissed the
claim.

[6]            
In the Supreme Court action Ms. Bui successfully argued that Ms. Innes’
action should be dismissed on the basis of res judicata. Mr. Justice
Low for the Court of Appeal in allowing Ms. Innes’ appeal stated:

[18]      In Fournogerakis v. Barlow, 2008 BCCA 223,
(2008) 80 B.C.L.R. (4th) 290, Lowry J. A. stated this broad definition of the
defence of res judicata:

[16]      Where it applies, res
judicata serves as an equitable estoppel. Its purpose is to ensure justice
is done, prevent abuse of process, and fulfill the societal interest of
finalizing litigation.  The court retains a discretion to refuse to apply
the principle where in special circumstances a rigid application would
frustrate its purpose: Arnold v. National Westminster Bank Plc., [1991]
2 A.C. 93 (H.L.) at 109-111.

…

[33]      In the Small Claims action, Ms. Innes was the
wrong defendant.  She certainly was not a necessary defendant.  That
action was not based in tort.  It was either in contract or under statute,
or both, and the only issue raised by the pleadings was whether ICBC acted
properly or reasonably in administratively assigning responsibility for the
collision to Ms. Bui alone.  That was an issue only between Ms. Bui
and ICBC.  Ms. Innes apparently had no say about being substituted as
the defendant in place of ICBC.  She had no control over the conduct of
the action and she had no right of appeal independent of ICBC.  To say
that the judgment given in the Small Claims action should have the effect of
denying Ms. Innes the opportunity to present her own case stretches the
equitable defence of res judicata to limits which, in the interests of
justice, the defence should not be taken.  In that action, Ms. Innes
did not have her day in court in any real sense.

[34]      On this basis I question whether it is correct to
say that the parties, in reality, were the same in the two actions or that any
consideration of privy arises.

[35]      In any event, if all
the criteria for res judicata were met, I would think that this is a
special circumstances case in which the doctrine should not be applied.

[7]            
In British Columbia (Minister of Forests) v. Bugbusters Pest
Management Inc. (1998), 79 A.C.W.S. (3d) 304, 50 B.C.L.R. (3d) 1 (C.A.),
Mr. Justice Finch (as he then was) stated:

[32]      It must always be
remembered that although the three requirements for issue estoppel must be
satisfied before it can apply, the fact that they may be satisfied does not
automatically give rise to its application. Issue estoppel is an equitable
doctrine, and as can be seen from the cases, is closely related to abuse of
process. The doctrine of issue estoppel is designed as an implement of
justice, and a protection against injustice. It inevitably calls upon the
exercise of a judicial discretion to achieve fairness according to the
circumstances of each case.

[8]            
In Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460,
2001 SCC 44, Mr. Justice Binnie for the Supreme Court of Canada stated:

[33]      The rules governing issue estoppel should not be
mechanically applied.  The underlying purpose is to balance the public interest
in the finality of litigation with the public interest in ensuring that justice
is done on the facts of a particular case.  (There are corresponding
private interests.)  The first step is to determine whether the moving
party (in this case the respondent) has established the preconditions to the
operation of issue estoppel set out by Dickson J. in Angle [v.
Minister of National Revenue, [1975] 2 S.C.R. 248].  If
successful, the court must still determine whether, as a matter of discretion,
issue estoppel ought to be applied:  British Columbia (Minister
of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1
(C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97
(C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long
Term Disability Plan Trust Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56.

…

[80]      As a final and most important factor, the Court
should stand back and, taking into account the entirety of the circumstances,
consider whether application of issue estoppel in the particular case would
work an injustice.  Rosenberg J.A. concluded that the appellant had
received neither notice of the respondent’s allegation nor an opportunity to
respond.  He was thus confronted with the problem identified by
Jackson J.A., dissenting, in Iron v. Saskatchewan (Minister of the
Environment & Public Safety), [1993] 6 W.W.R. 1 (Sask. C.A.), at
p. 21:

The doctrine of res judicata, being
a means of doing justice between the parties in the context of the adversarial
system, carries within its tenets the seeds of injustice, particularly in
relation to issues of allowing parties to be heard.

Whatever the appellant’s various procedural mistakes in this
case, the stubborn fact remains that her claim to commissions worth $300,000
has simply never been properly considered and adjudicated.

[81]      On considering the
cumulative effect of the foregoing factors it is my view that the Court in its
discretion should refuse to apply issue estoppel in this case.

