Court References

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Trial Courts

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.)

ALBERTA COURT OF QUEEN’S BENCH

Panasiuk v. Leclercq, [2015] A.J. No. 811 (Q.B.) at par. 15 per Shelley J.:

[15] It is trite law that arrears are not a final debt, as issues of support may always be reopened under special circumstances: Family Law Act, SA 2003 c F-4.5 s 77(4) [Act]. In circumstances where the litigant has continually brought applications of the same nature before the Court, further application may be an abuse of process or barred by res judicata: Donald J Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at 295.

Hill v. Hill, [2015] A.J. No. 760 (Q.B.) at par. 14-15 per Hall J.:

[14] The plaintiff, however, maintains that the test to set aside a judgment because of fraud is less stringent than the test for new evidence, relying on Lange, “The Doctrine of Res Judicata In Canada”, 3rd edition. The plaintiff maintains that the new evidence revealing fraud does not need to be practically conclusive; it need only be material to the issue before the court; again relying on Lange, supra.

[15] Lange, however, notes that the plaintiff’s interpretation is the one followed by Ontario Courts. It differs from the interpretation favoured in Alberta, that the evidence revealing fraud must still be “practically conclusive”.

Royal Bank of Canada v. Benchmark Real Estate Appraisals Ltd., [2014] A.J. No. 520 (Q.B.) at par. 36 per Hanebury, Master:

[75] Finally, Mr. Starke argued that res judicata applied to bar RBC’s claim as it should have known of his alleged deceit earlier and included this claim in the foreclosure action. Such an argument does not lie in the mouth of someone who is alleged to have committed fraud: Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed., (Markham, Ont: LexisNexis, 2010), page 281 and cases cited therein. Should no fraud have been committed, the trial judge may well find that this argument has traction. However, at this stage of the proceedings such an argument is untenable. On the facts before this Court it is an insufficient basis to dismiss RBC’s claim.

. . .

[77] The doctrine of collateral attack ensures that an order pronounced by one court is not questioned in a subsequent proceeding unless it is for that express purpose, i.e., an appeal of the original order. It is applied in a more general way than issue estoppel to bar the second proceeding and it does not include the “more principled analysis” that is undertaken in relation to issue estoppel. However, collateral attack is often applied concurrently with issue estoppel or cause of action estoppel: The Doctrine of Res Judicata in Canada, p. 467.

A.R. v. Alberta (Child, Youth & Family Enhancement Act, Director), [2013] A.J. No. 1357 (Q.B.) at par. 36 per Wakeling J.:

[36] . . .Finality is a positive feature in disputes of this nature. See D. Lange, The Doctrine of Res Judicata in Canada 4-5 (3d ed. 2010).

Syncrude Canada Ltd. v. Highland Consulting Group Inc., [2013] A.J. No. 1105 (Q.B.) at par. 48 per Manderscheid J.:

[48]The court recognizes two forms of res judicata: issue and cause of action estoppel. “In their simplest definitions, issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding: “Donald J Lange, The Doctrine of Res Judicata in Canada, 3d ed. (Ontario: LexisNexis Canada Inc., 2010) [Res Judicata] at 1; see also Ernst & Young Inc v. Central Guaranty Trust Company, 2006 ABCA 337 at para 29, 397 AR 225.

D.J. B. v. Alberta (Child, Youth & Family Enhancement Act, Director), [2011] A.J. No. 535 (Q.B.) at par. 26 per Sulatycky J.:

[26] The doctrine of res judicata prevents the litigation of “something that has clearly been decided”: R. v. Duhamel, [1984] 2 S.C.R. 555 at 208. Res judicata exists in two forms: cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party to previous litigation from reasserting the same cause of action, whereas issue estoppel prevents the litigation of an issue that has already been determined by the court, regardless of whether the issue is introduced in a different cause of action: Donald J. Lange, The Doctrine of Res Judicata in Canada, 3d ed. (Markham: LexisNexis, 2010) at 34.

Hazin (Re), [2011] A.J. No. 344 (Q.B.) at par. 33-34 per Gill J.:

[33] In the text book The Doctrine of Res Judicata in Canada, 3d ed. (Markham, Ont: LexisNexis Canada Inc, 2010), Donald J. Lange deals with the various definitions of privity found in Canadian case law. He states at page 84:

A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. A person who has no right to participate as a party in a proceeding lacks a due process requirement to make a finding of privity of interest. To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person.

[34] Further at page 85, Lange writes:

For issue estoppel to apply, it must be shown that the “wait and see” party could easily have been involved in the prior proceeding.

Burcevski v. Ambrozic, [2010] A.J. No. 1021 (Q.B.) at par. 40, 47 per Kent J.:

[40] The doctrine of res judicata is fundamental to the judicial process. When the doctrine applies, a litigant is estopped from proceeding with a new action because the issue has been decided in previous proceedings. Res judicata is grounded upon public policy considerations that an end be put to litigation and that one should not be twice vexed by the same cause: Re Smolak and Necula, [1974] 1 W.W.R. 1, 39 D.L.R. (3d) 730 (Alta. S.C.A.D.); and Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Markham: LexisNexis, 2004) at p. 1-2 & 250 (“Lange”).

. . .

[47] Burcevski argues that a party seeking to set aside a decision based on fraud must show that the fraud was material to an issue. He further contends that the party need not show that the fraud was the determining factor. In support, Burcevski cites an Ontario and English line of jurisprudence: Canada v. Granatile Inc. (2008), 302 D.L.R. (4th) 40 (Ont. S.C.J.); 100 Main Street East Ltd. v. Sakas (1975), 8 O.R. (2d) 385, (Ont. C.A.); and Meek v. Fleming, [1961] 3 All E.R. 148. These authorities appear to be divergent from the Alberta cases, in that they focus on whether the fraud is material to an issue rather than affecting the result of the judgment. In other words, when considering alleged fraud, Ontario courts focus on material issues while Alberta courts look to the results: Lange at p. 254. Both cases were decided before Wavel.

Waap v. Alberta, [2008] A.J. No. 1014 (Q.B.) at par. 179 per Nation J.:

[179] The fundamental question in determining whether or not there is a collateral attack is the legislature’s intention in regard to the appropriate forum for resolving the matter in issue: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Markham: Butterworths, 2004) at 406. In R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 the Supreme Court adopted five factors with one modification from the earlier decision of the Court of Appeal: 1) the wording of the statute from which the power to issue the order derives, 2) the purpose of the legislation, 3) the availability of an appeal, 4) the nature of the collateral attack in light of the appeal tribunal’s expertise and raison d’etre, and 5) the penalty on a conviction for failing to comply with the order.

Lloyd v. Imperial Oil Ltd., [2008] A.J. No. 695 (Q.B.) at par. 49, 53 per Wittmann J.:

[49] In Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Toronto: Butterworths, 2004) the learned author surveys a number of decisions of Canadian courts and sets out, at p. 77, a number of definitions arising out of issue estoppel cases, including:

… A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome … To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person.

[53] In The Doctrine of Res Judicata in Canada, this element of the test is described, at p. 144:

Whether the cause of action in the first proceeding is the same as that sought to be enforced in the second proceeding does not depend upon technical considerations but upon matters of substance, that is, whether they are in substance identical.

Fisher v. Fisher, [2008] A.J. No. 284 (Q.B.) at par. 62 per McDonald J.:

[62] Donald J. Lange in The Doctrine of Res Judicata in Canada, 2nd ed. (Toronto: Butterworths, 2004) writes at pages 404 and 405:

In regard to an attack on a court order, the doctrine [of collateral attack] is a flexible doctrine, not an absolute doctrine …

To prevent a collateral attack is to ensure fairness to all parties, but not all collateral attacks are offensive. In R. v. Domm, [1996] O.J. No. 4300 Doherty J.A., for the Ontario Court of Appeal, extensively reviewed the case law and scope of the doctrine of collateral attack and provided two exceptions to its application. The first exception is that obedience to a court order will be relaxed where no harm will come to the justice system …

The second exception is if the litigant does not have an effective remedy through existing court procedures to attack the court order, for example, by way of variation, or appeal, or review …

Bank of Montreal v. Jarjoura, [2007] A.J. No. 1394 (Q.B.) at par. 181-184 per McIntyre J.:

[181] The formal documents that track Uniserve’s bankruptcy proceedings were made an exhibit at trial for the purpose of determining whether the amounts in the Due from Shareholders Accounts had been dealt with previously. In Peters v. Remington, [2004] 339 A.R. 326, 2004 ABCA 5, Wittmann J.A., (as he then was) held at para. 17:

In evaluating what was decided for the purpose of res judicata, the court may look to documentation beyond the formal judgment itself: Lange, The Doctrine of Res Judicata in Canada; Maynard v. Maynard, [1951] S.C.R. 346, [1951] 1 D.L.R. 241 at 251-252, leave to appeal to Privy Council denied, [1952] 1 S.C.R. vii; and Smode v. Deveaux (1996), 216 A.R. 20 at para. 3 (C.A.).

[182] There is no formal judgment before me in regards to Uniserve’s bankruptcy as it is still ongoing. All that is before me are numerous interlocutory documents and Orders from various Masters. Where it is an interlocutory Order, as it is here, the court should look at the Notice of Motions and the evidence giving rise to the Order: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Ontario: LexisNexis Canada Inc., 2004) at 21 (Lange on Res Judicata); Burk Holdings Ltd. v. Alberta Real Estate Association (1992), 129 A.R. 112 (Master) at 122-23. I will rely on the bankruptcy documentation that was provided to me in determining the issue of res judicata.

[183] In the case Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225, 2006 ABCA 337; leave to appeal refused by S.C.C. 2007 CarswellAlta 517 (S.C.C. April 19, 2007), which was not referred to me by counsel but which I find most instructive, the Court of Appeal dealt with the doctrine of res judicata. The court relied heavily on Lange on Res Judicata in its analysis but referred to the text as Res Judicata. In referring to this text, the Court stated at para. 29:

The doctrine of res judicata has two branches: issue estoppel and cause of action estoppel. Issue estoppel precludes the litigation of an issue previously decided in another court proceeding, and cause of action estoppel precludes the litigation of a cause of action which was adjudged in a previous court proceeding.

[184] Lange on Res Judicata, at 223, endorses the judgment of Lander, J. in Spender (Guardian ad litem of) v. Spender (1999), 87 A.C.W.S. (3d) 1025 (B.C.S.C.) as the procedure to follow to establish whether issue estoppel or cause of action estoppel should apply to a Consent Order. Lander J. stated at para. 23-25:

When faced with a plea of res judicata on grounds of a consent order in an earlier proceeding, the court must proceed as follows.

First, the cause of action in the earlier proceeding must be compared to the cause of action in the later proceeding. If they are different, then no “cause of action” estoppel can arise. If the causes of action are identical, the court must examine the consent order and any agreement, correspondence, or releases leading to its entry, in order to ascertain objectively whether the consent order was intended to finally dispose of all issues in the cause of action.

If no cause of action estoppel is established, the court must nevertheless examine the pleadings, the consent order, and any agreement, correspondence, or releases leading to its entry, in order to ascertain what issues, if any, were intended by the parties to be determined by the consent order. The parties will be precluded by “issue estoppel” from controverting any issue that the parties intended to dispose of through the consent order.

Walji v.Quiaishi, [2007] A.J. No. 1165 (Q.B.) at par. 54 per Graesser J.:

[54] As noted by D. Lange in The Doctrine of Res Judicata in Canada 2nd ed. (Markham, Ont.: Butterworths, 2004) at p. 25, one of the principles of issue estoppel is that the question decided in the first proceeding must be the same as the question to be decided in the second proceeding, and the question must be fundamental to the decision in the first proceeding and not collateral to it.

Collavino Inc. v. Yemen (Tihama Development Authority), [2007] A.J. No. 149 (Q.B.) at par. 54 per Wittmann A.C.J.Q.B.:

[54] Yemen did not plead the issue of res judicata and has admitted issue estoppel should not apply but has argued that abuse of process by relitigation should apply. Jurisprudence has established that the same considerations that arise for issue estoppel will also arise for abuse of process by relitigation. Donald J. Lange, The Doctrine of Res Judicata 2d ed. (Markham: Lexis Nexis Butterworths: 2004) at 385 stated:

It may, therefore, be summarized from the case law that the application of abuse of process is to avoid relitigation of the same question in the same way that issue estoppel is traditionally applied, that is, the same question must have been actually decided and the question must have been fundamental to the decision.

