Date: 20010126
Docket: IMM-5510-97
BETWEEN:
RYSZARD PASZKOWSKI
Plaintiff
- and -
HER MAJESTY THE QUEEN,
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario
on January 26, 2001)
HUGESSEN J.
[1] I will not go into the background facts of this case, although I must say that they make at least as good reading as a great many of the spy novels which one encounters nowadays.
[2] What I have before me is a motion by the Crown seeking in effect to dismiss the plaintiff's action on the basis that it is frivolous, vexatious and an abuse of the process of the Court and that it cannot possibly succeed. To that motion, the plaintiff opposes an argument of res judicata or issue estoppel. That argument is based upon the admitted fact that at the outset of this action, some three years ago or more, the plaintiff applied for and obtained from Mr. Justice Rouleau an interlocutory injunction. That injunction was obtained after a hearing and after a considerable body of material had been filed before him. He considered that material and gave a reasoned judgment. In the course of giving that judgment, he specifically found, as he had too in the light of the jurisprudence, that the plaintiff had presented a serious issue for trial.
[3] The plaintiff says that that is res judicata to which Mr. Lester replies no, it cannot be res judicata because it is an interlocutory order and, of course, is subject to further review. And in my opinion they are both right. It seems to me that what one has to ask oneself when asking whether or not there is res judicata is: "what did the Court actually decide the first time around?" Here, there is no doubt that the Court, the first time around, actually decided that on the material before it, at that time, the plaintiff had a serious case to be argued. That is incompatible with any finding that the action is frivolous, vexatious or an abuse of process.
[4] That decision is not res judicata in the sense that it was open to the defendant to move for summary judgment and will remain open to the defendant at trial to lead other evidence and to bring further arguments to bear which may persuade a judge that the action should be dismissed. It is res judicata in the sense that no application can be made today based on the same materials as were before Mr. Justice Rouleau inviting the Court to arrive at a contrary conclusion to the one reached by him.
[5] And that is the situation before me. The materials before me, with some minor and irrelevant exceptions, are identical to the materials that were before Mr. Justice Rouleau. There is no new fact being brought before me. It was open to the defendant by a motion for summary judgment to introduce further affidavit evidence, to cross-examine the plaintiff on his affidavits and to invite the Court to make findings of fact and to draw conclusions which would have been different from those reached by Mr. Justice Rouleau, but that is not the course that has been followed.
[6] I am quite satisfied that I could not make a finding on the motion today giving effect to the defendant's contentions which would not clearly contradict the finding that was previously made by Mr. Justice Rouleau on effectively the same materials.
[7] If I am wrong with respect to res judicata, which is after all a highly technical question, it seems to me that I reach the same result in any event by approaching it as a question of policy, the very policy which underlies the doctrine of res judicata. That policy is based, I think, upon judicial economy and the need to protect parties from constant harassment in the Courts over the same point which has previously been litigated. Even if it is not res judicata, I can see no good reason why I should, sitting as a judge of this division of the Federal Court, be invited to make a finding which would directly contradict a finding previously made by another judge of coordinate jurisdiction upon the identical facts. Call it judicial comity, call it economy, call it what you will, I would decline to intervene on the basis on which I have been invited to intervene.
[8] Accordingly, I conclude that the defendant's motion must be dismissed with costs.
Judge
Ottawa, Ontario
January 26, 2001