PRACTICE |
Res Judicata |
Ruby Tradings S.A. v. Parsons
T-225-00
Hargrave P.
23/8/00
9 pp.
Motion to strike statement of claim in action wherein plaintiff ship owner claiming breach of contract of employment by crew members of Japan Rainbow II, and claim against union for interference with contractual relations; alternatively, stay of proceedings--Lutfy A.C.J. then granted injunction, without reasons, February 7, 2000, enjoining defendant crew members, union and union organizer from picketing ship--Defendants appealed injunction and brought present motion to strike out statement of claim on basis of want of jurisdiction--Motion dismissed--Question of want of jurisdiction over crew members res judicata herein as essence of motion dealt with by Lutfy A.C.J. and now subject of appeal--Also, because party should be allowed only one opportunity to attack opponent's pleadings, being appeal from A.C.J.'s order--Concept here that res judicata will apply in subsequent application if applicant, as herein, relies merely on own failure to present certain material or arguments on first application because whatever might have been litigated in first proceeding will be deemed to have been adjudicated on merits: Sopinka, Lederman and Bryant in The Law of Evidence in Canada, Toronto: Butterworths, 1999--Here, jurisdiction touched upon by Lutfy A.C.J. and counsel for defendants given ample opportunity to prepare further, but declined invitation--Defendants may appeal, but do not have right to re-argue same issue--As proceedings before F.C.A., would be inappropriate to grant alternative remedy, stay of action--Defendants must be content with remedy possible through their appeal.