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Estoppel - Issue Estoppel (4). R. v. Wilson
In R. v. Wilson (Ont CA, 2024) the Ontario Court of Appeal briefly states an issue estoppel definition, here drawn from a rare criminal application of the doctrine:[19] Issue estoppel is a legal doctrine which estops the re-litigation of disputed issues and prevents a party against whom an issue has been decided from proffering evidence to contradict the earlier result: R. v. Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at para. 77. The doctrine is concerned with “whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding”: Mahalingan (SCC), at para. 16. . Toronto (City) v. C.U.P.E., Local 79
In Toronto (City) v. C.U.P.E., Local 79 (SCC, 2003) the Supreme Court of Canada states discusses issue estoppel:(1) Issue Estoppel
23 Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.). The final requirement, known as “mutuality”, has been largely abandoned in the United States and has been the subject of much academic and judicial debate there as well as in the United Kingdom and, to some extent, in this country. (See G. D. Watson, “Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality” (1990), 69 Can. Bar Rev. 623, at pp. 648‑51.) In light of the different conclusions reached by the courts below on the applicability of issue estoppel, I think it is useful to examine that debate more closely.
24 The first two requirements of issue estoppel are met in this case. The final requirement of mutuality of parties has not been met. In the original criminal case, the lis was between Her Majesty the Queen in right of Canada and Glenn Oliver. In the arbitration, the parties were CUPE and the City of Toronto, Oliver’s employer. It is unnecessary to decide whether Oliver and CUPE should reasonably be viewed as privies for the purpose of the application of the mutuality requirement since it is clear that the Crown, acting as prosecutor in the criminal case, is not privy with the City of Toronto, nor would it be with a provincial, rather than a municipal, employer (as in the Ontario v. O.P.S.E.U. case, released concurrently).
25 There has been much academic criticism of the mutuality requirement of the doctrine of issue estoppel. In his article, Professor Watson, supra, argues that explicitly abolishing the mutuality requirement, as has been done in the United States, would both reduce confusion in the law and remove the possibility that a strict application of issue estoppel may work an injustice. The arguments made by him and others (see also D. J. Lange, The Doctrine of Res Judicata in Canada (2000)), urging Canadian courts to abandon the mutuality requirement have been helpful in articulating a principled approach to the bar against relitigation. In my view, however, appropriate guidance is available in our law without the modification to the mutuality requirement that this case would necessitate.
26 In his very useful review of the abandonment of the mutuality requirement in the United States, Professor Watson, at p. 631, points out that mutuality was first relaxed when issue estoppel was used defensively:The defensive use of non-mutual issue estoppel is straight forward. If P, having litigated an issue with D1 and lost, subsequently sues D2 raising the same issue, D2 can rely defensively on the issue estoppel arising from the former action, unless the first action did not provide a full and fair opportunity to litigate or other factors make it unfair or unwise to permit preclusion. The rationale is that P should not be allowed to relitigate an issue already lost by simply changing defendants .... 27 Professor Watson then exposes the additional difficulties that arise if the mutuality requirement is removed when issue estoppel is raised offensively, as was done by the United States Supreme Court in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). He describes the offensive use of non mutual issue estoppel as follows (at p. 631):The power of this offensive non-mutual issue estoppel doctrine is illustrated by single event disaster cases, such as an airline crash. Assume P1 sues Airline for negligence in the operation of the aircraft and in that action Airline is found to have been negligent. Offensive non-mutual issue estoppel permits P2 through P20, etc., now to sue Airline and successfully plead issue estoppel on the question of the airline’s negligence. The rationale is that if Airline fully and fairly litigated the issue of its negligence in action #1 it has had its day in court; it has had due process and it should not be permitted to re-litigate the negligence issue. However, the court in Parklane realized that in order to ensure fairness in the operation of offensive non-mutual issue estoppel the doctrine has to be subject to qualifications. 28 Properly understood, our case could be viewed as falling under this second category — what would be described in U.S. law as “non-mutual offensive preclusion”. Although technically speaking the City of Toronto is not the “plaintiff” in the arbitration proceedings, the City wishes to take advantage of the conviction obtained by the Crown against Oliver in a different, prior proceeding to which the City was not a party. It wishes to preclude Oliver from relitigating an issue that he fought and lost in the criminal forum. U.S. law acknowledges the peculiar difficulties with offensive use of non-mutual estoppel. Professor Watson explains, at pp. 632-33:First, the court acknowledged that the effects of non-mutuality differ depending on whether issue estoppel is used offensively or defensively. While defensive preclusion helps to reduce litigation offensive preclusion, by contrast, encourages potential plaintiffs not to join in the first action. “Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment”. Thus, without some limit, non-mutual offensive preclusion would increase rather than decrease the total amount of litigation. To meet this problem the Parklane court held that preclusion should be denied in action #2 “where a plaintiff could easily have joined in the earlier action”.
