Canadian Class Action Defence Blog

Don’t throw away your shot: BC court confirms parties can’t relitigate claims

Sep 5, 2017 3 MIN READ
Laura Fric

Partner, Disputes, Toronto

Mary Angela Rowe

Associate, Research, Toronto

When advancing a claim, litigants have only one shot, so they need to put their best foot forward. That is the takeaway from the British Columbia Supreme Court’s recent decision in Fontaine v Canada (Attorney General) (2017 BCSC 418). The circumstances of this case were sympathetic on their face – a member of the class entitled to claim for abuse in an Indian residential schools class action missed a deadline by one day. This claimant returned to court to challenge the interpretation of a class action settlement agreement two years after his previous challenge, on different grounds. The court held that his new arguments were an abuse of process because they could have been advanced at the time of his initial challenge.


The 2006-2007 Indian Residential Schools Settlement Agreement (“Settlement Agreement”) settled class actions against the Government of Canada by plaintiffs who suffered under the federally-funded Indian residential school system. The Settlement Agreement established an Individual Assessment Process (“IAP”) allowing claimants to seek compensation for claims of abuse. The deadline for submitting IAP applications was almost universally understood to be September 19, 2012.

Ronnie Scout submitted his IAP application one day late, on September 20, 2012. It was rejected.

In 2014, Scout and several other claimants filed a Request for Directions (“RFD”) asking the Court to extend the IAP application deadline to permit late claims. The Court declined, holding that to allow late claims would be to undermine the agreement reached by the parties.

In 2016, Scout returned to court (with new counsel) for the present RFD. He asked the Court to declare that, on a proper reading of the Settlement Agreement and the settlement approval orders, the IAP deadline was not September 19, but September 20, 2012. If this request were granted, Scout’s IAP claim would be within the application deadline and would be accepted.

The Court declined to grant Scout’s request because his 2016 RFD was barred due to res judicata and the doctrine of abuse of process.


Although Scout’s 2016 RFD was framed differently than the 2014 RFD, the court held that it was the same “substantive claim” – and Scout should have advanced all his arguments at that time. The Court dismissed Scout’s protest that res judicata could not apply because the 2016 RFD raised separate issues, holding that “a party is expected to put its best foot forward in litigation, and cannot be permitted to later advance arguments that bear directly on the matters that were the subject matter of earlier proceedings.” In other words: litigants must present their best case first, or lose their chance.

This decision also confirms that courts will not alter the terms of a settlement agreement reached between the parties and sanctioned by the court. The court did not address the merits of Scout’s request. Nevertheless, the court appeared conscious that accepting Scout’s interpretation of the IAP deadline – which was at odds with the view shared by virtually everyone else involved in the IAP process – could be perceived as interfering in the Settlement Agreement, particularly given Scout’s unsuccessful 2014 RFD. As the court reiterated, “A court exercising its supervisory jurisdiction over a class action settlement does not have jurisdiction to alter the terms of the agreement between the parties.”