[9]            
In Evans v. Campbell (1993), 38 A.C.W.S. (3d) 153, 77 B.C.L.R.
(2d) 211 (C.A.), the plaintiff was a lawyer in a law firm when her employment
was terminated. She sued the defendants in Small Claims Court for $2,800
representing her share of the firm’s fees. The parties agreed to settle the
claim. While the plaintiff refused to sign a release of all claims, she signed
a consent dismissal of the Small Claims action. She then commenced an action in
Supreme Court for general, special, and aggravated damages, an accounting, a
declaration that she was entitled to commissions from the defendants on files
on which she performed work, and a declaration that the defendants had been
unjustly enriched. Mr. Justice Hutcheon for the Court of Appeal in
dismissing the defendants’ appeal found that several items claimed in the
prayer for relief, including the declarations, were beyond the jurisdiction of
Small Claims court and her claim was not barred by the rule in Henderson,
or res judicata.

THE FACTS

[10]        
The plaintiff Laaljot Singh was in a motor vehicle accident that
occurred on July 29, 2006 on the Alex Fraser Bridge when the vehicle he was
driving was rear ended by a 70 foot tractor trailer leased by the defendant
Jarnail Singh Rai and driven by the defendant Kevin Orval McHatten. Mr. Singh’s
infant daughter was a front seat passenger in his vehicle at the time of the
accident. The defendant Mercado Capital Corporation was the lessor of the
tractor trailer, and the defendant C. Keay Investments Ltd. was the owner of
the trailer attached to the tractor.

[11]        
The police and an ambulance attended the scene of the accident. The ambulance
crew report indicates that Mr. Singh reported injuries to his back and arm
from the accident and that his infant daughter possibly had stiffness
developing from the collision.

[12]        
On July 31, 2006 Mr. Singh completed an ICBC Customer Injury
Information – Insurance Claim Application form describing his injuries from the
accident as “neck, shoulders, left arm, lower back, left leg, left foot”.

[13]        
Mr. Singh was informed by ICBC on or about August 2, 2006 that ICBC
determined he was 100 percent at fault for the accident. As a result Mr. Singh
retained Gurjit Tiwana, a lawyer of the law firm Cobb St. Pierre Lewis to
assist him with disputing ICBC’s determination.

[14]        
On August 29, 2006 Ms. Tiwana wrote to ICBC stating that the law
firm had been retained by Mr. Laaljot Singh to represent him “with respect
to the above mentioned claim number,” that “Mr. Laaljot [sic]
wishes to dispute your decision regarding liability”, and that the firm was
drafting Mr. Singh’s claim which the firm intended to serve on ICBC.

[15]        
On September 27, 2006 Mr. Singh filed his Notice of Claim in the
Provincial Court of British Columbia (Small Claims Court) Surrey Registry (file
number 60386) against the defendants Kevin Orval McHatten and Jarnail Singh
Rai. Next to the portion on the form for “What Happened?” Mr. Singh’s claim
is described as follows:

On July 29, 2006 around 2:10 p.m.
the Claimant was driving his vehicle and was rear ended by a semi trailer
driven by the Defendant, Kevin Orval Mchatten. Jarnail Singh Rai is the owner
of the vehicle driven by Kevin Orval Mchatten. The Defendant was 100%
responsible for the collision. The Claimant was travelling in his lane on
Nordel Way making his way on to the Alex Fraser Bridge. As the claimant made
his way on to the bridge the traffic on the bridge slowed down and as the
Claimant slowed down, his vehicle was struck from behind by a semi trailer
bearing license plate no. 4893HE, driven by the Defendant, Kevin Orval
Mchatten. As a result of the collision the Claimant’s vehicle suffered damages.
The repair costs of the claimant’s vehicle was about $7045.85.

[16]        
Next to the part of the form for stating “How Much”, Mr. Singh’s
Notice of Claim notes:

[17]        
On November 29, 2006 a Reply was filed on behalf of the defendants.

[18]        
The Small Claims trial took place before Judge MacGregor on March 1,
2007. The parties were represented by counsel. A review of the transcript
discloses that what was in dispute was ICBC’s decision on liability, and the
resulting fact that Mr. Singh was required to pay a $300 deductible and an
increase in his ICBC insurance premiums.

[19]        
At the opening of the trial this exchange occurred:

Page 1

29   MS. TIWANA: By way of just a brief
opening, Your

30   Honour, the issue to be decided in this
case is

31   one of liability; in other words, who
was

32   responsible for the collision that
occurred on

33   Alex Fraser Bridge in July of 2006,
sorry, July

34   29, 2006. And Mr. Singh’s position
is that ICBC

35   wrongly decided the matter of liability
and that

36   the defendant was a hundred percent
responsible

37   for the motor-vehicle accident and not
him.