Second, the court recognized that in some circumstances to permit non-mutual preclusion “would be unfair to the defendant” and the court referred to specific situations of unfairness: (a) the defendant may have had little incentive to defend vigorously the first action, that is, if she was sued for small or nominal damages, particularly if future suits were not foreseeable; (b) offensive preclusion may be unfair if the judgment relied upon as a basis for estoppel is itself inconsistent with one or more previous judgments in favour of the defendant; or (c) the second action affords to the defendant procedural opportunities unavailable in the first action that could readily result in a different outcome, that is, where the defendant in the first action was forced to defend in an inconvenient forum and was unable to call witnesses, or where in the first action much more limited discovery was available to the defendant than in the second action.
In the final analysis the court declared that the general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed or for other reasons, the application of offensive estoppel would be unfair to the defendant, a trial judge should not allow the use of offensive collateral estoppel. 29 It is clear from the above that American non-mutual issue estoppel is not a mechanical, self-applying rule as evidenced by the discretionary elements which may militate against granting the estoppel. What emerges from the American experience with the abandonment of mutuality is a twofold concern: (1) the application of the estoppel must be sufficiently principled and predictable to promote efficiency; and (2) it must contain sufficient flexibility to prevent unfairness. In my view, this is what the doctrine of abuse of process offers, particularly, as here, where the issue involves a conviction in a criminal court for a serious crime. In a case such as this one, the true concerns are not primarily related to mutuality. The true concerns, well reflected in the reasons of the Court of Appeal, are with the integrity and the coherence of the administration of justice. This will often be the case when the estoppel originates from a finding made in a criminal case where many of the traditional concerns related to mutuality lose their significance.
30 For example, there is little relevance to the concern about the “wait and see” plaintiff, the “free rider” who will deliberately avoid the risk of joining the original litigation, but will later come forward to reap the benefits of the victory obtained by the party who should have been his co-plaintiff. No such concern can ever arise when the original action is in a criminal prosecution. Victims cannot, even if they wanted to, “join in” the prosecution so as to have their civil claim against the accused disposed of in a single trial. Nor can employers “join in” the criminal prosecution to have their employee dismissed for cause.
31 On the other hand, even though no one can join the prosecution, the prosecutor as a party represents the public interest. He or she represents a collective interest in the just and correct outcome of the case. The prosecutor is said to be a minister of justice who has nothing to win or lose from the outcome of the case but who must ensure that a just and true verdict is rendered. (See Law Society of Upper Canada, Rules of Professional Conduct (2000), Commentary Rule 4.01(3), at p. 61; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232, at pp. 256-57, per Cartwright J.; and R. v. Banks, [1916] 2 K.B. 621 (C.C.A.), at p. 623.) The mutuality requirement of the doctrine of issue estoppel, which insists that only the Crown and its privies be precluded from relitigating the guilt of the accused, is hardly reflective of the true role of the prosecutor.