ESA Holdings Ltd. v. Shea Nerland Calnan,, [2007] A.J. No. 149 (Q.B.) at par. 30 per Gill J:

[30] The doctrine of abuse of process is used in a variety of legal contexts, providing Judges with an inherent and residual discretion to prevent an abuse of the court’s process. As noted in para. 37 of Toronto (City):

… the doctrine of abuse of process engages ‘the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute.’

As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. [Emphasis added.]

And at paragraph 38, quoting from Donald Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at pp. 347 – 348:

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.

Foreman v. Foreman, [2005] A.J. No. 528 (Q.B.) at par. 9-10 per Slater J:

[9] In D.J. Lange, The Doctrine of Res Judicata in Canada (2d ed.) the learned author notes at p. 312: “The doctrines of issue estoppel and cause of action estoppel apply in family law.” The author goes on to note that family law statutes often provide exceptions to the doctrine. Those exceptions are generally triggered by one of the parties showing a change of circumstances, in which case one approach is that only the circumstances that have arisen since the original judgment will be considered, but the parties will not be allowed to re-litigate matters that arose before that. In other instances, once a change of circumstances is shown, the whole issue is reopened. The provisions in s. 17 of the Divorce Act, R.S.C. 1985, (2d Supp.) c. 3, which allow a change of custody when a change of circumstances is shown, have been interpreted as being of the latter type: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[10] Parties in family law disputes are encouraged to settle their differences. If they cannot, they have the right to go to trial and have the matter adjudicated. However, when they settle their differences (whether by agreement or consent order or both), or once they have had an adjudication, they are not thereafter entitled to re-litigate the issue. As D.J. Lange states in The Doctrine of Res Judicata in Canada, supra, at p. 313:

Notwithstanding the policy and legislative considerations in family law, the common law estoppel doctrines, including the related doctrine of abuse of process by re-litigation, are applied in family law. Re-litigation is a frequent occurrence in family law, where the litigants’ emotions often run high but the estoppel doctrines are useful shields and swords to repel these lovers of re-litigation.

Subject to the statutory exceptions previously noted, the parties are not entitled to re-litigate family law issues.

Mr. K. v. E. K., [2004] A.J. No. 544 (Q.B.) at par. 29 per Read J:

[29] Dismissing a motion to strike pleadings does bar a second motion by cause of action estoppel: H.L. Staebler Ltd. v. Lohnes (1986), 38 A.C.W.S. (2d) 385 (Ont. Dist. Ct.), D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at p. 166; and motions to amend are also affected by issue and cause of action estoppel: Lange, supra at p. 167 and cases cited therein. However, a second motion to dismiss on different grounds than the first is not barred, according to Sporan Farms Inc. v. Hook’s Ranches Ltd., [1993] B.C.J. No. 426 (S.C.). Thus, the fact that the application before me is interlocutory is not necessarily determinative.

[30] In my view, however, the real difficulty with the Plaintiff’s position is that the parties to this application are not the same parties or privies to the proceedings before Ritter J. The same parties test is a requirement for application of issue estoppel and cause of action estoppel: Lange, supra at pp. 58, 131.

Dell Chemical & Marketing Ltd. v. Aquasol International Inc., [2004] A.J. No. 274 (Q.B.) at par. 9 per Veit J.:

Cases and authority cited:

[9] By the respondent: Argentia Beach (Summer Village) v. Warshawski (1991), 120 A.R. 27; Favor v. Winnipeg, [1989] 3 W.W.R. 374 (Man. C.A.); D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000).

Re Promax Energy Inc., [2003] A.J. No. 1718 at par. 48 per Romaine J.:

[45] It is again important in addressing this issue to determine the real subject matter of the previous litigation: Donald L. Lange, The Doctrine of Res Judicata in Canada, (Toronto: Butterworth 2000) at 126. There was no reason for Promax to raise the character of the royalty on after-acquired lands in addressing the issues that arose in the previous litigation.

Hauck v. Dominion of Canada General Insurance Co., [2003] A.J. No. 1505 (Q.B.) at par. 36 per Lo Vecchio J.:

[36] The burden of proof is on Dominion to establish the necessary elements of res judicata. Res judicata in Canada has two distinct forms: issue estoppel and cause of action estoppel [See Note 3 below]. In argument, Dominion also raised abuse of process by relitigation, which is founded on the same underlying principles as the doctrine of res judicata.

Note 3: The Doctrine of Res Judicata in Canada, Lange, Donald J., Butterworths: 2000 at p. 1.

BRITISH COLUMBIA SUPREME COURT

Burke v. Watson & Barnard (A Firm), [2015] B.C.J. No. 1052 (S.C.) at par. 18 per Silverman J.:

[18] In order for the in rem aspect of judgments to apply, it is necessary that the factual findings of the decisions be essential or fundamental from the judgment, and the only place to look for that is in the judgment itself or in the order. That is the proposition of Donald Lange in The Doctrine of Res Judicata in Canada, 3rd edition, at p. 485. [89] Many cases, such as those discussed below, refer to earlier editions of the leading text, Donald J. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: Butterworths, 2010). In the most recent edition, the author discusses the issue of privies at 83-85:

XY LLC v. Canadian Topsires Selection Inc., [2014] B.C.J. No. 2650 (S.C.) at par. 89 per Fitzpatrick J.:

[89] Many cases, such as those discussed below, refer to earlier editions of the leading text, Donald J. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: Butterworths, 2010). In the most recent edition, the author discusses the issue of privies at 83-85:

A privy of a party has been variously defined in issue estoppel cases. Privity can be one of blood, title, or interest. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. The privy must have notice of the previous proceeding to be bound by it. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome… To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person. Privy requires parallel interest in the merits of the proceeding, not simply a financial interest in the result. However, a non-party who enters into a formal agreement with the party in a proceeding for disposing of the proceeds is a privy of that party and bound by the first proceeding. To establish privy, it is not enough that the non-party have control over the first proceeding. The non-party must be taken into the confidence of the party in the first proceeding. A non-party in an earlier proceeding is a privy on the basis of being involved in the first proceeding by being present and by giving evidence. The term “parties” includes those who are named in the proceeding and those who have an opportunity to attend the proceeding.

Factors which have been considered in … establish[ing] a privy of a party [include], namely, having knowledge of the previous proceeding, a clear interest in the proceeding, the ability to intervene as a participant but choosing to stand by and watch, active participation in the previous proceedings by giving evidence, and being part of the litigation team.

[Emphasis added].

Easingwood v. Easingwood Estate, [2014] B.C.J. No. 2167 (S.C.) at par. 68 per Fitch J.:

[68] In these circumstances, the fairness of the marriage agreement was “necessarily bound up with” and “fundamental to” the determination of the fraudulent conveyance claim. To borrow the language of Donald J. Lange in Res Judicata in Canada, 3rd ed. (Markham: LexisNexis Canada Inc. 2010) at 47 [adopted in Cliffs Over Maple Bay at para. 36] the fairness of the marriage agreement, a point assumed or at least unchallenged by the plaintiff, became part of the “latent structure” supporting the express question of whether the transfer of Reg’s assets to the trust constituted a fraudulent conveyance.

Sturm v. Sprott Resource Lending Corp., [2014] B.C.J. No. 212 (S.C.) at par. 66 per Fitzpatrick J.:

[66] Res judicata takes two forms: issue estoppel and cause of action estoppel. As summarized by Donald J. Lange in The Doctrine of Res Judicata in Canada, 3d ed. (Markham: LexisNexis Canada, 2010) at 1:

In their simplest definitions, issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding.

MacKenzie (Re), [2013] B.C.J. No. 1987 (S.C.) at par. 74 per Groper J.:

[74] Donald Lange’s text The Doctrine of Res Judicata in Canada, 3rd ed. (Markham: LexisNexis, 2010) states at 464 – 465:

There are two kinds of lack of jurisdiction for the purpose of a judgment. An important distinction must be made between a judgment rendered where there is no jurisdiction, in and of itself, and a judgment rendered where there is no jurisdiction although jurisdiction is assumed to exist because of a set of facts which are assumed to exist. The former is a nullity and assailable in a subsequent proceeding as a defence to an estoppel argument. It is not viewed as a collateral attack on the judgment. The latter is only assailable by way of appeal. If it is attacked in a subsequent proceeding, it is viewed as a collateral attack on the judgment.

J.P. v. British Columbia (Director of Child, Family and Community Services), [2013] B.C.J. No. 1708 (S.C.) at par. 72 per Walker J.:

[72] In Giles v. Westminster Savings Credit Union, 2006 BCSC 1600, aff’d 2010 BCCA 282 (“Giles (C.A.)”), Sigurdson J. quoted with approval the following remarks from the author of The Doctrine of Res Judicata in Canada, 2d. ed. (Toronto: Butterworths, 2004) at 77:

A privy of a party has been variously defined in issue estoppel cases. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. Privity can be one of blood, title, or interest. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. A person who has no right to participate as a party in a proceeding lacks a due process requirement to make a finding of privity of interest. To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person. Privy requires parallel interest in the merits of the proceeding, not simply a financial interest in the result. However, a non-party who enters into a formal agreement with the party in a proceeding for disposing of the proceeds is a privy of that party and bound by the first proceeding. [Emphasis added]

Strata Plan K855 v. Big White Mountain Mart Ltd., [2013] B.C.J. No. 1699 (S.C.) at par. 20 per Johnston J.:

[20] In The Doctrine of Res Judicata in Canada, Third Edition, by Donald J. Lange, the author says at page 1:

The doctrine of res judicata is a fundamental doctrine of the justice system in Canada. It has two distinct forms; issue estoppel and cause of action estoppel. It is part of the general law of estoppel comprising estoppel by conduct or representation, estoppel by deed, promissory estoppel, proprietary estoppel, and res judicata. Early terms used for res judicata were “estoppel per rem judicatam,” that is, estoppel by the matter decided, and “estoppel by record,” that is, estoppel by the written record of a court of record. In Canada, the term most commonly used is “res judicata” which the Supreme Court of Canada has defined as “something that has clearly been decided” and as “it has passed into a matter adjudged.” When res judicata applies, a litigant is “estopped” by the previous proceeding.

Mulligan v. Stephenson, [2013] B.C.J. No. 1685 (S.C.) at par. 82 per Affleck J.:

[82] Donald J. Lange, in The Doctrine of Res Judicata in Canada, 2nd ed. (Markham: LexisNexis Canada Inc., 2004), states the following at p. 32:

For the purposes of a separate and distinct cause of action, issue estoppel is treated in much the same way as cause of action estoppel. In cause of action estoppel, when the issue is decided, that cause merges in the decision and can not be revived in a second action because it is gone. In issue estoppel, when the issue is decided, that issue merges, so to speak, in the decision and cannot be revived in a second action, even based on a separate and distinct cause of action, because it is gone.

Bronson v. Tompkins Ranching Ltd., [2013] B.C.J. No. 1010 (S.C.) at par. 31-32 per Gropper J.:

[31] The scope of the abuse of process doctrine was more broadly stated by Donald Lange in his text The Doctrine of Res Judicata in Canada, 3rd ed. (Markham: LexisNexis Canada, 2010) at 209:

Non-party conduct, that is, choosing not to intervene, is an abuse of process on the extended principle of “estoppel by conduct/abuse of process.” A person, who may not technically be a party or privy to the first proceeding, but has notice of it and the opportunity to participate in the first proceeding, cannot bring a second proceeding as a result of the failure to raise the issue in the first proceeding.

[32] I note that an earlier edition of this text was relied upon by Arbour J. in CUPE at para. 37.

Reliable Mortgages Investment Corp. v. Chan, [2013] B.C.J. No. 384 (S.C.) at par. 13 per Burnyeat J.:

[13] The primary argument of the applicants is that there should not be relitigation of what could have been dealt with at the trial before N. Smith J. In The Doctrine of Res Judicata in Canada, (Third Edition, 2010, LexisNexis), the learned author states:

There are six essential doctrines developed by the courts of Canada. Each one of these doctrines may be applied with rigour based on its precise meaning. in their most concise definitions, the six essential estoppel doctrines are:

(1) Issue estoppel bars an issue which has actually been decided in the first proceeding.

(2) Issue estoppel under the rule in Henderson bars an issue which could have been brought in the first proceeding.

