Does res judicata apply in the context of a motion to dismiss an action for delay?

Ontario, Canada


The following excerpt is from 2027707 Ontario Ltd. v Richard Burnside & Associates Ltd., 2021 ONSC 5746 (CanLII):

With respect to issue of whether res judicata applies in the circumstances, I am mindful that Rule 24.05 provides that the dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise. However, commencing a second action, identical to one that had already been dismissed for delay, is an abuse of process; see, for example, Mintz v. Wallwin, 2009 ONCA 199. This can be the case if a subsequent action is commenced after the dismissal of the first, as well as when an identical claim is made in a second action that was commenced prior to the dismissal of the first action. In both situations, the second action can be stayed as an abuse of process.

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