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Estoppel - Issue Estoppel - Administrative. Intercity Realty Inc., Brokerage v. Salerno Realty Inc., Brokerage
In Intercity Realty Inc., Brokerage v. Salerno Realty Inc., Brokerage (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a motion "order dismissing the action ... on the basis that the court lacked jurisdiction over the subject matter of the complaint under r. 21.01(3)(a) of the Rules of Civil Procedure" - this concerning "a dispute between real estate brokerages over entitlement to the commission payable on a residential home purchase transaction".
Here the court considered the R21.01(3)(a) ['Dismissal or Stay of Action (by Defendant) - Jurisdiction]'] issue, and R25.11 ['Pleadings or Documents, Narrowing (by the Court)'] by way of issue estoppel:[19] The motion judge first considered whether the action should be stayed or dismissed pursuant to r. 21.01(3)(a) on the basis that the court lacked jurisdiction over the subject matter. She found that the Superior Court has jurisdiction over all claims, unless they do not disclose a reasonable cause of action or the jurisdiction has been removed by legislation or an arbitral agreement: TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, aff’d 2010 SCC 62, [2010] 3 S.C.R. 585.
[20] The motion judge found that Intercity was, like Salerno, subject to REBBA and the Code of Ethics, and that the TRREB Arbitration Guidelines required all members to submit to arbitration to resolve all commission disputes.
[21] The motion judge rejected Intercity’s submission that the action should proceed since Salerno was not a party to the TRREB proceeding. She found that that this was of no consequence since the arbitration decision, upheld by the appeal panel, binds Salerno as RE/MAX was directed to hold the commission for Salerno and all issues relating to Salerno were dealt with as part of the TRREB proceeding. Accordingly, the motion judge found that the court had no jurisdiction over the dispute, since such jurisdiction was ousted by virtue of the TRREB Arbitration Guidelines.
[22] The motion judge continued, however, to consider whether the matter was an abuse of process under r. 25.11 by way of issue estoppel in the event that she was in error about the jurisdictional question. The parties agreed that the applicable test for issue estoppel was that set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 24-25.
[23] Applying that test, the motion judge found that the issue as between Intercity and RE/MAX and Salerno had been fully adjudicated through the TRREB proceeding. RE/MAX represented Salerno’s interest before the TRREB hearing panel and the decision, affirmed on appeal, was final.
[24] Accordingly, the motion judge concluded that Intercity was attempting to relitigate the same claim before the court, and that such conduct constituted an abuse of process. She concluded that she would have dismissed the claim on that basis had she not found that the court was without jurisdiction.
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[29] Application of the tests for issue estoppel and abuse of process by a motion judge is owed deference: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 284. An appellate court should intervene only if the motion judge misdirected herself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations.
[30] The motion judge properly articulated the test in Danyluk and applied it to the facts before her. She considered whether: (1) the same question has been decided; (2) whether the TRREB decision was final; and (3) whether the parties to the TRREB decision or their privies were the same persons as the parties in this proceeding in which the estoppel is raised.
[31] We see no error in the analysis of the motion judge.
[32] As to the first Danyluk factor, the issue raised in the action is precisely the issue that was considered and determined in the TRREB proceeding: whether Intercity was entitled to a portion of the commission as a co-operating brokerage since Mr. Cardwell was its employee at the time of the transaction.
[33] The TRREB Arbitration Panel fully considered the issue and all relevant evidence and found that no commission was payable to Intercity. Before us, Intercity submitted that the questions in the action were different since it was claiming damages against Salerno for inducing breach of contract and intentional interference with contractual relations. Fatal to that submission is the fact that those causes of action are not pleaded in the statement of claim against Salerno. The claims against Salerno are limited to the payment of the disputed commission.
[34] As to the second Danyluk factor, Intercity appealed the decision of the arbitration panel to the appeal panel which affirmed and upheld the decision. The award of the appeal panel, and the TRREB Arbitration Guidelines to which Intercity is subject as a registrant, are clear that the award is final.
[35] We are satisfied for the purposes of this appeal that the TRREB decision is judicial since it was made by a body capable of receiving and exercising adjudicative authority, the decision was required to be made in a judicial manner, and the decision was, in fact, made in a judicial manner: Danyluk, at para. 35; Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, at para. 45. The object and purpose of the TRREB Arbitration Guidelines are to provide a judicial framework for the adjudication of commission disputes between brokers just like this one.
