The Respondent Plaintiff had initiated two Actions in respect of two different joint venture agreements, which were defined by Woolley J. as the “Langdon JVA” and the “Chestermere JVA”. After determinations were made in a different Action regarding the Langdon JVA, the Appellant applied to strike portions of the Respondent’s Statement of Claim on the basis of issue estoppel.

The Appellant’s Application to strike portions of the Statement of Claim had been dismissed by a Master. The Master had also permitted the Respondent to amend his Statement of Claim to incorporate facts included in his Statement of Defence to Counterclaim. The Appellant did not appeal the portion of the Master’s Decision permitting the Respondent’s amendments, but sought to strike those portions of the Amended Statement of Claim that would be invalid if his issue estoppel argument succeeded.

Woolley J. first explained that the standard of review from a Master’s decision is correctness. The issue was whether the Master correctly held portions of the Plaintiff’s Statement of Claim should not be struck as an abuse of process pursuant to Rule 3.68(2)(d). Her Ladyship reviewed the test for issue estoppel and then noted that the doctrine of abuse of process prevents claims from being re-litigated even where issue estoppel cannot be established, but where “allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”. To strike portions of a pleading under Rule 3.68(2)(d), it must be “beyond doubt” and “plain and obvious” that the claim will fail.

Here, both Actions were started “almost contemporaneously”, and so there could be no suggestion that the portions of the claim at issue were added in order to re-litigate a question that had already been before the Court. That being said, Woolley J. noted it was not impossible for the issues to still be duplicative and constitute an abuse of process. Her Ladyship was “troubled” by the Plaintiff’s pursuit of claims that appeared to have little likelihood of success given the outcome of the other Action, but ultimately could not say that the claim would plainly and obviously fail, even if it appeared very unlikely to succeed.

As such, the Appeal was dismissed. While Woolley J. held that Costs of the Application should be in the cause, Her Ladyship noted her “considerable sympathy” for the Appellant’s Application and noted that the harm that would be caused to the Appellant if the claim proceeded but ultimately failed could be addressed through elevated Costs.