(3) Cause of action estoppel, the trust res judicata, bars a cause which has actually been decided in the first proceeding.

(4) Cause of action estoppel under the rule in Henderson bars a cause which could have been brought in the first proceeding.

(5) Abuse of process by relitigation bars a second proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined.

(6) Collateral attack bars a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum.

With respect to the policy grounds, a consideration of issue estoppel or cause of action estoppel focuses upon the interests of the litigants. A consideration of abuse of process by relitigation or collateral attack focuses upon the justice system.

(at pp. 11-12)

MacDougall v. Lake Country (District), [2011] B.C.J. No. 2377 (S.C.) at par. 18 per Cole J.:

[18] In Donald Lange, The Doctrine of Res Judicata in Canada, 3rd ed (Markham, Ontario: LexisNexis, 2010) at 482-83, it is explained that a judgment in rem does not require the parties or their privies to be the same. That text states:

A judgment in rem is always “as a status of the res” and that “res” is either a person or a thing. For the purpose of the doctrine of judgment in rem, a person is any legal entity, for example, a trade union. A thing may be a physical thing, such as a right of way, or other subject matter, such as a treaty.

A judgment in rem is conclusion against all persons, not only against the parties to the proceeding. It removes the estoppel requirement of a litigant to a subject proceeding to prove that the litigant was a party to, or a privy of a party to, the earlier proceeding.

0713401 B.C. Ltd. v. Elgon Electrical Services Ltd., [2011] B.C.J. No. 25 (S.C.) at par. 7 per Leask J.:

[7] The plaintiff relied on the text of Donald Lange, The Doctrine of Res Judicata in Canada, Second Edition. The special application of cause of action estoppel where a counterclaim is at issue is discussed at p. 145:

The general principle is that, if the counterclaim is a separate and distinct cause of action, there is no requirement to raise it in the original action. If the counterclaim is not a separate and distinct cause of action, it should be raised in the original action.

Cliffs Over Maple Bay Investments Ltd. (Re), [2010] B.C.J. No. 535 (S.C.) at par. 56 per Groves J.:

[56] While issue estoppel is the predominant doctrine arising from interlocutory matters, cause of action estoppel may also apply. Donald Lange in The Doctrine of Res Judicata in Canada, 2nd ed. (Markham: LexisNexis Butterworths, 2004) states at page 178:

The subject matter of a motion may also be considered a cause of action for the purpose of cause of action estoppel. Where the question in the motion decides the proceeding itself because the question decides the cause of action a second proceeding based solely on the same question relitigates the same cause of action and is estopped by the decision in the motion on the basis of cause of action estoppel.

Foreman  v. Nivel, [2009] B.C.J. No. 2148 (S.C.) at par. 9 per Savage J.:

[9] The doctrine of res judicata has been called a cornerstone of the justice system, grounded in the public policy that there is an interest in putting an end to litigation, and in the individual right that no person should be vexed twice by the same cause of action: See, Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd edition, p. 4; Sopinka, Lederman, Bryant, The Law of Evidence in Canada, 2nd Edition, (Toronto: Butterworths, 1999) at p. 1068; A Solicitor v. Law Society of New Brunswick, 2004 NBQB 95, [2004] N.B.J. No. 81 (Q.B.), at para. 23; 574095 Alberta Ltd. v. Hamilton Brothers Exploration Co., 2002 ABQB 238, [2002] A.J. No. 317 (Q.B.) at para. 37; Giles v. Westminster Savings Credit Union, 2006 BCSC 1600 at para. 26.

Wolverton Securities Ltd. v. Schemel, [2009] B.C.J. No. 1546 (S.C.) at par. 42 per Brown J.:

[42] A cause of action is “the combination of facts which give rise to the right of action by a party against another in the first action. Because a party frames a first action in contract and a second action in tort does not change the determinative issues which the first court decided and which the second court would be asked to decide again, but with different remedies as the objective. That is, [for example] restitution rather than damages. A new legal theory in a second action such as tort rather than contract, marshalling the combination of facts from the first action in a different way, will not create a separate and distinct cause of action”: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Markham, Ont.: Lexis Nexis 2004) at 140, citing Comeau v. Breau (1994), 145 N.B.R. (2d) 329 (C.A.) at 339, 343.

Brown v. Miller, [2008] B.C.J. No. 1905 (S.C.) at par. 83 per Martinson J.:

[83] The Florida Court did leave it open to Mr. Brown to apply for a remedy in equity. In Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Markham, Ont.: LexisNexis, 2004) at 86 the author noted, “where a court clearly indicates that a litigant is free to take further action on an issue, the court’s adjudication on the issue may still, surprisingly, be final for issue estoppel.” The fact that Mr. Brown is free to take further action in Florida does not mean that the Florida decision cannot be a final decision.

Laxton v. Colgon, [2008] B.C.J. No. 1136 (S.C.) at par. 30, 33 per Kelleher J.:

[30] The doctrine of res judicata is a principle which ensures that a judgment of a court is final and determinative. A matter thus cannot be re-tried in a subsequent suit between the same parties. There are two forms of res judicata: issue estoppel and cause of action estoppel. They are defined in Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Markham, Ontario: LexisNexis Canada, 2004) at 1 as follows:

When res judicata applies, a litigant is “estopped” by the previous proceeding. In their simplest definitions, issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding.

In this case, the defendant relies on the doctrine of issue estoppel.

[33] It is settled law that a consent judgment is a judgment of the court. Where a consent order is intended to be final, it will operate as such for the purpose of issue estoppel (The Doctrine of Res Judicata in Canada, supra at 223).

Grant Mcleod Contracting Ltd. v. Forestech Industries Ltd., [2008] B.C.J. No. 1077 (S.C.) at par. 14, 15, 17, 18, 28 per Josephson J.:

[14] In The Doctrine of Res Judicata in Canada, 2nd ed. (LexisNexis, 2004) at p. 158-62, D.J. Lange, referring to the Ontario High Court of Justice decision in Four Embarcadero Center Venture v. Mr. Greenjeans Corp. (1988), 64 O.R. (2d) 746, states that the test of finality is that a decision is final when the court pronouncing it has no further jurisdiction to rehear the issues or to vary or rescind the decision. This is the same test as for issue estoppel (see Ernst and Young Inc. v. Central Guaranty Trust Co., 2006 ABCA 337). However, a decision that is under appeal is not, for the purpose of cause of action estoppel, considered to be a final judgment.

[15] There is a debate as to whether cause of action estoppel is limited to issues that can fairly be regarded as having been disposed of “on their merits” (see Lange at pp. 156-157). However, according to Lange, the Supreme Court of Canada in R v. Riddle, [1980] 1 S.C.R. 380 held that there is actually no requirement that there be an adjudication on the merits for cause of action estoppel to apply when the first action is dismissed.

[17] In L.(R.) v. K.(P.) (1991), 37 R.F.L. (3d) 191 (B.C.S.C.), this court held that the reference to common law in the foregoing passage does not extend to civil proceedings. However, Lange offers the opinion that this is a doubtful finding in view of the fact that the bis vexari maxim is firstly a doctrine from civil litigation. At p. 157 he concludes that “[s]tatements of the general principles of cause of action estoppel which require that the first decision be determined on the merits should not be relied upon”.

[18] In the case before me, N. Smith J.’s decision of February 29, 2008 was “final” as that term is defined by the authorities. Given the caution expressed by Lange, I decline to dismiss this application solely on the ground that the decision did not address the merits of the claim.

[28] According to Lange at p. 140-44 the question to ask is: “Are the facts upon which the defendant was found liable to the plaintiff in the first action substantially the same and in issue in the second action”? Where the facts are the same and the causes of action are the same, although different legal descriptions are used in the two actions, the second action is barred.

Carr v. Cheng, [2007] B.C.J. No. 2511 (S.C.) at par. 99 per Rice J.:

[99] Mr. Ottho argued that the dismissal of the First Action counterclaim having been ordered by consent rather than on the merits should not raise an estoppel. No authority was offered as proof that a consent final order is any less res judicata than a judgment rendered without consent. In Donald J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000), the author comments at p. 197:

The leading decision for consent judgments is the Ontario Court of Appeal case of Re Ontario Sugar Co. Moss C.J., [1911] O.J. No. 76, speaking for the court, stated the principle:

It is not now questioned that a judgment by consent may raise an estoppel inter partes. That it is as binding and conclusive between the parties and their privies as any other judgment (subject, perhaps, to certain exceptions in cases of fraud or mistake), is well established by the authorities referred to by the learned Chief Justice, to which may be added the case of Hardy Lumber Co. v. Pickerel River Improvement Co. (1898), 29 S.C.R. 211.

Rivet v. British Columbia, [2007] B.C.J. No. 1085 (S.C.) at par. 82 per Arnold-Bailey J.:

[82] Donald J. Lange, in The Doctrine of Res Judicata in Canada, 2nd ed. (Markham: LexisNexis Canada Inc., 2004), states the following at p. 32:

For the purposes of a separate and distinct cause of action, issue estoppel is treated in much the same way as cause of action estoppel. In cause of action estoppel, when the issue is decided, that cause merges in the decision and can not be revived in a second action because it is gone. In issue estoppel, when the issue is decided, that issue merges, so to speak, in the decision and cannot be revived in a second action, even based on a separate and distinct cause of action, because it is gone.

Pan-Afric Holdings Ltd. v. Ernst v. Young LLP , [2007] B.C.J. No. 1033 (S.C.) at par. 62 per Frankel J.:

[62] Whether a dismissal in Maryland on the basis of an expired limitation period would operate as a bar to prosecuting this matter here is something I need not decide. There is some authority to the effect that it would not: see Lange, The Doctrine of Res Judicata in Canada, 2nd ed., Toronto: LexisNexis Butterworths, 2004, at 358.

Giles v. Westminster Credit Savings Credit Union, [2006] B.C.J. No. 1547 (S.C.) at par. 35, 38, 44-45 per Sigurdson J.:

[35] There is conflicting authority in Canada on the question of when a decision is sufficiently final for the purpose of issue estoppel: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Toronto: Butterworths, 2004) at p. 89. Can a decision be regarded as final for the purposes of issue estoppel when there is a pending appeal of a test case, or only after the appeal has been decided?

. . . .

[38] Obiter dicta from the Supreme Court of Canada cited in The Doctrine of Res Judicata in Canada, 2d ed., supra, suggests that there may be no finality to a decision for the purpose of issue estoppel until the appeal process has passed. Toronto (City) was a case that concerned an arbitrator’s decision that reached a conclusion contrary to the grievor’s earlier criminal conviction. Arbour J., for the Court, considered whether the re-litigation of his criminal conviction in an arbitration was an abuse of process. She said at paragraph 46:

A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through various mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned.

[emphasis added]

. . . .

[44] First of all, as to the third ground, who is a privy?

[45] In The Doctrine of Res Judicata in Canada, 2d ed., supra, the author describes what a privy is at p. 77:

A privy of a party has been variously defined in issue estoppel cases. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. Privity can be one of blood, title, or interest. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. A person who has no right to participate as a party in a proceeding lacks a due process requirement to make a finding of privity of interest. To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person. Privity requires parallel interest in the merits of the proceeding, not simply a financial interest in the result. However, a non-party who enters into a formal agreement with a party in a proceeding for disposing of the proceeds is a privy of that party and bound by the first proceeding.

Rodenkirchen v. Peters, [2006] B.C.J. No. 1547 (S.C.) at par. 6 per Macaulay J.:

[6] There is a live issue whether Ms. Rodenkirchen has standing. Separate proceedings to overturn a court order on the basis that it was obtained by fraud or through some other abuse of process are permitted: see D.J. Lange, The Doctrine of Res Judicata in Canada, Butterworth’s Canada Ltd. 2000, at 369.

Gubbels v. Fitterer, [2006] B.C.J. No. 1147 at par. 44, 46, and 48 per Parrett J.:

[44] Where res judicata is raised, the burden of proving it falls on the party advancing that issue and the court may look to the documentation behind the formal judgment, the reasons, the pleadings, and appeal materials, including factums (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham Ontario: Butterworths 2000 at pp. 12-14).

[46] The so-called same question test is the central feature of issue estoppel as is noted by author Donald J. Lange, where at p. 38 he observes that:

The traditional view of issue estoppel is that the same question has been decided. This means that the same question must have been decided, that is, actually decided, in the first proceeding. The Supreme Court of Canada has repeatedly maintained the traditional view of the same question test . . . In Grandview (Town) v. Doering, Ritchie J., [1976] 2 S.C.R. 621, speaking for the majority . . ., held that the same question test for issue estoppel is whether the question has been decided in the first proceeding, not whether the question could have been decided. If the question could have been decided, then cause of action estoppel applies.

