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CIVIL PROCEDURE - Special orders - For reprehensible or inefficient conduct

Wednesday, December 19, 2018 @ 6:34 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiffs from the dismissal of their action. In previous litigation, the plaintiffs’ counterclaim against Dairy Queen Canada had been dismissed on the basis their franchise agreement was properly cancelled and a release of claims executed by the plaintiffs was valid. The release stated the plaintiffs released Dairy Queen Canada and its affiliates from all claims. The plaintiffs then commenced the within action against Dairy Queen Canada’s parent company, alleging the franchise agreement was improperly cancelled as a result of conspiracies and fraud. A master struck the claim as an abuse of process. The plaintiffs’ appeal to a judge of the Supreme Court was dismissed. On further appeal, the plaintiffs made personal allegations against counsel and against the master. They falsely claimed at the oral hearing that there was no evidence the defendant was the parent company of Dairy Queen Canada.

HELD: Appeal dismissed. The findings of fact made in the previous litigation, including the validity of the termination of the franchise agreement and the validity of the release agreement, were binding on the plaintiffs. Merely making allegations against the parent company rather than against Dairy Queen Canada did not change the character of the litigation or the applicability of the release. The current action was an abuse of process. The addition of allegations of conspiracy or fraud did not preclude the current action from being an abuse of process. The plaintiffs’ conduct on the appeal, including making false and disturbing allegations against the master and counsel and misstating the evidence in argument, justified awarding special costs against them.

M.Y. Sundae Inc. v. International Dairy Queen, Inc., [2018] B.C.J. No. 3636, British Columbia Court of Appeal, H. Groberman, G.J. Fitch and J.J.L. Hunter JJ.A., November 8, 2018. Digest No. TLD-December172018005