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Collateral Attack - Reslin v Anglin (SCC, 2026). Resler v. Anglin
In Resler v. Anglin (SCC, 2026) the Supreme Court of Canada dismissed a defendant's SCC appeal, this brought against an Alberta CA ruling that allowed an appeal where the Alberta QB struck the plaintiff's "amended statement of claim in its entirety, finding that it amounted to an abuse of process, disclosed no reasonable cause of action and, in any case, the allegations had no reasonable chance of success given Resler’s common law and statutory immunities".
Here the Supreme Court of Canada (in 2026) considers the doctrine of 'collateral attack':[28] The purpose of the collateral attack doctrine is to bar “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” (D. J. Lange, The Doctrine of Res Judicata in Canada (5th ed. 2021), at p. 11). The doctrine focuses on whether the proceeding in the other forum is the appropriate proceeding to challenge a decision. It is often invoked when a second proceeding involves a challenge to an administrative order that was not previously challenged through the administrative appeal process (p. 495).
[29] This Court’s first full consideration of the collateral attack doctrine in Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, established a test for determining whether the doctrine applies to a proceeding, namely, whether the object of the proceeding is to reverse, vary or nullify an order or judgment made in a previous collateral proceeding that has not been varied or set aside on appeal.
[30] Following Wilson, lower courts began applying the doctrine to re-litigation issues, but this Court rejected this approach in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, finding that the collateral attack doctrine should be construed more narrowly and focus on challenges to the order itself and its enforceability.
[31] In Garland, the Court stated that, generally, the collateral attack doctrine “is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it” (para. 71). In C.U.P.E., the Court rejected the application of the collateral attack doctrine, instead opting for the broader doctrine of abuse of process. In that case, a recreation centre instructor was convicted of sexually assaulting a child under his supervision and was subsequently dismissed from his employment. The instructor grieved his dismissal, denying that a sexual assault had ever taken place. Arbour J., writing for the majority of the Court, noted at para. 34:.... in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process. [Emphasis added.] [32] A reconsideration of facts established in a collateral order or judgment does not itself dispute the enforceability of the underlying decision. Those two elements are distinct. Indeed, the collateral attack doctrine is primarily concerned with protecting the justice system rather than the interests of individual litigants (Lange, at pp. 501-2).
[33] More recently, the Court confirmed this narrower interpretation of the doctrine in TeleZone, which addressed whether superior courts can adjudicate civil claims for damages relating to administrative decisions that have not first been invalidated through judicial review. In that case, Industry Canada issued a call for applications for licences for personal communication services, accompanied by a policy statement that provided the criteria on which it would grant up to six licences. However, Industry Canada went on to grant four licences and TeleZone was not among the successful applicants. TeleZone commenced a civil claim seeking damages for breach of contract, negligence and unjust enrichment.
[34] TeleZone argued that a policy statement issued by Industry Canada indicated that it would only issue fewer than six licences if fewer than six applications met the criteria. The Attorney General of Canada challenged the civil claim on the basis that it constituted a collateral attack on Industry Canada’s decision. He maintained that the concurrent jurisdiction of the superior courts and the Federal Court for claims against the federal Crown under s. 17 of the Federal Courts Act, R.S.C. 1985, c. F-7, did not apply to claims that engage the validity and lawfulness of the decision. Such claims fall instead under the Federal Court’s exclusive jurisdiction under s. 18 of the Federal Courts Act.
[35] In TeleZone, the Court found, through a statutory interpretation exercise, that the Federal Courts Act did not impede a claim seeking relief from fault, in a private law sense. In a similar vein, there is no provision in the Election Act requiring Resler’s decisions in his role as CEO to be set aside before he can be sued. As noted in TeleZone, a provincial superior court should not generally decline to exercise jurisdiction on the basis that the claim “looks like a case that should be pursued on judicial review” (para. 76).
[36] In order to determine whether the claim constituted a collateral attack on Industry Canada’s decision to issue only four licences, the Court in TeleZone based its analysis on whether TeleZone sought to challenge the decision and avoid its consequences. Binnie J., writing for a unanimous Court, observed:.... if the claimant is content to let the order stand and instead seeks compensation for alleged losses [in TeleZone], there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks. Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours. [para. 19] [37] This Court found that TeleZone did not seek to avoid the consequences of the licensing decision, as it based its claim for damages on the decision itself and resulting financial losses. Therefore, TeleZone could not have intended to challenge the decision, since its alleged impact was integral to its cause of action. The matter before us shares similar features, as detailed below.
[38] In the present case, Anglin is seeking monetary compensation for Resler’s actions, claiming that Resler exercised public powers for improper or ulterior motives, knowing that doing so would be likely to cause Anglin harm. Anglin is not seeking any remedy relating to the election result itself, such as a declaration voiding the election and invalidating the return of the winning candidate.
[39] Resler takes specific issue with the allegation that his actions negatively impacted Anglin’s chances of re-election and the corresponding head of damages for the loss of chance of re-election. Resler submits that this particular allegation undermines the integrity of the election result and impacts upon the values of certainty, fairness, promptness, finality, legitimacy and efficiency that underpin the electoral process (A.F., at para. 58). The intervener the CEO of the Northwest Territories notes that since the loss of chance analysis requires determining whether, absent the wrongful conduct, Anglin would have obtained the benefit or avoided the harm, “[i]t is difficult to imagine how a court could adjudicate [the] claim . . . without examining whether, but for the alleged interference, the outcome of the election would [have been] different” (I.F., at para. 19).
[40] As earlier noted, Lema J. distinguished the present case from TeleZone and found that there was an obvious inconsistency in the defeated candidate saying, on the one hand, that he did not challenge the result, and, on the other hand, claiming damages for the unfairness that caused his loss (para. 38).
[41] Resler further submits that “[t]he administrative act of returning a candidate to the Legislature is fundamentally different than a government decision to award a bidder a telecommunications contract. The election of a candidate to the Legislature is inherently public in nature. Challenges premised on public law considerations must be brought through public law actions” (A.F., at para. 67).
[42] I respectfully disagree. In fact, the situation here bears similarities to the circumstances in TeleZone. TeleZone alleged that it should have obtained a licence if Industry Canada had not breached its contractual and equitable duties. Anglin similarly alleges that Resler’s misconduct injured his chances of obtaining a different outcome. Therefore, as in TeleZone, Anglin “does not seek to undo what was done”, but rather complains about the manner in which the process was conducted (para. 79).
[43] As with the sexual assault conviction in C.U.P.E., Anglin’s claim is “not a contest about whether that decision has legal force, as clearly it does” (C.U.P.E., at para. 34). Rather than seeking to void the election results, Anglin seeks damages arising from Resler’s alleged misconduct in conducting the election.
[44] As earlier emphasized, the scope of the collateral attack doctrine is narrow and focuses on the order itself and its enforceability (C.U.P.E., at para. 34). The damages Anglin claims, if awarded, would have no impact on the outcome of the election. As noted by the Court of Appeal majority, Anglin’s claim assumes the unimpeachability of the election result and seeks compensation for misfeasance during the election process. His claim is therefore not a collateral attack on the 2015 election result. Instead, the wrongdoing he alleges against Resler and its negative consequences on his campaign form part of the factual basis for his claim.
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