[48] The fundamental question criteria has been discussed in a number of authorities, including R. v. Duhamel (1984), 57 A.R. 204. Perhaps the most useful summary of the authorities is at p. 41 of The Doctrine of Res Judicata in Canada, where the author says:

The fastidious approach to the same question test became a guiding principle in Heynen v. Frito-Lay Canada Ltd. [(1999), 179 D.L.R. (4th) 317 (Ont. C.A.) at 323]. Goudge J.A., for the court stated:

Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in earlier proceedings can be said to determine the issue in the subsequent proceeding.

… One criterion for the same question test is whether the same evidence is used in both proceedings.

It is not necessary that the question said to be estopped in the subsequent action be the main point or the ratio in the previous action. It is only necessary that it be an essential point or fundamental to the decision.

Williams v. College Pension Board of Trustees, 2005 BCSC 1211 at par. 54 per Sigurdson J.:

[54] The collateral attack rule, although not applicable on the facts of that case was described in Garland v. Consumers’ Gas Co., [2004] 1 S.C.R. 629, 2004 SCC 25 at [paragraph] 71:

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).

Telus Communications Inc. v. Telecommunications Workers Union, 2005 BCSC 378 at par. 21 per Rice J.:

[21] The most recent comprehensive discussion on abuse of process by the Supreme Court of Canada is found in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, where the Court applied the doctrine to an arbitration, stating:

[37] In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.

[38] The policy grounds supporting abuse of process by re-litigation are the same as the essential policy grounds supporting issue estoppel ([D.J. Lange, The Doctrine of Res Judicata in Canada, (2000)], 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 [page104] 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.

Mohl v.The University of British Columbia, 2004 BCSC 1238 at par. 38, 44 per Holmes J.:

[38] Issue estoppel prevents a litigant raising further an issue clearly decided in a previous proceeding. Cause of Action estoppel occurs when the cause of action has passed into a matter decided in a previous proceeding. [D.J. Lange, The Doctrine of Res Judicata in Canada, (Toronto: Butterworths, 2000); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460, 2001 SCC 44]

. . .

[44] D.J. Lange in The Doctrine of Res Judicata in Canada at p. 124 describes “cause of action” as fact determined. At p. 125 the learned author provides this test:

… Whether the cause of action in the first proceeding is the same as that sought to be enforced in the second proceeding does not depend upon technical considerations but upon matters of substance, that is, whether they are in substance identical. Decisions of cause of action estoppel defining the term, “cause of action”, apply the generally accepted definition of “cause of action”. A cause of action is the facts which give a person a right to judicial relief against another person. [emphasis added]

Engineered Controls v. Gas Equipment Supplies, 2003 BCSC 697 at par. 28 per Macaulay J.:

[28] As the order sought in the present case would dispose of the ECII claim in a manner similar to the result at trial, I prefer to apply the following statement from D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at 339:

As a general rule, the refusal to grant an interlocutory injunction or, alternatively, the granting of an interlocutory injunction, should have no issue estoppel effect on the trial judge….

Withler v. Canada(Attorney General), 2002 BCSC 820 at par. 49, 59 per Garson J.:

[49] The overlap between res judicata and stare decisis was noted by D.J. Lange in his text The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000). At p. 385 the author says that the doctrines have been used interchangeably, and that a court may apply the decisions of one proceeding to another through stare decisis rather than through issue estoppel. He notes that failing to follow a decision of a court of appeal given in the very same matter with which the judge is seized is “not only a breach of the doctrine of stare decisis, but a breach of the doctrine of issue estoppel as well.”

. . . .

[59] The plaintiffs correctly point to the ‘Rule in Henderson’ which is that the plea of res judicata applies not only to points upon which the court was actually required by the parties to pronounce a judgment, but also to every point which properly belonged to the subject of the litigation, and which the parties with reasonable diligence might have brought forward at the time (Henderson v. Henderson (1843), 67 E.R. 313 (Q.B.); D. J. Lange, The Doctrine of Res Judicata in Canada (supra) at p.50).

Bence v. Okanagan-Similkameen (Regional District), 2002 BCSC 1622 at par. 28 per Bennett  J.:

[28] In the book by D. Lange, The Doctrine of Res Judicata in Canada, (Toronto and Vancouver: Butterworths, 2000) the author sets out the key principles of issue estoppel at 23-24:

1. The same question test governs.

2. The question to be decided in the second proceeding must be the same question that has been decided in the first proceeding.

3. The question decided in the first proceeding, governing the same question test in the second proceeding, must be fundamental to the decision in the first proceeding, not collateral to the decision.

4. The question decided in the first proceeding, governing the same question test in the second proceeding, includes all the subject matter encompassing the question whether decided expressly or by necessary logical consequence.

5. If the question has been decided in the first proceeding, the same question cannot be relitigated in a second proceeding based on a separate and distinct cause of action.

6. The same parties, and their privies, cannot relitigate the same question in a second proceeding.

7. The decision in the first proceeding must be a final decision on the question.

8. The decision in the first proceeding must be a judicial decision on the question.

9. The decision-making forum in the first proceeding must have the jurisdiction to decide the question.

FEDERAL COURT OF CANADA (TRIAL DIVISION)

Balasingham v. Canada (Minister of Citizenship and Immigration), [2015] F.C.J. No. 429 (T.D.) at par. 24 per Tremblay-Lamer J..:

[24] However, it would not be appropriate to send this matter back for re-determination in the circumstances of this case because the officer could not have come to a different conclusion. While the court has a discretion to relieve against the harsh effects of issue estoppel where the usual operation of the doctrine would work an injustice (Danyluk at para 63; Schweneke v Ontario, [2000] OJ No 298 at para 38), it is not clear that an administrative tribunal has the same discretion to override the normal operation of issue estoppel in respect of a prior court decision. In Donald Lange, The Doctrine of Res Judicata in Canada, 3d ed (Markham: LexisNexis Canada Inc, 2010) at 118, 225-227, Lange writes that in Danyluk, the Supreme Court of Canada held that a court is only required to address the factors for and against the exercise of discretion when considering the application of issue estoppel in a tribunal-to-court context.

Jaballah (Re), [2010] F.C.J. No. 96 (T.D.) at par. 22, 30 per Dawson J.:

[22] However, special circumstances may operate to restrict the application in a second proceeding of both issue estoppel and cause of action estoppel. See: Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242 (C.A.). See also: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed., (Markham: LexisNexis 2004) at page 231.

. . .

[30] The special advocates rely upon Dr. Lange’s text, cited above, to support their submission. At pages 266 and 267 it is stated that “the new evidence must be practically conclusive of the matter.” Notwithstanding, at page 235 Dr. Lange writes, with respect to what effect the special circumstances must have upon the first proceeding, that “the case law, in the areas of fraud and new evidence, reflects a general principle that the special circumstances must ‘be demonstrably capable of altering the result” of the first proceeding. This is supported by the decision of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim (Nfld. C.A.) (1989), 75 Nfld. & P.E.I.R. 217. The apparently stronger statement at pages 266 and 267 is supported by reference to two Supreme Court decisions: Varette v. Sainsbury, [1928] S.C.R. 72 at page 76 and Dormuth v. Untereiner, [1964] S.C.R. 122.

Eli Lilly Canada Inc. v. Novopharm Ltd., [2008] F.C.J. No. 649 (Proth.) at footnote 1 to par. 17 per Tremblay-Lamer Proth.:

See discussions in Lange, Donald J., The Doctrine of Res Judicata in Canada, 2nd ed., Butterworth, 2004, at pages 89-100, 160-164, 389-390, and in particular, at page 89: “There is an unresolved conflict in decision-making in this area of the law in Canada”. Also, while there is a body of decisions of the Ontario Courts that have determined that decisions under appeal are nevertheless final for the purposes of issue estoppel, including Dableh v. Ontario Hydro (1994), 58 C.P.R. (3d) 237, [1994] O.J. No. 2771, decisions in this Court have appeared to not consider decisions final for the purpose of issue estoppel or abuse of process until all avenues of appeal had been exhausted: Novopharm Ltd. v. Eli Lilly and Co., [1998] F.C.J. No. 1634 (ratio decidendi at par. 29 to 32); see also Wells v. Canada (Minister of Transport) (1993), 48 C.P.R. (3d) 308, Cardinal v. Canada (1991), 47 F.T.R. 203 (reversed in part on other grounds at (1993), 164 N.R. 301), Starlight v. Canada [2001] F.C.J. No. 1685, and Nordic Laboratories Inc. v. Deputy M.N.R., [1996] F.C.J. No. 1067 at par. 9.

Sanofi-Aventis Canda Inc. v. Canada (Minister of Health, [2007] F.C.J. No. 747 (T.D.) at par. 56-57, 75-77 per Lemieux J.:

[56] In his reasons at paragraph 24, Justice Binnie set out his view as to the scope of issue estoppel:

“Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R. 420, at p. 422:

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added.]

This statement was adopted by Laskin J. (later C.J.), dissenting in Angle, supra, at pp. 267-68. This description of the issues subject to estoppel (“[a]ny right, question or fact distinctly put in issue and directly determined”) is more stringent than the formulation in some of the older cases for cause of action estoppel (e.g., “all matters which were, or might properly have been, brought into litigation”, Farwell, supra, at p. 558). Dickson J. (later C.J.), speaking for the majority in Angle, supra, at p. 255, subscribed to the more stringent definition for the purpose of issue estoppel. “It will not suffice” he said, “if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment.” The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceeding. In other words, as discussed below, the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that [page477] were necessarily (even if not explicitly) determined in the earlier proceedings.”

[57] In his book, The Doctrine of Res Judicata in Canada, Second Edition, Lexus-Nexus, 2004, Donald Lange states “this paragraph in Justice Binnie’s reasons in Danyluk, above, reflects the traditional view as to the scope of issue estoppel.”

[75] As recognized by the Supreme Court of Canada in Danyluk at paragraphs 56-58 and Toronto (City), at paragraph 46 for issue estoppel to operate, there must be a final decision which has not been appealed or internally reviewed where available.

[76] The thrust of the jurisprudence of this Court is that a decision in not final for the purposes of issue estoppel where there is an appeal pending or until the appeal period has expired or leave to appeal has been denied: Novopharm Ltd. v. Eli Lilly and Co. [1999] 1 F.C. 515 (T.D.); Benisti Import-Export Inc. v. Modes TXT Carbon Inc., [2002] F.C.J. No. 1081 (T.D.) at par. 17; Wells v. Canada (Minister of Transport) (1993), 48 C.P.R. (3d) (T.D.); Leblanc v. Canada [2003] F.C.J. No. 1005 (T.D.); Nordic Laboratories Inc. v. Deputy M.N.R. (1996), 64 A.C.W.S. (3d) 583 (Fed. T.D.) at 9).

[77] The theoretical support for the proposition the prior decision must be final so as to estopp a second decision is because (1) the second decision is not yet bound by the findings in the first decision (2) the appeal process in the first instance may have an impact on the issue in the second decision, e.g., if Mayne is successful in overturning the prohibition order it will make moot the eligibility of the ‘682 patent to be on the Register, (see Lange, above, at pages 94-95).

Sanofi-Aventis Canda Inc. v. Novopharm Ltd., [2006] F.C.J. No. 1431 (T.D.) at par. 26 per Tremblay-Lamer J.:

[26] The doctrine of abuse of process was discussed at length by the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77. I recently reviewed the doctrine and the Supreme Court’s decision in Aventis Pharma Inc. v. Apotex Inc., 2005 FC 1504, [2005] F.C.J. No. 1843 (F.C.)(QL) at paragraphs 28 to 29:

[28] The doctrine provides the Court with an inherent and residual discretion to prevent the misuse of its procedure. The doctrine is flexible and is “unencumbered by the specific requirements of res judicata”: C.U.P.E., supra, at para. 42. Whereas issue estoppel focuses “on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicate process”: C.U.P.E., supra, at para. 51. As explained by Layden-Stevenson J. in AB Hassle, supra, at para. 94:

While critics have argued that when the doctrine of abuse of process is used as proxy for issue estoppel it obscures the true question, while adding nothing but a vague sense of discretion, that is not so. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative function of courts. The focus is less on the interests of the parties and more on the integrity of judicial decision making as a branch of the administration of justice. When the focus is properly on the integrity of the adjudicative process, the motive of the party who seeks to relitigate cannot be a decisive factor.