[36] As to the third Danyluk factor, we agree with the conclusion of the motion judge that Salerno’s interests were represented in the TRREB proceeding through RE/MAX. The fact that Salerno was technically not a party to the proceeding is of no consequence in the particular circumstances of this case. As observed by the Supreme Court in Danyluk, at para. 60, the concept of privity is “somewhat elastic” and it is impossible to be categorical about the degree of interest which will create privity. Determinations must be made on a case-by-case basis.
[37] In the particular circumstances of this case, we are satisfied that RE/MAX was the privy of Salerno. RE/MAX held the disputed portion of the commission in trust. As the motion judge found, when TRREB denied party status to Salerno, RE/MAX represented Salerno’s interests, and as a result of that direction all parties were clearly aware of this. For its part, Salerno clearly understood that it would be bound by the decision as the motion judge found.
[38] As the Supreme Court stated in Danyluk, the rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. There is residual discretion in the court to determine whether issue estoppel should be applied even if the technical requirements are met: Danyluk, at para. 33.
[39] Moreover, even if the technical requirements of any Danyluk factor were not met, the Supreme Court has noted that Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel 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: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37.
[40] This is the case here. Were the action against Salerno to proceed, there would be the potential for the decision in that action to undermine the findings of the TRREB arbitration panel, already upheld on appeal, since the underlying claims in both proceedings are the same. The motion judge’s conclusion to dismiss the claim on the basis of abuse of process does not work an injustice and should not be interfered with.
[41] We note that dismissal of this ground alone is sufficient to dispose of the appeal.
[42] Second, Intercity submitted that the motion judge erred in law in finding that the court lacked jurisdiction on the basis that the inherent jurisdiction of the Superior Court had been ousted by the TRREB Arbitration Guidelines.
[43] We also reject this ground of appeal. There is no dispute that Intercity is a REBBA member subject to the TRREB Arbitration Guidelines. The Guidelines provide in relevant part that:By virtue of the By-Law, all members have agreed to submit all claims to Arbitration as provided for in the By-Law, and the Hearing Panels are given exclusive jurisdiction to hear or settle all Claims, with the exception of Claims where both parties have agreed in writing to have their Claims resolved in another forum. No legal action or other proceeding shall be taken by any Member with regards [to] the subject matter of a Claim, except as previously mentioned. [44] TRREB jurisdiction was clear, exclusive, and was not waived: TeleZone, at para. 92. Intercity irrevocably attorned to that jurisdiction as a registrant and in fact invoked the jurisdiction to advance its claim to the commission in this particular case, such that TRREB was the appropriate forum in which commission disputes such as this were required to be determined. That itself is sufficient.
[45] Moreover, in Intercity’s TRREB Arbitration Claim Form, it confirmed that it “hereby agrees to abide by the award of the arbitrators”. As observed by the motion judge, nothing in her decision ousts the jurisdiction of the court with respect to Intercity’s claim, if any, against Mr. Cardwell.
[46] Third, Intercity submitted that the motion judge erred in law in finding that Intercity was estopped from advancing a claim against Salerno because the issue was fully adjudicated and determined through the TRREB proceeding such that this action constituted an abuse of process.
[47] To the extent that this ground of appeal is substantively different than the first ground, we reject it also. For the above reasons, we are satisfied that this action against Salerno is inescapably an attempt by Intercity to relitigate the very issue already determined in the TRREB proceeding with the result that it is, as found by the motion judge, an abuse of process. . Ontario Public Service Employees Union v. Ontario (Solicitor General)
In Ontario Public Service Employees Union v. Ontario (Solicitor General) (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR, here where the Grievance Settlement Board "Arbitrator ruled the grievances were barred based on the doctrines of issue estoppel and collateral attack".
In this labour context, the court considers issue estoppel and it's discretionary nature:[14] The three preconditions of issue estoppel are: (i) whether the same question has been decided; (ii) whether the earlier decision was final; and (iii) whether the parties, or their privies were the same in both proceedings: Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 254; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, at para. 27.
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[23] The Arbitrator correctly identified and applied the two-part test for issue estoppel. The Arbitrator first considered whether the three preconditions for issue estoppel were met; after concluding that the preconditions were met, the Arbitrator then considered whether he should exercise his discretion to decline the application of issue estoppel: Angle; Figliola; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.
