On April 13, 2022, in Globe technologie inc. c. Rochette, 2022 QCCA 524, the Court of Appeal confirmed a judgment obtained by RSS before the Court of Quebec dismissing an action at the preliminary stage based on the notion of res judicata. The Court of Appeal maintained the position defended by RSS and concluded that when the tribunal has already sanctioned an abuse of proceedings within the action in which it occurred, this abuse cannot not be the subject of a second action for extra-contractual civil liability.
The First Action
Essentially, in 2014, the appellant Globe Technologies Inc. [Globe] institutes an action against 9184-2518 Québec inc. [Rocand] in payment of its IT services. Rocand disputes the claim and files a counterclaim. The Court grants Globe’s principal claim, dismisses Rocand’s counterclaim and orders the latter to pay $20,000 in legal fees for abuse of proceedings. The Court notes that Rocand acted recklessly in abusively pursuing the legal debate on the basis of factual premises that it knew to be inaccurate.
The Second Action
On September 13, 2019, Globe files a new action, this time against André Rochette [Rochette], Rocand’s sole director and shareholder, and Rocand’s external financial controller, Richard Lebrasseur [Lebrasseur]. Globe is claiming solidarily the balance of the legal fees incurred in the first action, namely $50,640. It is also claiming punitive damages of $20,000 against Rochette.
Before the Court of first instance, Rochette and Lebrasseur file a joint motion to dismiss the action, by arguing that the judgment rendered in the first action has become res judicata. The Court agrees with their arguments and concludes that the two actions are indeed identical in terms of cause, object and parties.
The Judgment of the Court of Appeal
Globe appeals the decision before the Court of Appeal. It alleges that (1) the Court of first instance should not have dismissed its claim without the benefit of a hearing on the merits, (2) it misapplied the principles of triple identity, and (3) it disregarded the rules of solidary liability by finding res judicata.
As for the first ground, the Court of Appeal reminds us that the application of res judicata is expressly provided for as a ground for dismissal at article 168 of the Code of Civil Procedure [CCP]. The Court must therefore rule on the motion at the preliminary stage in order to avoid an unnecessary trial.
As for the second ground, the Court of Appeal concludes that there is res judicata given the presence of the “triple identity”, that is, the identity of cause, object and parties provided for in article 2848 of the Civil Code of Québec [CCQ]:
- Identity of cause: This is the legal or material fact that is the basis of the right claimed. In other words, it is the facts underlying the action and their legal qualification. In this case, although Globe’s second action is based on extra-contractual liability [art 1457 CCQ] rather than on abuse of proceedings [art 51 and following CCP], the facts alleged against Rochette and Lebrasseur, who were acting as representatives of Rocand in the first action, are the same. The two actions seek to sanction their abusive conduct through a compensation for the legal fees incurred in the first action.
- Identity of object: The object is the immediate legal benefit sought. However, the claim need not be exactly the same if there are related objects or if the same rights are being enforced. Here, the object sought in both actions is the compensation for the legal fees incurred in the first action as a result of the abusive conduct of Rocand, through its representatives.
- Identity of parties: The identity of parties sought is their legal identity, which can exist through the mechanism of representation. Thus, there is identity of parties when representatives are sued in a second action for acts committed for the benefit of a legal person that has already been sanctioned in a first action.
As for the last ground, the Court of Appeal concludes that the appellant is mistaken in asserting that the rules of solidary liability, which provide that an action brought against a solidary debtor does not deprive the creditor of his recourse against the others, make the rule of res judicata inapplicable. Globe could have modified its proceedings to claim more in the first action, especially considering that it knew the extent of the legal fees incurred. However, the debt determined by the Court in the first action is $20,000. The payment of this debt by the solidary debtor Rocand, who is responsible for 100% of it, discharges the other solidary debtors, namely Rochette and Lebrasseur.
This decision confirms that the basis for a ruling of abuse of proceedings in a first action cannot be the object of a second action, whether against the same entity or its representatives. It is therefore up to the parties to assess adequately their damages or to modify their claim before a judgment is rendered. As the saying goes: “As you make your bed so you must lie in it”.