[29] Abuse of process has a strong public policy dimension. Arbour J. in C.U.P.E., supra, stated that the policy grounds for both issue estoppel and abuse of process are essentially the same. At pages 103-104, she quoted from D. J. Lange, The Doctrine of Res Judicata in Canada (2000) 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.

Thambituria v. Canada (Solicitor General), 2006 F.C. No. 750 (T.D.) at par. 34 per Pinard J.:

[34] Donald Lange, a well-respected author on the doctrine of res judicata summarizes the common law principles on abuse of process in The Doctrine of Res Judicata in Canada, 2nd ed. (Canada, LexisNexis Canada Inc., 2004), at pages 375-376:

(1) The doctrine is not encumbered by the specific requirements of res judicata.

(2) The proper focus for the application of the doctrine is the integrity of the judicial decision-making process.

(3) Relitigation may be necessary to enhance the credibility and effectiveness of judicial decision-making when, for example, there are…special circumstances.

(4) The interests of the parties, who may be twice vexed by relitigation, are not a decisive factor.

(5) The motive of a party in relitigating a previous court decision for a purpose other than undermining the validity of the decision is of little import in the application of the doctrine.

(6) The status of a party, as a plaintiff or defendant, in the relitigation proceeding is not a relevant factor.

(7) The discretionary factors that are considered in the operation of the doctrine of issue estoppel are equally applicable to the doctrine of abuse of process by relitigation.

Aventis Pharma Inc. v. Apotex Inc., [2005] F.C.J. No. 1843 (T.D.) at par. 29 per Tremblay-Lamer J.:

[29] Abuse of process has a strong public policy dimension. Arbour J. in C.U.P.E., supra, stated that the policy grounds for both issue estoppel and abuse of process are essentially the same. At pages 103-104, she quoted from D. J. Lange, The Doctrine of Res Judicata in Canada (2000) 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.

Canada (Canadian Human Rights Commission) v. Canada Post Corp., [2004] F.C.J. No. 439 (T.D.) at par. 31 per Von Finckenstein J.:

[30] It is well established that issue estoppel is one of the two legs of the doctrine of res judicata. The doctrine of res judicata is a fundamental doctrine of the justice system of Canada. It has two distinct forms: issue estoppel and cause of action estoppel. (Donald J. Lange: The Doctrine of Res Judicata in Canada, Butterworths 2000, at p. 1.)

Budget Steel Ltd. v. Seaspan 175 (The), 2003 FCT 390 at par. 54 per Hargrave P.:

[54] Counsel for Budget Steel refers to various cases in which issue estoppel has been founded upon a default judgment: T & D Roofing Ltd. v. C.I.B.C., an unreported 29 June 1993 Saskatchewan Court of Queen’s Bench decision in action no. 112/1992 (Yorkton), [1993] Sask. D. 3711-01, Harland v. Williams, an unreported BC Supreme Court decision of 11 May 1993, Vancouver Registry C896028, [1993] B.C.J. No. 1047, Brass Tacks Concrete and Drilling Ltd. v. Gateway Construction and Engineering Ltd. (2000), 151 Man.R. (2d) 284 (MBQB), Chackowsky v. Precision Toyota Ltd. (1990), 64 Man.R. (2d) 156 (MBQB) and Wawanesa Mutual Insurance Co. v. Carson, an unreported 16 June 2000 decision in action 9703-17288 (Edmonton), [2000] Alta. D. 770.69.60.20-01. However these cases are to a degree fact-specific. In most instance the case contains a caveat to the effect that while a default judgment can be a foundation for res judicata, caution ought to be exercised. Indeed, Lange on The Doctrine of Res Judicata in Canada, Butterworth, at 191 and following, concedes that default judgments will support both issue estoppel and cause of action estoppel “however the full vigour of these doctrines may not apply. One reasons is that it is not a judgment actually determined or pronounced by the courts.”. (Pages 191 and 192). Thus Lange espouses a conservative application of estoppel in the case of default judgments. Quite correctly counsel for Budget Steel goes on to refer to other cases in which default judgment has not supported a res judicata.

Yamani v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1162 at par. 21 per Kelen J.:

[21] The key tenet of cause of action estoppel is that a plaintiff must bring forward the subject matter of the whole case relating to the cause of action at one time, once and for all, and every remedy flowing from the cause of action based on the subject matter, see Donald J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at p. 111. The same principle applies to defendants, who must bring forward every defence based on the subject matter at one time.

MANITOBA COURT OF QUEEN’S BENCH

Putter v. Intelligent Renovation and Inspection Services Inc., [2013] M.J. No. 411 (Q.B.) at par. 28 per Martin J.:

[28] As to the exercise of my discretion, I acknowledge Ms. Putter’s argument – that caution must be exercised in applying res judicata based on a default judgment. Donald J. Lange in The Doctrine of Res Judicata in Canada, 2d ed. (Markham: LexisNexis Canada Inc., 2004) comments at page 344:

Default judgments, which are judgments ex parte, will support a plea of issue estoppel or cause of action estoppel. However, the full vigour of these doctrines may not apply. One reason is that it is not a judgment actually determined or pronounced by the courts ….

Whether it is issue estoppel or cause of action estoppel, the doctrine is conservatively applied to default judgments. In Heartland v. Williams, [1993] B.C.J. No. 1047, Finch J. summarized the rationale for a cautionary approach to default judgments. Finch J. stated:

It appears to be well established that a restrictive operation must be given to an estoppel arising from a default judgment. A judgment in default can only be used to estop what must “necessarily and with complete precision” have been determined in that proceeding. The reasoning behind this cautious approach to estoppel pleas based on judgment obtained in default, is that the policy considerations which underlie the principle of estoppel per rem judicatam do not necessarily apply to uncontested proceedings. There may be many reasons why a party might allow a default judgment to be entered against him or her. The litigation may be inconvenient, expensive, or the party might simply be unaware that he has a potential defence or counterclaim. Courts appear generally to be of the view that this should not prevent a litigant from subsequently raising important issues which were not necessarily decided by the default judgment.

Incorporated Broadcasters Ltd.  v. CanWest Global Communications Corp., [2008] M.J. No. 400 (Q.B.) at par. 53, 60 per Monnin J.:

[53] The doctrine of res judicata is the proposition that once a matter has been decided, it cannot be re-litigated. The doctrine has two distinct forms, namely, issue estoppel and cause of action estoppel. Under the first aspect, the litigant is estopped from raising an issue in a subsequent proceeding if the issue has been decided in a previous one. The second aspect, cause of action estoppel, means that a litigant is estopped as the same cause of action has previously been adjudicated. (Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed., (Toronto: LexisNexis Canada Inc., 2004) at p. 1.)

[60] As stated by Lange in The Doctrine of Res Judicata in Canada at pp. 384-385:

The doctrine of abuse of process by relitigation is largely a response to the technical requirements of issue estoppel. …

Although it remains to be seen whether the evolving doctrine of abuse of process by relitigation will be shrouded in the technical cloak of issue estoppel, it is clear that litigating the same question twice is an abuse of process. …

It may, therefore, be summarized from the case law that the application of abuse of process is to avoid the relitigation of the same question in the same way that issue estoppel is traditionally applied, that is, the same question must have been actually decided and the question must have been fundamental to the decision.

CLE Owners Inc. v. Wanlass, [2004] M.J. No. 78 (Q.B.) at par. 31 per Greenberg J.:

[33] As explained in Lange, The Doctrine of Res Judicata in Canada (at p. 370):

There are two kinds of lack of jurisdiction for the purposes of a judgment. An important distinction must be made between a judgment rendered where there is no jurisdiction, in and of itself, and a judgment rendered where there is no jurisdiction although jurisdiction is assumed to exist because of a set of facts which are assumed to exist. The former is a nullity and assailable in a subsequent proceeding as a defence to an estoppel argument. It is not viewed as a collateral attack on the judgment. The latter is only assailable by way of appeal. If it is attacked in a subsequent proceeding, it is viewed as a collateral attack on the judgment.

R. v. Rybachuk, 2001 MBQB 225 at par. 17 per Monnin J.:

[17] It should be noted that unlike the special pleas of autrefois acquit and autrefois convict, there is no plea of issue estoppel. It is a defence. It is part of the general plea of not guilty and the common law defences protected by the Criminal Code. See D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at 267.

NEW BRUNSWICK COURT OF QUEEN’S BENCH

513012 N.B. Inc. v. New Brunswick, [2013] N.B.J. No. 294 (Q.B.) at par. 12-13 per Morrison J.:

[12] Support for the above proposition is found in D.J. Lange, The Doctrine of Res Judicata in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2010):

As a general rule, the refusal to grant an interlocutory injunction or, alternatively, the granting of an interlocutory injunction should have no issue estoppel effect on the trial judge. A good summary of the rationale is set out in Edmonton Catholic School District No. 7 v. Edmonton (City), [1977] A.J. No. 744. Miller J. stated:

Counsel for the Defendants also argued that the question of onus, on which a declaratory judgment is sought in this action, has already been decided by Steer, J., when he refused to grant the interlocutory injunction and that the matter is therefore res judicata. I do not think this position is an accurate reflection of the law nor of the practice in this jurisdiction. An interlocutory injunction, if granted, is only designed to preserve the status quo, or to prevent further problems, until the court has a full opportunity to hear all sides to a dispute and render a decision. It is a discretionary order. If there is merit to the Defendants’ suggestion that a refusal by a judge to grant an interlocutory injunction pending the trial of the action amounts to a decision on the issue giving rise to the application of the res judicata principle, then logically, it should follow that if the judge had granted the interlocutory injunction the matter would also have been decided and was now res judicata. I hardly think the Defendants would have been prepared to accept that position in this action had the injunction been granted by Mr. Justice Steer. I am therefore of the opinion that the decision of a judge on an interlocutory injunction application does not and should [not] prevent the trial judge from conducting a full inquiry into all aspects of the matter at the trial of the action and coming to a decision which might or might not agree with the position of the judge who granted or refused the interlocutory injunction application and propose [to] deal with the matter on that basis.

The refusal to grant an interlocutory injunction does not estop an issue central to the case and does not finally determine the cause of action. A final decision refusing an interlocutory injunction means the contrived finality natural to such an order, namely, until the trial or hearing which addresses the order. The refusal relates only to an injunction pending trial, deals with the balance of convenience, and does not make a decision on the merits of an issue. (emphasis added)

[13] And at page 459:

A motion refusing to grant, or granting, an interlocutory injunction does not create an estoppel in a summary judgment motion.

MacCallum v. Moncton Golf & Country Club, [2007] N.B.J. No. 277 (Q.B.) at par. 18 per Bell J.:

[18] The Golf Club submits that the rule in Henderson does not apply to a separate and distinct cause of action where the defendant in the second action was also the defendant in the first. Simply stated, the Golf Club argues that the rule in Henderson is limited to the principle that a defence foregone cannot be used to convert the defendant to a plaintiff in a subsequent action. See, Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd Edition (Canada: LexisNexis Canada Inc.: 2004) at 129.

A Solicitor v. Law Society of New Brunswick, [2004] N.B.J. No. 81 (Q.B.) at par. 23 per Guerette J.:

[23] In his text, The Doctrine of Res Judicata in Canada, Donald J. Lang[e] sets out the foundation for the doctrine (at p. 14):

The doctrine of res judicata is a corner stone of the justice system in Canada. The foundation of the doctrine is traditionally grounded upon two policy considerations: firstly, the ground of public policy that it is in the interest of the public that an end be put to litigation, and secondly, the ground of individual right that no one should be twice vexed by the same cause.

NEWFOUNDLAND SUPREME COURT

Memorial University of Newfoundland v. Newfoundland and Labrador Assn. of Public and Private Employees, Local 7804, [2014] N.J. No. 314 (S.C.) at par. 31-33 per Paquette J.:

[31] In The Doctrine of Res Judicata In Canada, 3rd ed. (Markham: LexisNexis Canada Inc., 2010) at 1, Dr. Donald Lange discusses its meaning:

The doctrine res judicata is a fundamental doctrine of the justice system in Canada. It has two distinct forms: issue estoppel and cause of action estoppel.