38   The claimant was travelling northbound
on

39   Nordel Way which merges onto Alex —

40   THE COURT: In not finding that the
defendant was —

41   MS. TIWANA: In not finding that the
defendant was

42   responsible.

43   THE COURT: The defendant, okay, not
finding. What

44   was the result of the ICBC decision on
liability?

45   MS. TIWANA: ICBC found that Mr. Singh
was a hundred

46   percent liable and Mr. Singh —

47   THE COURT: Okay, that Mr. Singh was
100 percent, not

Page 2

1    even 50-50, okay, so —

2    MS. TIWANA: No, not even 50-50. And
Mr. Singh is

3    saying —

4    THE COURT: So decided the claimant was a
hundred

5    percent liable, and you want it the
other way

6    around.

7    MS. TIWANA: I want it the other way
around, yes.

8    THE COURT: Okay, all right.

9    MS. TIWANA: We want the defendant
to be liable a

10   hundred percent, Your Honour to find
that the

11   defendant was a hundred percent liable;
in the

12   alternative, equally attribute liability 50-50.

[20]        
Ms. Tiwana then filed as an exhibit an estimate in the amount of
$7,045.84 from Dueck Landsowne Autobody relating to the damage to Mr. Singh’s
vehicle.

[21]        
At one point during his evidence Mr. Singh was referred to the
damage estimate, but Ms. Tiwana indicated that damages was not in issue,
“just liability”:

Page 10

36Q  And, sorry, you said the damages were
about

37   $7,000?

38A  Yes, 7,000.

39Q  And you get that from the estimate
report?

40A  Yes.

41   MS. TIWANA: Your Honour, as
indicated, the amount of

42   damages or the cost of the damages isn’t
of

43   issue, it’s just liability.

[22]        
The only witness for the claimant Mr. Singh was Mr. Singh who
testified through an interpreter. The witnesses who testified for the
defendants were Patrick Hood and Stephen Moore who are both truck drivers and
witnesses to the accident, and the defendant Mr. McHatten. The evidence of
the witnesses related to the cause of the accident. At the conclusion of the
evidence and closing arguments, Judge MacGregor gave reasons for judgment and
concluded that “this accident was caused by the negligence of Mr. McHatten,
and that liability falls 100 percent on Mr. McHatten for this accident”.

[23]        
There was then a lengthy exchange between counsel and the court on
whether damages was in issue. Mr. Kaatz, counsel for ICBC (as he described
himself) indicated that he understood the trial was only on the issue of
liability, and damages were to be determined later. Mr. Kaatz was also not
aware what ICBC had paid to repair Mr. Singh’s vehicle and asked that the
order reflect that the “costs of repairs covered by ICBC, rather than a dollar
amount”. Mr. Kaatz also took no issue with Ms. Tiwana’s statement
that Mr. Singh’s personal injuries were not in issue but were to be determined
later:

Page 89

24   THE COURT: Accordingly, I take it there
is no issue

25   as to damages?

26   MR. KAATZ: Well —

27   THE COURT: The claim of $7,045.84 has
been proven by

28   Mr. Singh. He will have judgment —

…

33   MR. KAATZ: Well, we, counsel and I,
didn’t discuss

34   damages. Usually in a liability only
trial we —

35   THE COURT: Okay.

36   MR. KAATZ: — adjourn liability, so
perhaps — is

37   that premature? I mean, ICBC will have
— the

38   normal procedure will be followed in
assessing

39   those damages and they’re always welcome
to

40   return.

41   THE COURT: Well, there’s still a claim
here.

42   MR. KAATZ: Yeah.

[24]        
Ms. Tiwana then informed the court after speaking to Mr. Singh
that his vehicle had been fully repaired. Mr. Kaatz then stated:

Page 90

45   MR. KAATZ: Well, we might be
jumping the gun. I

46   Think we’re going to — ICBC will — I
don’t

47   know, is the vehicle a write-off? Is it
not

Page 91

1    being repaired?

2    MS. TIWANA: No.

…

21   THE COURT: Well, I gather the repairs
have already

22   been done.

23   MS. TIWANA: Yeah, they have.

24   MR. KAATZ: But ICBC is funding that
and paying for

25   that.

26   MS. TIWANA: I think what had
happened is —

27   THE COURT: Yes.

28   MS. TIWANA: — Your Honour —

29   THE COURT: Yes.

30   MS. TIWANA: — his insurance went
up.

31   MR. KAATZ: So really the only —

32   THE COURT: Yes, okay.

33   MR. KAATZ: He already has money for
that. The only

34   — the only —

35   THE COURT: All right.

36   MR. KAATZ: It’s the insurance rate
that will now be

37   adjusted accordingly, so we don’t need
to —

38   THE COURT: Okay.

39   MR. KAATZ: — go any further and
that’s why I wasn’t

40   prepared to address that issue today.

