Can a defence not advanced in a previous action be used or put forward as a claim in a subsequent action?
Ontario, Canada
The following excerpt is from Nicholas v Toronto-Dominion Bank, 2016 ONSC 3824 (CanLII):
A defence not advanced in a previous action cannot be used or put forward as a claim in a subsequent action. A defendant who is sued must in the action in which he is sued put forward all defences which he has to the plaintiff’s claim. He cannot allow the action to go to trial upon a certain defence and when that defence fails, set up another and inconsistent defence by bringing an action to set aside the judgment: Glatt v. Glatt, 1937 CanLII 8 (SCC), [1937] S.C.R. 347, at 350 and Britannia para. 20.
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