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Civil Procedure - Summary Judgment - Issue Estoppel re Other Parties

D’Onofrio v. Advantage Car & Truck Rentals Limited (Ont CA, 2016)

This is the third Court of Appeal case that I have noticed recently on the issue of whether fact-findings made in a motion for summary judgment amongst multiple parties, but participated in by only some them them, operate as an issue estoppel against the non-participants.

In this case the Court of Appeal in obiter held that a non-participating party would be bound by fact-findings despite their taking 'no position' on the motion, on the basis that the fact-findings were material to their defence and that they had an oppourtunity to participate. The clear implication is that all parties who have any stake in issues to be argued on the summary judgment motion should participate fully at least on those issues (ie. 'put their best foot forward': para 37), or else risk a negative issue estoppel arising. However, in this case since the Order being appealed from was eroneously made 'on consent', the court further held that no issue estoppel arose because a consent order is "not a judicial determination on the merits of a case" and so creates no estoppel [para 44].

The other recent cases that raise similar issues, though neither was mentioned in the reasons for judgment here, include:

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