41   MS. TIWANA: Yes.

42   THE COURT: All right. So, the —

43   MR. KAATZ: So —

44   THE COURT: There was no issue with
respect to the

45   damages.

46   MR. KAATZ: Because he already has a
repaired car.

47   THE COURT: Because the car has been
repaired now —

Page 92

1    MR. KAATZ: So we don’t need to go
further.

2    THE COURT: — there’s no issue, so the
— with

3    respect to the accident then, the defendant
— or

4    the defendant is responsible, the
claimant is

5    successful, and necessary adjustments to
Mr.

6    Singh’s insurance rates will then be
made

7    accordingly.

8    MR. KAATZ: That’s right, rather
than dealing with the

9    monies.

10   MS. TIWANA: However, however, Your
Honour, the —

11   THE COURT: But he’s out of pocket the
money right

12   now.

13   MS. TIWANA: Exactly, that’s what he
wants to address.

14   Fine, the $7,045 is covered by ICBC, but
he’s out

15   the filing fees, he’s out the servicing
fees.

16   THE COURT: Yes.

17   MS. TIWANA: And he’s, in fact, he’s
out $300

18   interpreter fees as well to come to
trial today.

…

26   THE COURT: — and interest?

27   MR. KAATZ: Because we haven’t
looked behind this

28   file. My understanding was that ICBC
paid. I

29   didn’t realize that he — don’t know the
extent

30   of his insurance or anything about his
insurance

31   details, but typically ICBC will pay
collision —

32   MS. TIWANA: My understanding, Your
Honour, is ICBC

33   covered the accident, put it on his
insurance

34   claim. His premiums went up.

35   MR. KAATZ: He’s already —

36   THE COURT: Okay. And he had to pay the
deductible.

37   MS. TIWANA: And he’s paying the
deductible and the

38   premiums as well as —

39   THE COURT: An increased premium.

40   MR. KAATZ: Right. So that’s what —

41   THE COURT: Oh, okay. So, but ICBC paid
for the —

42   MS. TIWANA: 300 deductible.

43   THE COURT: — expenses save the
300-dollar

44   deductible.

…

Page 96

…

11   THE COURT: Okay. But you told me
initially that

12   there was no issue when the exhibit went
in —

13   MR. KAATZ: Well —

14   THE COURT: — that that was the cost of
repair, and I

15   asked there was no issue —

16   MR. KAATZ: No, it’s my fault I
understand. I assumed

17   that that was ICBC’s document and then
realized

18   it wasn’t.

19   MS. TIWANA: And you didn’t
anticipate —

20   THE COURT: Okay.

21   MR. KAATZ: Yeah, I only thought we
were — yeah —

22   THE COURT: So I put repair costs —

23   MR. KAATZ: I didn’t get past the
liability —

24   THE COURT: Repair costs payable by ICBC.

25   MR. KAATZ: Yes.

26   THE COURT: That’s what I wrote at the
bottom.

27   MR. KAATZ: That’s — yeah, and then
for the 7,000

28   would be crossed out and initialled by
you.

29   THE COURT: So, and it’s bracketed, okay.

30   MR. KAATZ: Yes. But, so he can’t —
if the repair

31   costs are less than 7,000 —

32   THE COURT: Yes, I know. He’s not going
to get a

33   judgment for 7,000 for it.

34   MR. KAATZ: Right.

…

Page 97

9    THE COURT: Right. And it’s the
300-dollar deductible

10   that goes back to Mr. Singh, and, of
course,

11   whatever premium adjustment has been —

12   MR. KAATZ: Yes.

13   THE COURT: Okay, so I think that should
do it. Now

14   the formal — this is a record, this
isn’t the

15   formal judgment, so counsel can draft
the formal

16   judgment as you agree.

17   MR. KAATZ: Okay. I could — I’ll do it
—

18   THE COURT: If you wish to.

19   MS. TIWANA: Yes, please. Thank you.

20   THE COURT: Okay. And the formal
judgment, of course,

21   doesn’t have to have that amount in it.
Just can

22   see that all repair costs covered by —

23   MR. KAATZ: Okay.

24   THE COURT: — ICBC.

25   MR. KAATZ: Is that — is there a form
that we would

26   submit to the registry like that or —

27   THE COURT: Oh, I think you’ll have to
get that from

28   your firm or something.

29   MR. KAATZ: My firm is ICBC, by the way.

30   THE COURT: Oh, well, I’m sure ICBC knows
what form of

31   judgment they like to see.