[32] Dr. Lange explains, at 1, that issue estoppel means that a party is estopped from further proceedings because “the issue has clearly been decided in the previous proceeding”.

[33] At 9 of his text, Dr. Lange addresses the doctrine of res judicata as an “equitable estoppel”:

Res judicata is a “fundamental doctrine of the justice system.” Where it applies, it serves as an equitable estoppel. The test is to arrive at justice or fairness. There must be “a judicial balance between finality, fairness, efficiency, and authority of judicial decisions.” Of the test of justice, Jackson J.A., in Iron v. Saskatchewan (Minister of the Environment & Public Safety), stated:

The doctrine of res judicata, being a means of doing justice between the parties in context of the adversarial system, carries with its tenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard.

Nordica Foods A/s v. Eimskip, USA, Icelandic Steamship Inc., [2013] N.J. No. 241 (S.C.) at par. 72 per LeBlanc J.:

[72] A privy of a party is equally barred by issue estoppel from re-litigating an issue which as been decided in a prior proceeding. As to what qualifies as a “privy” Donald J. Lange, author of The Doctrine of Res Judicata in Canada, wrote:

A privy of a party has been variously defined in issue estoppel cases. Privity can be one of blood, title, or interest. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. The privy must have notice of the previous proceeding to be bound by it. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. A person who has no right to participate as a party in a proceeding lacks a due process requirement to make a finding of privity of interest. To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person. Privity requires parallel interest in the merits of the proceeding, not simply a financial interest in the result. However, a non-party who enters into a formal agreement with a party in a proceeding for disposing of the proceeds is a privy of that party and bound by the first proceeding. To establish privity, it is not enough that the non-party have control over the first proceeding. The non-party must be taken into the confidence of the party in the first proceeding. A non-party in an earlier proceeding is a privy on the basis of being involved in the first proceeding by being present and by giving evidence. The term “parties” includes those who are named in the proceeding and those who have an opportunity to attend the proceeding. The measure of whether a party in a subsequent proceeding is a privy of a party in the earlier proceeding requires that the same question be involved in both proceedings. The forum must also have jurisdiction over the non-party.

John Doe (HGM #1) v. Roman Catholic Episcopal Corp. of St. John’s, [2011] N..J. No. 389 (S.C.) at footnote 2 per LeBlanc J.:

In Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed., (Canada: LexisNexis Canada Ltd., 2010) at page 11 it is stated that there are six types of estoppel that have developed in Canada to support the application of res judicata. These are:

(1) Issue estoppel bars an issue which has been actually been decided in the first proceeding.

(2) Issue estoppel under the rule in Henderson bars an issue which could have been brought in the first proceeding.

(3) Cause of action estoppel, the true res judicata, bars a cause which has actually been decided in the first proceeding.

(4) Cause of action estoppel under the rule in Henderson bars a cause which could have been brought in the first proceeding.

(5) Abuse of process by relitigation bars a second proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined.

(6) Collateral attack bars a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum.

In Re Hickman Equipment (1985) Ltd. (In Receivership), 2005 NLTD 140 at par. 47 per Hall J.:

[47] . . . (iv) The basis of the cause of action was or could have been argued.

Yes. In The Doctrine of Res Judicata in Canada (Second Edition) Butterworths 2004 at 51-52 the author, Donald J. Lange states:

The fundamental nature of the question cannot be changed by advancing it in a different fashion. Where different legal consequences flow from the same factual question, or the same factual question can be cloaked in different legal classifications or categorizations, the question is estopped since “re-engineering” a claim and the “never-ending ingenuity of counsel to create new formulations and characterizations cannot displace” issue estoppel.

…Within any one issue, there may be several arguments available which assist a party to secure a favourable determination of the issue and, although a party may fail to advance certain arguments, the issue itself may nevertheless be estopped.

Furlong v. Avalon Bookkeeping Svs. Ltd., 2003 NLSCTD 140 at par. 12-16 per Hall J.:

[12] In his text The Doctrine of Res Judicata in Canada, Dr. Donald J. Lange, B.A., LL.B., Ph.D. (Butterworths – Toronto), at p. 1 commences a discussion of the general nature of res judicata. He states:

“The doctrine of res judicata is a fundamental doctrine of the justice system in Canada. It has two distinct forms: issue estoppel and cause of action estoppel. It is part of the general law of estoppel comprising estoppel by conduct or representation, estoppel by deed, promissory estoppel, proprietary estoppel, and res judicata. … When res judicata applies, a litigant is ‘estopped’ by the previous proceeding. In their simplest definitions, issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding.” [Footnotes omitted.]

[13] At p. 2 Dr. Lange continues:

“… The best early pronouncement of the meaning of res judicata by the Supreme Court of Canada is in the 1893 decision in Farwell v. R. [(1893), 22 S.C.R. 553 at 558]. King, J. defined the general meaning, respectively, of both cause of action estoppel and issue estoppel, stating:

Where the parties (themselves or privies) are the same, and the cause of action is the same, the estoppel extends to all matters which were, or might properly have been, brought into litigation. Where the parties (themselves or privies) are the same, but the cause of action is different, the estoppel is as to matters which, having been brought in issue, the finding upon them was material to the former decision.”

[14] At p. 4 of his work Dr. Lange continues:

“The doctrine of res judicata is a cornerstone of the justice system in Canada. The foundation of the doctrine is traditionally grounded upon two policy considerations: firstly, the ground of public policy that it is in the interest of the public that an end be put to litigation, and secondly, the ground of individual right that no one should be twice vexed by the same cause. …”

[15] At p. 5 Dr. Lange continues:

“… The two considerations are equally applicable to the disposition of an entire proceeding and to the disposition of an interlocutory proceeding. But they are not equal between themselves. The public policy consideration outweighs the consideration of the individual. Thus, the social necessity to respect the finality of judgments is paramount. To these two traditional policy grounds may be added two other substantive considerations: firstly, the irrebuttable legal presumption of the validity of judgments, and secondly, the court’s reluctance to deprive a litigant of the opportunity to litigation adjudicated upon the merits. … Other policy considerations have been expressed by the courts in different ways. They may be distilled into two general statements: firstly, the doctrine of res judicata should apply to avoid the scandal of conflicting decisions in order to promote confidence and predictability in the courts, and secondly, the doctrine should be applied to avoid the squander of the courts’ scarce resources and the imposition of additional costs to the litigants.” [Footnotes omitted.]

[16] At p. 6 Dr. Lange continues:

Res judicata is a fundamental doctrine of the justice system which has not been rendered obsolete by the Canadian Charter of Rights and Freedoms. The test is to arrive at justice or fairness. Of the test of justice, Jackson J.A., in Iron v. Saskatchewan (Minister of the Environment & Public Safety), stated:

The doctrine of res judicata, being a means of doing justice between the parties in the context of the adversarial system, carries with its tenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard.

Of the test of fairness, Conrad J.A., in Wavel Ventures Corp. v. Constantini, stated:

The principles are easily stated, less easily applied. Generally speaking, res judicata is a rule of fairness. The administration of justice could not sustain repeated attacks on judgments resulting in retrials of issues and causes. Being a rule of fairness, however, it must not deprive a litigant of a retrial in whole, or with respect to issues, in the appropriate circumstances. The authorities recognize the need to balance the competing issues of fairness, and exceptions to the doctrine of res judicata [that] have developed.” [Footnotes omitted.]

NOVA SCOTIA SUPREME COURT

Fancy v. Clayton Professional Centre Ltd., [2007] N. S. J. No. 758 (S.C.) at par. 22 per Davidson J.:

[22] This case was referred to by Justice Roscoe in 2301072 Nova Scotia Ltd. v. Lienaux 234 N.S.R. (2d) 185. In that case Justice Roscoe dealt with the issue of privity and made reference with approval to The Doctrine of Res Judicata in Canada, Donald J. Lange, Butterworths, 2000 and in particular the comments at page 71:

… For the purpose of issue estoppel, a privy of a party has been variously defined. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. Privity can be one of blood, or title, or interest. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. To determine whether a person has a participatory interest in the outcome of the proceeding, is to determine whether the outcome could affect the liability of that person. A non-party in an earlier proceeding is a privy on the basis of being involved in the first proceeding by being present and by giving evidence. The term “parties” includes those who are named in the proceeding and those who have an opportunity to attend the proceeding.

When there is a finding that a privy of a party is estoppel by issue estoppel, the doctrine of estoppel by conduct or representation has, on occasion, also been applied to that person. Factors which have been considered in applying estoppel by conduct or representation are similar to factors which have been considered to establish a privy of a party, namely, having knowledge of the previous proceeding, a clear interest in the proceeding, the ability to intervene as a participant but choosing to stand-by and watch, active participation in the previous proceedings by giving evidence, and being part of the litigation team …

Smith v. Doucette, [2005] N. S. J. No. 758 (S.C.) at par. 9 per Pickup J.:

[9] In The Doctrine of Res Judicata in Canada, 2nd Ed. (2004), Donald J. Lange put it thus at p. 444:

To rely upon a prior conviction as prima facie evidence, the particular violation, conviction, and the surrounding circumstances should be pleaded as material facts relevant to the civil proceeding. In proving the doctrine of prima facie evidence, a court may look behind a certificate of conviction to the indictment, to the reasons for judgment, and to the transcript of the previous proceedings.

The failure of an accused to testify in a criminal proceeding which results in a conviction may be a factor to be considered in a civil proceeding. Other factors to be considered are: not being present at the criminal trial, not being represented by counsel at the criminal trial, and not being able to exercise the right to make full answer and defence at the criminal trial.

Imperial Oil Ltd. v. White, [2004] N. S. J. No. 380 (S.C.) at par. 67 per Murphy J.:

[67] The rule against collateral attack has recently been described as follows by the Supreme Court of Canada in Garland v. Consumers’ Gas Co., [2004] S.C.J. No. 21:

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).

ONTARIO SUPERIOR COURT OF JUSTICE

Ramnarace v. Home Trust Co., [2014] O. J. No. 2647 (S.C.J.) at par. 23 per Donahue J.:

[23] I refer to the text by Justice Donald Lange, The Doctrine of Res Judicata in Canada, 2nd Ed. (Toronto: LexisNexis Butterworths, 2004) at page 4,

“The doctrine of res judicata is a cornerstone of the justice system in Canada. The foundation of the doctrine is traditionally grounded upon two policy considerations: firstly, the ground of public policy and that it is in the interest of the public that an end be put to litigation, and secondly, the ground of individual right that no one should be twice vexed by the same cause.”

Salasel v. Cuthbertson, [2014] O. J. No. 2407 (S.C.J.) at par. 22 per Morgan J.:

[22] The nominal torts that are referenced in the Statement of Claim do not change the fact that it is the legal costs of the prior Application and appeals that are at the heart of the claim. The approach to be taken to such a claim is summed up in Donald Lange, The Doctrine of Res Judicata in Canada (3d ed.), at p. 55: “The fundamental nature of the question cannot be changed by advancing it in a different fashion [. . .] Where the question is raised in the pleadings in the first action and then agreed upon, issue estoppel applies in the second action.”

Magder v. Ford, [2013] O. J. No. 299 (S.C.J. Div.Ct.) at par. 53, 55 per the Court:

[53] ‘Collateral attack’ is well defined in the following excerpt from Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed. (LexisNexis), p. 463:

Collateral attack cases involve a party, bound by an order, who seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum.

. . .

[55] The appellant emphasizes the words in the first sentence of this quotation that show a court order stands, provided the court had jurisdiction to make the order. As Lange states, above at p. 464, ‘Where the judgment is attacked for lack of jurisdiction, there is no collateral attack because the validity of the judgment, and its binding effect, is in question.’ . . .

Toronto (City) v. Rexlington Heights Ltd., [2013] O. J. No. 76 (S.C.J.) at par. 29 per Morgan J.:

[29] Ms. Ross’ answer to this is quite straightforward. She cites the Court of Appeal’s decision in Re Bagaric and Juric (1984), 44 O.R. (2d) 638 for the proposition that, “Being new legislation incorporating a new right, no question of issue estoppel or cause of action estoppel can arise …” She puts the matter in much the same way as Donald J. Lange puts it in his text, The Doctrine of Res Judicata in Canada, 3rd edn. (Markham: LexisNexis Canada, 2010), at p. 56: “[a] question raised in an earlier proceeding cannot give rise to estoppel in a later proceeding where the same question is raised on the basis of new legislation creating a new right.”