32 As the present case illustrates, the primary concerns here are about the integrity of the criminal process and the increased authority of a criminal verdict, rather than some of the more traditional issue estoppel concerns that focus on the interests of the parties, such as costs and multiple “vexation”. For these reasons, I see no need to reverse or relax the long-standing application of the mutuality requirement in this case and I would conclude that issue estoppel has no application. I now turn to the question of whether the decision of the arbitrator amounted to a collateral attack on the verdict of the criminal court. . Halton (Regional Municipality) v. Canadian National Railway Company
In Halton (Regional Municipality) v. Canadian National Railway Company (Ont CA, 2024) the Court of Appeal considered (and dismissed) appeals of denials of injunction and declaration applications by several local municipalities against CN, this with respect to the construction of a huge rail intermodal hub near Milton. The primary issue was the extent to which this federal project required provincial and municipal authorizations in the face of the doctrine of 'interjurisdictional immunity'.
Here the court considers an issue estoppel concern:[83] The application judge did not err by “ignoring” the stay motion judge’s conclusion that Halton’s application was not “premature” or “too hypothetical or lacking a concrete factual foundation”. The underlying principles of res judicata, issue estoppel and abuse of process that Halton is invoking do not apply. Issue estoppel, the branch of res judicata designed to prevent re-litigation of issues previously decided in another court proceeding, requires the issue to be the same as the one that was decided in the prior decision: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 23; Catalyst Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, (2019) 145 O.R. (3d) 759, at para. 25. To determine whether the issue is the same, a court is to ask whether “on careful analysis ... the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding”: Heynen v. Frito Lay Canada Ltd. (1999), 1999 CanLII 1386 (ON CA), 45 O.R. (3d) 776 (C.A.), at para. 20; Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, 457 D.L.R. (4th) 530, at para. 59. The stay motion judge’s decision that the application before her was not premature or too hypothetical does not determine whether the application before the application judge was too hypothetical or premature because the applications sought different relief, and the positions of the parties had evolved. The issue the stay motion judge resolved was whether the declarations Halton sought in its initial, narrower application were too premature or too hypothetical on the record before her to permit that application to proceed to a hearing, on the premise that CN was claiming absolute immunity as a federal undertaking from all provincial legislation.[4] In contrast, the application judge’s task was to determine if, on the factual record before him, the much broader declarations sought in the second revised application were premature or too hypothetical to adjudicate after the hearing, where CN was not claiming absolute immunity as a federal undertaking from all provincial legislation. . Canada v. Greenwood
In Canada v. Greenwood (Fed CA, 2023) the Federal Court of Appeal considered issue estoppel, here in a class action certification context:(1) Issue estoppel
[35] Issue estoppel is a common law doctrine that provides that once a judicial proceeding finally decides an issue, neither party can re-litigate that issue. The doctrine rests on the finality principle. As aptly summarized by the Ontario Court of Appeal in Smith Estate v National Money Mart Company, 2008 ONCA 746, 303 DLR (4th) 175 at para. 33: “[o]nce a point has been decided, the winning litigant is entitled to rely on the result, to be assured of peace and to be able to plan the future on the basis of the court’s decision.” The doctrine also exists to preserve scare judicial resources and prevent parties from exposure to additional legal costs, as well as to reduce the risk of undue litigation (Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 28).
[36] It is well established that issue estoppel emerges in the presence of three preconditions (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 25 (Danyluk)):(1) the same question has been decided;
(2) the judicial decision which is said to create the estoppel was final; and,
(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. [37] Furthermore, even if all the preconditions are established, a judge will retain a broad discretion to refuse to apply the doctrine of issue estoppel if its application were to create an injustice (Danyluk at para. 33):The first step is to determine whether the moving party … has established the preconditions to the operation of issue estoppel ... If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied ... [emphasis in original] [38] In the present case, and I agree with the appellant on this point, the certification judge conflated whether the issue at hand was finally resolved with whether the entirety of the claim was finally determined. She did so in a cursory manner, without reference to the relevant case law.
