Précis: The court affirmed that dismissal of a prior proceeding without an adjudication on the merits is not a bar to later proceedings.
The plaintiff filed a claim against the defendant for outstanding freight charges in the Small Claims Court. The plaintiff failed to set the matter down for trial and the Small Claims Court action was subsequently dismissed. There was contradictory evidence as to whether the parties had agreed at a Small Claims Court Settlement Conference that the matter would proceed in the Federal Court. The plaintiff commenced this action in the Federal Court. The defendant filed an application to stay the action on the basis of, inter alia, abuse of process. At first instance the Prothonotary dismissed the application holding that the dismissal of the Small Claims Court action without a decision on the merits did not prevent the plaintiff from re-commencing the action in the Federal Court. The defendant appealed.
Decision: Appeal dismissed.
Held: The abuse of process doctrine is a flexible doctrine to protect litigants from abusive, vexatious or frivolous proceedings. Its application depends on the circumstances and is fact and context driven. The Prothonotary correctly held that, in the absence of a deliberate flouting of a Federal Court Order, the dismissal of the Small Claims Court action did not prevent the plaintiff from re-commencing the action in the Federal Court.