Gravelle v. Ontario, [2012] O. J. No. 4388 (S.C.J.) at par. 133 per Quigley J.:

[133] However, a consent dismissal of an action may feed a finding of res judicata. On the first element, Ground J. held in, Reddy v. Oshawa Flying Club, that “a consent order which ends an action is of the same effect for purposes of the res judicata doctrine as a judgment issued by the court on completion of a trial or hearing”. On the second element, in The Doctrine of Res Judicata in Canada, Donald Lange states that non-parties are privy when their employer is a named party, as is the case here, and that “adding new party defendants will not suffice to avoid cause of action estoppel where these additional defendants were known or ought to have been.”

Canadian Union of Public Employees, Local 79 v. Toronto (City), [2012] O. J. No. 1293 (S.C.J. Div.Ct.) at par. 51 per Lederman J., for the court:

[51] While the classic test for res judicata would normally require a decision-maker to consider whether there were “special circumstances”, in this case, the Union raised no special circumstances before Arbitrator Randall, such that there was nothing for him to consider with respect to this exception to res judicata. In any event, a failure to deliver a (quasi)constitutional argument that might reasonably have been raised previously, by itself, is not an example of “special circumstances” that would justify an exemption from res judicata: see Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed., (Markham, ON: Lexisnexus, 2010), at p. 462.

Canwest Publishing (Re), [2011] O. J. No. 3471 (S.C.J.) at par. 29 per Pepall J.:

[29] The issue engaged by this case is the second precondition which relates to finality. In The Doctine of Res Judicata in Canada, the author, Donald J. Lange, writes that there is an unresolved conflict in the law relating to the effect of the appeal process on the finality of a decision for the purpose of issue estoppel. He reviews numerous decisions that hold that a pending appeal does not preclude the application of issue estoppel and others that do. He also refers to Supreme Court of Canada obiter dicta and particularly Toronto (City) v. CUPE, Local 796, in which Arbour J. wrote:

“A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned.”

McRitchie v. Natalie, [2011] O. J. No. 2489 (S.C.J.) at par. 20 per Tausendfreund J.:

[20] I am also guided by these comments of the author of The Doctrine of Res Judicata in Canada, 3d edition at p. 351:

The traditional view of a consent judgment is that it is a judgment of the court, not an agreement between the parties to the proceeding, and it is enforceable in the same manner as if it had not been created by consent, but by the court on completion of a trial or hearing. It is to be regarded as a judgment after a hearing on the merits: Whitmell v. Ritchie, [2009] O.J. No. 2064 (Div. Ct.) at para. 42.

Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre, [2010] O. J. No. 3865 (S.C.J.) at par. 206, 238 per Polowin J.:

[206] . . .Estoppel extends to the material facts and the conclusions of law or of mixed fact and law that were necessarily, even if not explicitly, determined in the earlier proceeding. Further, as noted by Donald J. Lange, in the text The Doctrine of Res Judicata in Canada, 2nd ed. (Markham: Butterworths, 2004), obiter dicta is not fundamental and may not create an estoppel.

[238] In The Doctrine of Res Judicata in Canada, supra, the principles with respect to abuse of process are summarized as follows at pages 375-376:

(1) The doctrine is not encumbered by the specific requirements of res judicata.

(2)The proper focus for the application of the doctrine is the integrity of the judicial decision-making process.

(3) Relitigation may be necessary to enhance the credibility and effectiveness of judicial decision-making when, for example, there are special circumstances.

(4) The interests of the parties, who may be twice vexed by relitigation, are not a decisive factor.

(5)The motive of a party in relitigating a previous court decision for a purpose other than undermining the validity of the decision is of little import in the application of the doctrine.

(6)The status of a party, as a plaintiff or defendant, in the relitigation proceeding is not a relevant factor.

(7) The discretionary factors that are considered in the operation of the doctrine of issue estoppel are equally applicable to the doctrine of abuse of process by relitigation.

Stojanic v. Bulut, Ontario Court File No. 05-CV-294945PD2 (S.C.J. Master), December 30, 2008 at par. 7, 9 per Master Birnbaum:

[7] Counsel for the plaintiff raised the doctrine of collateral attack. In his text The Doctrine of Res Judicata in Canada[2], Donald Lange writes:

… A valid and binding judgment, or order of any kind, may be attacked directly in only three ways: (1) by appealing or quashing the judgment, (2) by an application to the court under the rules of civil procedure to vary the judgment, for example, on the basis of new evidence, and (3) by a separate action to set aside the judgment on the basis of fraud. A judgment cannot be attacked indirectly, that is collaterally. if a proceeding is for a cause other than attacking a judgment directly, an attack on the judgment incidental to the cause is barred by the doctrine of collateral attack. Put another way, “a decision of a superior court is not subject to judicial review in another action…”

[9] Lange also discusses at p. 407 the distinction of collateral attack and issue estoppel. He says, “The same parties test for estoppel is not a test for the application of the doctrine of collateral attack.” Collateral attack is not a doctrine to be applied only to prevent the original litigant from relitigating an issue; it also can apply to persons not a party to the original litigation.

Slade v. Lopelle, [2008] O. J. No. 5208 (S.C.J.) at par. 17 per Kane J.:

[17] There is a legal principle relevant to the action and it’s relationship to the first action, known as res judicata. Res Judicata has been held by the Supreme Court to mean “something that has clearly been decided” (R. v. Duhamel (1984), 15 C.C.C. (3d) 491 at 497), and as something that “has passed into a matter adjudged” (R. v. Riddle, [1980] 1 S.C.R. 380 at 385). It is founded in two broad policy considerations: “firstly, the ground of public policy that it is in the interest of the public that an end be put to litigation, and secondly, the ground of individual right that no one should be twice vexed by the same cause” (Donald J. Lange, The Doctrine of Res Judicata In Canada, 2 ed. (Markham: LexisNexis, 2004) at 4).

McIntyre v. Connelly, [2008] O. J. No. 1097 (S.C.J.) at par. 21 per Himmel J.:

[21] The purpose of Rule 21 and Rule 25 is to eliminate frivolous or legally unfounded claims at the earliest stage possible. By doing so, the court is shortening the length of trials and reducing costs for the litigants in appropriate circumstances. It is also preventing prejudice from continuing. There are clear policy reasons including preserving the resources of the parties, upholding the integrity of the legal system in order to avoid inconsistent results and protecting the principle of finality which is crucial to the administration of justice: see Donald J. Lang, The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000) at 347 cited in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.) Local 79 [2003] 3 S.C.R. 77 per Arbour J. This is one such case where, for numerous reasons outlined, including policy reasons, it is appropriate to grant the relief available under the Rules at this stage.

R. v. Martin, [2008] O. J. No. 1596 (S.C.J.) at par. 10, 12 per O’Connor J.:

[10] Relying on the principles set out by Donald J. Lange in The Doctrine of Res Judicata in Canada 2nd ed. (LexisNexis Butterworths, 2004), the Respondent submits that all the prerequisites for the doctrine of issue estoppel apply in this case:

the question to be decided in the second proceeding is the same question that has been decided in the first proceeding;

the question decided in the first proceeding is fundamental to the decision in the first proceeding, not collateral to the decision;

the question decided in the first proceeding includes all subject matter encompassing the question whether decided expressly or by necessary logical consequence;

the decision in the first Proceeding is a final decision on the question;

the decision in the first Proceeding is a judicial decision; and

the decision-making forum in the first proceeding held jurisdiction to decide the question.

[12] The Respondent also notes that issue estoppel applies to a second motion in the same proceeding dealing with the same issue, relying on Lange’s chapter on “Dispositions Without a Trial”. He argues that parties in the first motion must bring forward all subject matter germane to the motion, and all subject matter that could have been brought forward on the first motion by exercise of reasonable diligence. Mr. Brown was available to give evidence before Clements J., but did not do so. The Crown was put on notice that this was an issue. The Respondent argues that it was incumbent upon the Crown to put all material before the court, and it cannot now file new evidence on a new motion. The rule in Leier v. Shumiatcher (1962), 37 W.W.R. 605 (Sask. C.A.) applies. Where the first motion is based on inadequate material, issue estoppel will apply to a second motion based on more complete material.

Lynch v. Segal, [2007] O. J. No. 4983 (S.C.J.) at par. 57 per Herman J.:

[57] The respondents also point to the principle that, in order for the doctrine of issue estoppel to apply, the question decided in the first proceeding must be fundamental, not collateral to the decision (Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (LexisNexis Canada, 2005) at p. 25). I do not agree that the issue of the vesting of the lands was a collateral one. Both the trial judge and the Court of Appeal fully canvassed the issue; indeed, in the Court of Appeal, the issue of the appropriateness of the vesting order was the focus of the decision.

Brookfield Lepage Johnson Controls Facilities Management Services Ltd.  v. Ontario Labour Relations Board, [2007] O. J. No. 490 (S.C.J.) at par. 21 per Cumming J.:

[27] The employers say there is estoppel by conduct on the part of the Council. The employers argue that the evidence establishes that in the circumstances the Council is either a party or a privy to the Settlement such that it is an abuse of process for the Council to now bring a second proceeding that mirrors the issues raised in the 1998 proceeding and resolved through the Settlement. See generally, Donald J. Lange, The Doctrine of Res Judicata in Canada (2d ed.: Lexis Nexis Butterworths) at 387.

Martin v. Goldfarb, [2006] O. J. No. 2768 (S.C.J.) at par. 62 per Perrel J.:

[62] Privity, which is not a precise concept, can be established by blood (heirs and successors), title (for example, landlord and tenant), or community of interest. More generally, privity is established if there is a sufficient degree of identification between persons such that it would be just to hold that the decision to which one is a party should be binding in proceedings to which the other is a party: Bank of Montreal v. Mitchell (1997), 143 D.L.R. (4th) 697 (Ont. Gen. Div.), affd. (1997), 151 D.L.R. (4th) 574 (C.A.); Machlin v. Tomlinson (2000), 46 O.R. (3d) 550 (S.C.J.); Banque Nationale de Paris (Canada) v. Canadian Imperial Bank of Commerce (2000), 195 D.L.R. (4th) 308 (Ont. C.A.); Las Vegas Strip Ltd. v. Toronto (City) (1997), 30 O.R. (3d) 286 (Gen. Div.), affd. (1997), 32 O.R. (3d) 651 (C.A.); Gleeson v. J. Wippel & Co. Ltd., [1977] 3 All E.R. 54 (Ch. D.); Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Toronto: LexisNexis Butterworths, 2004), pp. 151-55.

Penny v. Royal & Sun Allliance Insurance Co. of Canada, [2006] O. J. No. 2858 (S.C.J.) at par. 29 per Smith J.:

[29] Issue estoppel is a distinct form of res judicata. It means “that a litigant is estopped because the issue has clearly been decided in the previous proceeding.” [See Note 1 below]

Note 1: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Markham, Ont.: LexisNexis Canada, 2004) at 1.

Durham Children’s Aid Society v. R.B., [2005] O. J. No. 3794 (S.C.J.) at par. 6 per Rogers J.:

A thorough discussion of these cases is to be found in the text The Doctrine of Res Judicata in Canada by Donald J. Lange B.A., LL.B., Ph.D., published by Butterworths.

Laufer v. Canadian Investment Protection Fund, 2004 Canlii 31862 (ONSC) at par. 196-197 per Wilson J.:

[7] Cause of action estoppel as outlined in D. J. Lang[e], The Doctrine of Res Judicata in Canada, Butterworths (2000) involves the following principles:

The plaintiff must bring forward the subject matter of the whole case relating to the cause of action at one time, once and for all, and every remedy flowing from the cause of action based on the subject matter.

The defendant must bring forward every defence based on the subject matter at one time, once and for all, and any related counterclaim which is not a separate and distinct cause of action.

All subject matter germane to the claim or defence, which could have been brought forward in the first action by the exercise of reasonable diligence but was not, is estopped in a second action.

A separate and distinct cause of action is not governed by cause of action estoppel and need not be brought in the same action, either as a claim by the plaintiff or as a counterclaim by the defendant.

Cause of action estoppel applies to the same parties, and their privies, in the second action and in any second proceeding which is not an action.