[39] Indeed, there are decisions stating that the doctrine of issue estoppel applies to interlocutory orders (Hawley v. North Shore Mercantile Corp., 2009 ONCA 679, 99 O.R. (3d) 142 at para. 26, leave to appeal to SCC refused, 33440 (April 22 2010), citing Fidelitas Shipping Co. v. V/O Exportchieb, [1965] 2 All E.R. 4 at 10 (CA UK); see also R. v. Duhamel, 1981 ABCA 295 at para. 14, aff’d 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555). More particularly, in the context of class proceedings, a number of decisions confirm that issue estoppel applies to class certification motions with the understanding that judges retain discretion not to apply it when they are of the view it would lead to an injustice (see Risorto v. State Farm Mutual Automobile Insurance Co., [2009] O.J. No. 820, 72 C.C.L.I. (4th) 60 at para. 49; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2014 BCSC 1280, 376 D.L.R. (4th) 302 at paras 28–30, 60, 78 (Pro-Sys); Turner v. York University, 2011 ONSC 6151, 209 A.C.W.S. (3d) 228 at paras 63–65; Corless v. Bell Mobility Inc., 2023 ONSC 6227 at paras 51–58 (Corless); Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., 2016 ONSC 3958, 270 A.C.W.S. (3d) 23 at paras 43–53).
[40] While certification orders do not dispose of the entire proceeding, they may yield final rulings on issues going to the merits of the case, such as class definitions and common questions. As it was put by our Court in Apotex Inc. v. Merck & Co. (C.A.), 2002 FCA 210, [2003] 1 F.C. 242 at para. 27:The decision which is said to give rise to the estoppel need not be a decision which determines the entire subject-matter of the litigation. The test for issue estoppel is a substantive issue test where the decision affects substantive rights of the parties with respect to a matter bearing on the merits of the cause of action. [41] Accordingly, certification orders issued in the context of class proceedings may be subject to issue estoppel. Although Rule 334.19 contemplates the possibility of amending a certification order, it does not displace the doctrine of issue estoppel that exists to prevent re-litigation. Both the rule and the doctrine have to be taken into account and the judge’s discretion has to be exercised consequently and appropriately (Pro-Sys at para. 28). Any other approach would undermine judicial economy (which the doctrine of issue estoppel fundamentally seeks to protect) by allowing litigants to repeatedly and endlessly re-open certification orders.
[42] That being said, there are circumstances where the doctrine of issue estoppel can be set aside, namely in the event of an appeal, a material change in circumstances, or new evidence (Donald J. Lange, The Doctrine of Res Judicata in Canada, 5th ed. (Toronto: LexisNexis, 2021) at 328). . Canadian Imperial Bank of Commerce v. Canada
In Canadian Imperial Bank of Commerce v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and necessarily endorsed by their dismissal of the appeal) a Tax Court's contrast between the doctrines of issue estoppel and abuse of process:[19] The Tax Court Judge cited the three requirements for issue estoppel as set out by the Supreme Court of Canada in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248:[22] ... (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies ... [20] The Tax Court Judge noted, in paragraph 28 of his reasons, that once the three requirements are satisfied, the Court retains the discretion to not apply issue estoppel:Essentially, the court's exercise of discretion either to apply or not to apply issue estoppel with respect to a given case, once all three formal requirements are satisfied, must be guided by the underlying policy concerns of res judicata and good sense. [21] The Tax Court Judge noted that cause of action estoppel, issue estoppel and abuse of process are all concerned with similar policy principles. Abuse of process is more flexible as it does not have the same specific requirements as cause of action estoppel or issue estoppel.
[22] For the doctrine of abuse of process, the Tax Court Judge cited, at paragraph 30 of his reasons, the following summary of the decision of the Supreme Court in Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 in Donald J. Lange, The Doctrine of Res Judicata in Canada, 5th ed (Markham: LexisNexis Canada Inc., 2021), c. 1 at §4 (Lexis e-book):[30] Lange summarizes the Supreme Court of Canada's analysis in Toronto (City) regarding the abuse of process doctrine as follows: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 of 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. [23] The Tax Court Judge also noted:[31] Citing Justice McLachlin (as she then was) in R v Scott, [1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979] the Supreme Court of Canada states in Toronto (City) that “abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency.”
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