32   MR. KAATZ: Actually — yeah.

[25]        
After the exchange with counsel, Judge MacGregor concluded:

[38]      THE COURT: I will order
then, to back up, that Mr. Singh receive the $300 deductible and any
difference in insurance rate or premium that has been charged to him as a
result of this accident; that he receive the costs of the claim, the $156 in
filing fees, $40 in service fees, and $300 for the cost of an interpreter.

[26]        
The Trial Record Order form provides that the order made was:

LIABILITY 100% TO MR. McHATTEN
REPAIR COSTS PAYABLE BY ICBC
$300 DEDUCTIBLE AND PREMIUM ADJUSTMENT
TO BE PAID FROM ICBC TO CLAIMANT

T. KAATZ TO DRAFT JUDGMENT

[27]        
On June 27, 2008 the plaintiff Mr. Singh commenced this action and
claims that the collision was caused or contributed to by the fault or
negligence of the defendant Mr. McHatten, and that the remaining
defendants were negligent in failing to maintain the tractor and trailer in
proper mechanical condition. The plaintiff alleges that as a result of the
collision he sustained personal injury, loss and damage, including injuries to
his neck, back, shoulders, left arm, left leg, and left foot. He claims general
damages, special damages, interest and costs.

[28]        
On July 2, 2009 the defendants filed a statement of defence and allege
in para. 5 that “the plaintiff sued the defendants for damages in Small
Claims Court relating to the accident on July 29, 2006. Judge MacGregor made an
order with respect to the plaintiff’s claim on March 1, 2005 and therefore, the
matter is res judicata.”

POSITIONS OF THE PARTIES

[29]        
The defendants contend that the criteria are met for both issue estoppel
and cause of action estoppel. The plaintiff’s claims in both his Small Claims
action and this action arise out of the same accident. Judge MacGregor found
that the defendant driver Mr. McHatten was responsible for the accident
and awarded damages. The damages may not have been as significant as if Mr. Singh
had advanced a claim for damages for personal injury, but he was obliged to
bring all matters before the court at that time.

[30]        
The plaintiff argues that the facts of the case concern cause of action
estoppel and the fourth criteria has not been met. The transcript of the
proceedings in Small Claims Court show that the only issue considered was
liability and the issue of damages was to be dealt with at a later date.
Moreover, at the time the Small Claims action was commenced in September 2006,
less than two months after the accident, it was far too early for an assessment
of any personal injury damages, and any damages may be beyond the monetary limit
of Small Claims Court. Alternatively, based on the rule in Henderson
there are special circumstances that exist and the court should exercise its
discretion and decline to apply the plea of res judicata.

ANALYSIS AND CONCLUSION

[31]        
In my view the cause of action in the prior Small Claims action is
distinct from the cause of action in this Court. While the Notice of Claim filed
by the plaintiff in Small Claims Court claimed “vehicle damage & repair
costs”, it is clear on a review of the transcript of the proceedings that the
plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for
repair costs because ICBC had paid the repair costs. The primary issue was
ICBC’s determination that the plaintiff was wholly at fault for the accident
and the plaintiff’s increased insurance premiums. Counsel for the plaintiff
made it clear that the claim for personal injuries and damages would be dealt
with later, and that was understood by counsel for ICBC. On that basis neither
the third nor the fourth criteria for cause of action estoppel, or the first
criteria for issue estoppel have been met.

[32]        
The facts of this case are similar to the facts in Innes v. Bui
and Evans v. Campbell. Whether issue estoppel or cause of action
estoppel is applicable, at the end of the day the court must determine whether
it should exercise its discretion to bar the action by reason of res
judicata or whether there are exceptional or special circumstances that
should apply.

[33]        
I find that all of the criteria necessary for cause of action estoppel
or issue estoppel have not been met. If I am wrong, there are special
circumstances not to apply res judicata for to do so would cause a real
injustice to the plaintiff. The plaintiff has not had his day in court on his
claim for damages for personal injuries arising out of the accident. It may be
that the issue of liability is res judicata, but the application was not
argued on that basis. Rather, it is argued that the plaintiff should have
brought his claim for personal injuries at the same time he brought his action
in Small Claims Court. In certain circumstances that may be correct but only if
the claim can be brought within the monetary limit of Small Claims Court.
However, the fact remains that the plaintiff’s claim for damages for personal
injuries has never been before a court and considered. To dismiss the
plaintiff’s claim at this stage of the litigation would be denying the
plaintiff an opportunity to be heard on that issue and unjust.

[34]        
The application is dismissed with costs.

“Loo
J.”