Dattels v. White, 2003 ONSC 03-CL-5233 at par. 15 per Cameron J.:

[15] Parties may plead causes of action and remedies in the alternative: Rule 25.06(4), (7). Following discoveries or evidence at trial they may elect which claims to pursue: Lange, Donald J., The Doctrine of Res Judicata in Canada, Butterworths, Toronto and Vancouver, 2002.

Hilltop Group Ltd. v. 806046 Ontario Ltd., 2003 ONSC 03-CV-245753CM1 at par. 21 per Sanderson J. citing Hilltop Group Ltd. v. Katana, 2002 ONSC 96-CU-106768 at par. 196-197 per Greer J below.

Hilltop Group Ltd. v. Katana, 2002 ONSC 96-CU-106768 at par. 196-197 per Greer J.:

[196] Donald J. Lange, in The Doctrine of Res Judicata in Canada, Butterworths, 2000, at pp. 12 -14 sets out parameters of the doctrine. The burden is on the party proving res judicata. The Court may look to the documentation behind the formal judgment to determine what was decided for the purpose of res judicata. See: Rolston et al. V. Lapa Cadillac Gold Mines (1937) Limited et al. [1950] O.R. 103-114, citing Johanesson v. Canadian Pacific Railway, 32 Man. R. 210, [1922] 2 W.W.R.341, 66 D.L.R. 599, affirmed 32 Man. R. at 221, [1922] 2 W.W.R. 761, 67 D.R.L. 636. Lange, in summarizing the ambit of inquiry, says it is almost open-ended. The Court is entitled to look at the Record, the reasons for Judgment as well as pleadings and formal judgment, may examine evidence and proceedings at the trial. Facta may also be examined. In Bear Island Foundation v. Ontario, (1999) Carswell Ont 3603, 126 O.A.C. 385, the Court of Appeal notes that res judicata is a form of estoppel. It states in para.29 that it “means that any action or issue that has been litigated and decided cannot be retried in a subsequent lawsuit between the same parties or their privies.” That case also notes that there can be an element of judicial discretion even when issue estoppel would otherwise apply.

[197] The issue of res judicata is tied in with that of issue estoppel as the same question test is the focal point for issue estoppel. Lange, at p.38, supra, says that the traditional view is that the same question has been decided, that is I must be deciding the same question, which has actually been decided in the action before MacKenzie, J., not whether it could have. Lange refers to the decision of McLachlin J. in R. v. Van Rassel, [1990] 1 S.C.R.225 at p.238, where she states that issue estoppel “applies only in circumstances where it is clear from the facts that the question has already been decided.” Lange further notes that at p.49 that an issue, which was not raised in the first action as a defence, is not barred in the second action when the second action is based upon a separate and distinct cause of action. Cause of action estoppel is limited to issues, which can be fairly regarded as having been disposed of on their merits, on admission, or by compromise, says Lange. Holmstead and Watson, in their Ontario Civil Procedure, (Carswell looseleaf) at 21-146 set out the differences between cause of action estoppel (claim preclusion) and that of issue estoppel (issue preclusion). By definition, issue estoppel has a much narrower scope than cause of action estoppel. An analysis of the causes of action before me were those before MacKenzie J. in the action by Katana against DiBattista and Hilltop. Therefore, cause of action estoppel does not apply to the case at bar.

SASKATCHEWAN COURT OF QUEEN’S BENCH

Sekerbank T.A.S. v. Arslan, [2014] S. J. No. 410 (Q.B.) at par. 52 per Barrington-Foote J.:

[52] In this case, we are concerned with issue estoppel rather than cause of action estoppel. The learned author of Donald J. Lange, The Doctrine of Res Judicata in Canada, 3d ed. (Toronto: LexisNexis, 2010), having noted that there is some authority for the proposition that issue estoppel does not arise from a consent judgment, summarizes the law on this point as follows (at p. 359):

A consent judgment is final for the purpose of both issue estoppel and cause of action estoppel. It must be intended that the consent order finally disposes of the issues. It raises an estoppel despite the fact that the consent is made without the benefit of a completely transparent factual foundation for the consent. The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent.

F.M.I. Developments Ltd. v.1269917 Alberta Ltd., [2011] S. J. No. 786 (Q.B.) at par. 45 per Smith J.:

[45] A helpful overview of res judicata, as same pertains to costs, can be found in Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed. (Markham: LexisNexis, 2010), at pages 432 to 434. Some relevant portions of that learned discussion are (at page 433):

… All arguments in regard to costs must be brought forward at the same time to avoid cause of action estoppel [Smith’s Field Manor Development Ltd. v. Campbell, [2004] N.S.J. No. 106 (C.A.) at par. 30]. Where the amount of costs, or who may be liable for the costs, in a proceeding is determined, those issues are estopped [Condominium Plan No. 7510189 v. Jones (1997), 48 Alta. L.R. (3d) 281 (C.A.) at 288; additional reasons at (1997), 50 Alta. L.R. (3d) 245 (C.A.); Humble v. V.M.R.E.U. (1989), 90 CLLC para. 14,009 at at 12068, at 12,077 (B.C.S.C.); aff’d on other grounds (1991), 85 D.L.R. (4th) 384 (B.C.C.A.)]. A determination of the scale of costs gives rise to issue estoppel in a subsequent proceeding [P. & G. Cleaners Ltd. v. Johnson (1996), 117 Man. R. (2d) 1 (Q.B.) at 3-4]. The scale of costs on interlocutory motions where a costs order has been made cannot be revisited by the trial judge or a judge subsequently presiding over a taxation [Smith’s Field Manor Development Ltd. v. Campbell, [2004] N.S.J. No. 106 (C.A.) at par. 40, and see the cases cited therein]…. When an argument on costs is raised and determined in an appeal, the issue is barred in a subsequent proceeding [Re Wilcox Estate, [2005] B.C.J. No. 123 (S.C.) at par. 52]. Where the issue of costs has not been appealed, an appellant may not re-argue the lower court costs when arguing the costs of the appeal [Kurian v. Alberta (Administrator of the Motor Vehicle Accident Claims Act), [2004] A.J. No. 733 (C.A.) par. 2, 6]….

Barbagianis v. Canada (Attorney General), [2009] S. J. No. 481 (Q.B.) at par. 8 per Ball J.:

[8] The principle of res judicata applies where a matter in dispute has already been decided in earlier litigation. Res judicata has two distinct forms: issue estoppel and cause of action estoppel. In their simplest terms, issue estoppel means that the litigant is estopped because the matter has clearly been decided in a previous proceeding. Cause of action estoppel means that a litigant is estopped because the cause has been extinguished by a judgment. See Lange, The Doctrine of Res Judicata in Canada, 2nd ed. Lexis Nexis Butterworths p.1.

Moody v. Ashton, [2004] S. J. No. 758 (Q.B.) at par. 171 per Bayton J.:

[171] The “new evidence” special circumstances exception includes situations in which the decision in the first proceeding was obtained through fraud: Donald J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at 223.

Mryglod v. Mryglod, 2001 SKQB 182 at par. 6 per Barclay J.:

[6] Kotrla also submits that as the claim by Sylvia and Allen relates to the valuation and ownership of shares in various corporations, matters that have already been dealt with in the matrimonial trial, the doctrine of res judicata applies. I disagree. In order for the doctrine of res judicata to apply, the parties to one proceeding must be the same as the parties to the second proceeding. Neither Sylvia nor Allen were parties to the matrimonial property proceeding and accordingly, they are not estopped or bound by that decision.(D. Lange, The Doctrine of Res Judicata (Toronto: Butterworths) pp. 2-12, Farwell v. R. (1893), 22 S.C.R. 553 at 553.

TAX COURT OF CANADA

McFadyen v.Canada, [2008] T.C.J. No. 396 at par. 25 per Rip C.J.T.J.:

[25] Henderson not only forecloses the relitigation of issues that have been conclusively decided by a court of competent jurisdiction. It also enunciates what has been referred to as the “might or ought” principle9 – matters that properly should have been part of the original litigation but that a party failed to argue cannot be raised in subsequent litigation.10

9 See Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Markham: LexisNexis Canada Inc., 2004) at page 127.

[38] The appellant submits that there is new evidence viz. a consent decision of the Ontario Superior Court that warrants a rehearing of this matter. With regards to new evidence, Donald J. Lange, The Doctrine of Res Judicata in Canada,20 summarizes the special circumstance of new evidence nicely:

… Where fraud is not involved, the common law position with respect to new evidence is very clear. For new evidence to preclude the operation of issue estoppel or cause of action estoppel resulting from an entered judgment, the new evidence must be practically conclusive of the matter. The incontrovertible nature of the new evidence is at the heart of the test. It must be virtually impossible to controvert the new evidence.

Commission Scolaire Des Patriotes v. The Queen, (2002) CCI/TCC 1999-1464-GST-G at par. 60, 64, and footnotes, per Archambault J.:

[60] As for res judicata, the following definition is found in Lange, op. cit., at page 9:

… In C.U.P.E. Local 1394 v. Extendicare Health Services Inc., Doherty J.A. stated the principle:

Res judicata is a rule of evidence. Assuming the requirements of the doctrine are met, the party against whom the issue was decided in the earlier litigation cannot proffer evidence to challenge that result. Looked at from the vantage point of the successful litigant in the earlier proceedings, the doctrine operates to admit into evidence at the second proceeding the judicial determination of the relevant issue at the earlier proceedings. Not only is that earlier determination rendered admissible, it is also declared to be conclusive with respect to that issue: Spencer-Bower and Turner, The Doctrine of Res Judicata, 2nd ed (1969) at 9; Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) at 989-90.

[64] Moreover, and this is the most important reason, there seem to be significant differences in the conditions of application of the two rules. For example, for the authority of a final judgment to exist, it is essential that there be three identities in the two proceedings: identity of object, identity of cause and identity of parties. On the other hand, res judicata in the common law can be subdivided into two separate rules: issue estoppel and cause of action estoppel. As we saw above, issue estoppel applies where the causes of action are distinct. D. Lange, op. cit., states the following at page 29: “The Supreme Court of Canada has clearly established the principle that issue estoppel applies to separate and distinct causes of action.” For there to be issue estoppel and thus res judicata, only two identities are necessary: identity of issue and identity of parties. There is another important distinction: as I understand the common law rule, “issue” is not a synonym of “object”. In the civil law, an object is a right – I will come back to this later – whereas in the common law, an issue is apparently not limited to a right. It applies to any conclusion of fact, any conclusion of law and any mixed conclusion of law and fact. Thus, it is not necessarily the same thing as an object. The concept of issue is much broader. Issue estoppel and the authority of a final judgment therefore represent two rules that do not apply under the same conditions. They are not “interchangeable” rules. [Footnotes omitted.]

Footnote citations:

[7] Donald J. Lange expresses the same opinion in The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000), at page 9.

[28] In support of this conclusion, she cited (at paragraph 36 of her decision) Lange, op. cit., who states at page 34 that the rules of issue estoppel and the authority of a final judgment are “interchangeable”.

[31] To illustrate the first point of view, consider what Laskin J. of the Supreme Court of Canada stated in Angle, supra, at page 268, which is quoted by D. Lange, op. cit., at page 31: “I see no reason to introduce any anomalies or exceptions to its general application if the facts call for it.” Lange states: “In other words, if the three criteria or requirements of issue estoppel are met, issue estoppel should apply to the facts of the case.” To illustrate the second line of thought, Lange writes at page 32:

In Minott v. O’Shanter Development Co., the Ontario Court of Appeal also held that, even if the requirements of issue estoppel are met, the court may exercise its discretion and refuse to apply it “when to do so would cause unfairness or work an injustice.” Emphasis was placed on the exception of special circumstances as illustrative of this exercise of discretion. Laskin J.A., for the court, stated:

Issue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the public interest in the finality of litigation with the private interest in achieving justice between litigants. Sometimes these two interests will be in conflict, or at least there will be tension between them. Judicial discretion is required to achieve practical justice without undermining the principles on which issue estoppel is founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is precluded from relitigating an issue.

Leduc v. The Queen, (2001) CCI/TCC 2000-4503-IT-1 at par. 36 per Lamarre J.:

[36] Thus it will be noted, for the application both of the doctrine of res judicata under the Civil Code and of the doctrine of issue estoppel in common law, that the required conditions are similar. Donald J. Lange moreover makes that very observation in The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000), at page 34:

In the law of Canada, there is compelling support for the proposition that the common law doctrine of issue estoppel and the Québec Civil Code doctrine of res judicata are to be treated as equivalent, interchangeable doctrines.