Court References

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Supreme Court of Canada

The following decisions refer to the various editions of The Doctrine of Res Judicata in Canada by Donald J. Lange, B.A., LL.B., Ph.D. (Cantab.)


Penner v. Niagara (Regional Police Services Board), [2013] S.C.J. No. 19 at par. 88, 89, 91, 114 per Cromwell and Karakatsanis JJ. for the majority:

[88] The doctrine of issue estoppel seeks to protect the finality of litigation by precluding the relitigation of issues that have been conclusively determined in a prior proceeding. It arose as a doctrinal response to the “twin principles … that there should be an end to litigation and … that the same party shall not be harassed twice for the same cause” (Carl Zeiss Stiftung, at p. 946; K. R. Handley, Spencer Bower and Handley: Res Judicata (4th ed. 2009), at p. 4; Donald J. Lange, The Doctrine of Res Judicata in Canada (3rd ed. 2010), at pp. 4-7).

[89] These twin principles are often expressed in terms of the public interest in ensuring the finality of litigation, whether it is civil, criminal or administrative, and the individual interests of protecting the parties against the unfairness of repeated suits and prosecutions (see EnerNorth Industries Inc., Re, 2009 ONCA 536, 96 O.R. (3d) 1, at para. 53; Handley, at p. 4; Lange, at p. 7).

[91] As a species of res judicata, issue estoppel is conceptually related to the doctrines of cause of action estoppel, collateral attack, and abuse of process (Lange, at pp. 1-4).

[114] . . .As Lange observes, where legislatures intend issue estoppel not to apply to an administrative decision, there should be clear language in the statute to foreclose this possibility (p. 122).

Rick v. Brandsema, [2009] S.C.J. No. 10 at par. 64 per Abella J. for the court:

[64] This makes it unnecessary to deal with the effect of the consent order since, as Osborne J.A. observed in McCowan v. McCowan (1995), 14 R.F.L. (4th) 325 (Ont. C.A.), at para. 19, “… it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment”. This approach was explained by James G. McLeod as follows:

    • This rule reflects the reality that a consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances.
    • (Annotation to Thomsett v. Thomsett, 2001 BCSC 546, 16 R.F.L. (5th) 427, at pp. 428-29.)

(See also Shackleton v. Shackleton, 1999 BCCA 704, 1 R.F.L. (5th) 459, at para. 12; Schlenker v. Schlenker (1999), 1 R.F.L. (5th) 436 (B.C.S.C.), at para. 21; McGregor v. Van Tilborg, 2003 BCSC 918, [2003] B.C.J. No. 1427 (QL), at para. 16; T.(L.A.T.) v. T.(W.W.), at para. 18; Huddersfield Banking Co. v. Henry Lister & Son Ltd., [1895] 2 Ch. 273 (C.A.), at p. 280;Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 (Ont. C.A.), at pp. 165-66; Donald J. Lange, The Doctrine of Res Judicata in Canada, (2nd ed. 2004), at p. 329; R.L.S. v. D.C.M., 2002 BCSC 1794, [2002] B.C.J. No. 2890 (QL), at para. 43; and Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia (loose-leaf), vol. 2 at p. 32-11.)

R. v. Mahalingan, [2008] S.C.J. No. 64 at par. 108 per Charron J. for the minority:

[108] The importance of the doctrine of res judicata to the administration of justice is unquestionable. It has been variably described as lying “at the heart of the administration of justice” (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at para. 15); as a “fundamental principle of our system of justice” (R. v. Van Rassel, [1990] 1 S.C.R. 225, at p. 238); and as “a cornerstone of the justice system in Canada” (D.J. Lange, The Doctrine of Res Judicata in Canada (2nd ed. 2004), at p. 4).

[113] Identifying the elements of issue estoppel is deceptively simple, but applying the concept can prove rather complex, as evidenced by the considerable body of jurisprudence it has generated: see Lange for a useful discussion of the relevant jurisprudence. I will examine each element of issue estoppel in turn and discuss its application in the criminal context, starting with the requirement of mutuality. As we shall see, this requirement is so unsuited to the criminal context that it has never made its way into Canadian criminal law.

Garland v. Consumers’ Gas Co., [2004] SCC 25 at par. 71 per Iacobucci J. for the court:

[71] In addition, McMurtry C.J.O. is correct in holding that this action does not constitute an impermissible collateral attack on the OEB’s order. The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; D. J. Lange, The Doctrine of Res Judicata in Canada (2000), at pp. 369-70).

Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63 at par. 25, 38 per Arbour J., for the court, LeBeland and Deschamps JJ. concurring:

[25] There has been much academic criticism of the mutuality requirement of the doctrine of issue estoppel. In his article, Prof. Watson, supra, argues that explicitly abolishing the mutuality requirement, as has been done in the United States, would both reduce confusion in the law and remove the possibility that a strict application of issue estoppel may work an injustice. The arguments made by him and others (see also D. J. Lange, The Doctrine of Res Judicata in Canada (2000)), urging Canadian courts to abandon the mutuality requirement have been helpful in articulating a principled approach to the bar against relitigation. In my view, however, appropriate guidance is available in our law without the modification to the mutuality requirement that this case would necessitate.

[38] It is true that the doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defined in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at par. 22 per Binnie J. for the court:

[22] The extension of the doctrine of issue estoppel in Canada to administrative agencies is traced back to cases in the mid-1800s by D. J. Lange in The Doctrine of Res Judicata in Canada (2000), at p. 94et seq., including Robinson v. McQuaid (1854), 1 P.E.I.R. 103 (S.C.), at pp. 104-5, and Bell v. Miller (1862), 9 Gr. 385 (U.C. Ch.), at p. 386.