The doctrine of res judicata prevents the re-litigation of matters already decided. This prevents a losing party from pursuing the same matter against the same person again. The doctrine of issue estoppel is a limb of the doctrine of res judicata.
The Doctrine of Res Judicata
Res judicata precludes the re-litigation of matters that have already been judicially decided in a prior proceeding. This situation can often occur in the context of tribunal litigation and administrative law, and matters can be dismissed as a result.
In Penner v Niagara (Regional Police Services Board, 2013 SCC 19), the Supreme Court of Canada noted that the doctrine of res judicata serves the twin principles of the public interest in ensuring finality of litigation (in administrative, civil, criminal matters), and the individual interests of protecting parties against the unfairness of repeated lawsuits and prosecution.
Generally, res judicata is operational under the following conditions: 1) the two actions must involve the same parties or their privies; 2) the claim sought to be asserted in the subsequent proceeding must have been within the prior adjudicator’s jurisdiction in the prior proceeding; 3) the prior adjudication must have been on the merits; 4) the prior adjudication must have been a final judgement.
There are two branches of res judicata: cause of action estoppel and issue estoppel. Cause of action estoppel prevents the same cause of action (claim) from being litigated again, and bars claims which properly belonged to the subject matter of previous litigation. Issue estoppel is an extension of the same rule; however, it focuses on issues rather than on claims or causes of actions. It prevents the re-litigation of issues that a court or tribunal has already decided in a prior proceeding and/or different forum.
The Doctrine of Issue Estoppel
Canadian courts have developed an approach to issue estoppel by borrowing elements from both English law and US law. The doctrine of issue estoppel is a branch of the broader doctrine of res judicata. It prevents re-litigating issues that have already been judicially decided. In other words, it precludes a tribunal or court from adjudicating legal questions that have already been decided in a previous proceeding. Three preconditions must be met for issue estoppel to operate. The legal test for whether issue estoppel applies is as follows:
i. the same question has been decided;
ii. the prior judicial decision said to create the estoppel was a final decision; and
iii. the parties to the prior judicial decision were the same persons as the parties in the subsequent proceedings in which the estoppel is being raised.
If the above conditions are found to exist, the decision-maker may find that the particular issue has already been decided and, therefore, will not allow re-litigation on that issue. If there are no other issues to be considered, the decision-maker may dismiss the matter.
Residual Discretion of Decision-Makers
It is important to note that even where all the elements of issue estoppel are established, courts and tribunals maintain the discretion not to prevent a party to a subsequent proceeding from re-litigating an issue previously determined in a prior decision. Decision-makers can exercise this residual discretion, preventing the operation of issue estoppel, if allowing it would be unjust, with particular attention to factors involving fairness.
Similarly, the broader doctrine of res judicata is known in law to have two overriding exceptional circumstances requiring re-litigation: 1) fraud or other misconduct in the earlier proceedings; 2) the discovery of fresh evidence that entirely changes the aspect of the case, which could not reasonably have been adduced earlier.
The Supreme Court in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 and Penner v Niagara (Regional Police Services Board, 2013 SCC 19) provided parameters of the residual discretion not to allow issue estoppel to operate. The Supreme Court noted that the factors identified in the jurisprudence illustrate unfairness may arise in two main ways. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly, it may still be unfair to use the results of that process to prevent the subsequent litigation. Thus, the residual discretion largely turns on the interests of fairness.
Blog posts are not legal advice.
Fahd Ahmed | Lawyer 