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[27] In Figliola, Abella J., writing for the majority, addressed the principles underlying the doctrine of issue estoppel at para. 27:These concepts [the three preconditions for issue estoppel] were most recently examined by this Court in Danyluk, where Binnie J. emphasized the importance of finality in litigation: “A litigant…is only entitled to one bite at the cherry…Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided” (para. 18). Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50). All of this is guided by the theory that “estoppel is a doctrine of public policy that is designed to advance the interests of justice” (para. 19). [28] In considering whether the issue is the same, the task is to identify whether the “source of concern” has already been decided “within the same factual and legal matrix”: Canadian Union of Public Employees, Local 59 v. City of Saskatoon, 2014 SKCA 14, at para. 47; Hebron v. University of Saskatchewan, 2015 SKCA 91, at para. 69. Parties should not try to impeach findings by the “impermissible route of relitigation in a different forum”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 46.
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[31] The Arbitrator relied on Figliola, citing Danyluk, at para. 57: “Having chosen not to judicially review the decision as they were entitled to do, the complainants cannot then claim that because the decision lacks “finality” they are entitled to start all over again before a different decision-maker dealing with the same subject matter.” The Arbitrator found that OPSEU had the right to file an application to the OLRB to appeal each of the Inspectors’ decisions. For purposes of an appeal to the OLRB, an order of an inspector specifically includes the refusal to make an order or a decision: OHSA, s. 61(5). That OPSEU did not appeal made “the Inspectors’ decisions final in these circumstances”: GSB Decision, at para. 59.
[32] The Arbitrator’s findings and conclusions on whether the preconditions for issue estoppel were met were reasonable and justified in relation to the relevant factual and legal constraints having a bearing on his decision.
(ii) Exercise of the Arbitrator’s Discretion
[33] OPSEU argues that in exercising his discretion to apply the doctrine of issue estoppel, the Arbitrator ignored OPSEU’s reasonable and legitimate expectations that the GSB would hear the grievances; that OPSEU did not initiate the processes resulting in two of the Inspector decisions; and that the GSB Decision may discourage unions and members from accessing OHSA protections.
[34] The Arbitrator correctly observed that, “the essential question in any given case is whether it would be unfair to apply the doctrine [of issue estoppel] in the circumstances of the case”: GSB Decision, at para. 52. The Arbitrator reasonably found that in the circumstances of this case, there was “little unfairness” to OPSEU, having chosen the Inspector route to deal with their health and safety concerns, to require them to follow that process through rather than to choose a different process”: GSB Decision, at para. 68. In exercising his discretion, the Arbitrator had regard for the principles underlying the doctrine of issue estoppel, including the general presumption of finality and the advancement of the interests of justice through the avoidance of duplicative proceedings. OPSEU’s argument that the OLRB “likely would have deferred to the grievance process” is speculative.
[35] OPSEU’s argument that the GSB Decision may discourage unions and members from accessing OHSA protections is also speculative. OPSEU’s argument that the Arbitrator failed to consider the “unfairness” of barring OPSEU’s grievances as a result of employee-initiated work refusals seemingly ignores the GSB’s labour relations expertise. Given its discretionary nature, the GSB Decision is entitled to a high degree of deference.
[36] In the result, applying the correct legal tests, and considering the circumstances of the case, the Arbitrator refused to hear the grievances because of the similarity in the issues and the parties. The Arbitrator balanced the need for finality against any potential unfairness in exercising his discretion, reasonably, to apply the doctrine of issue estoppel. His decision was reasonable. . Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002
In Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002 (Div Court, 2024) the Divisional Court denied a motion for a stay pending appeal, here where the appellant appealed a LAT order "directing the Respondent Registrar to carry out a Notice of Proposal" to revoke both a car dealer and motor vehicle salesperson MVDA registration.
The court considers a stay pending appeal of the LAT order, here where the appellants had already sought and been denied a stay before the LAT [paras 20-24]. The respondent Registrar resisted on issue estoppel grounds:Issue Estoppel/Res Judicata
[26] The Respondent argued that the court should decline to hear the motion for a stay on the merits, but should apply the doctrine of issue estoppel/res judicata. In the Respondent’s submission, the test in Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460 at para. 20, is met in this case because:i. The same issue has been decided;
ii. The previous judicial decision was final; and
iii. The parties to the judicial decisions or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. [27] Further, the Respondent submits that there is no reason for this court to exercise its residual discretion to allow the stay motion to be re-litigated. There has been no change of circumstances that have altered the nature of the issue to be determined, there are no special circumstances warranting a refusal, and the application of the doctrine would not work an injustice.
[28] I decline to dismiss the motion for a stay based on issue estoppel. While the same issue has come before this court as was addressed by the Tribunal below, this court has the discretion to hear motions to stay pending appeals. The Appellants have brought a modified proposal forward on this motion to stay in the form of monitoring and a complaints fund. Accordingly, I permitted the Appellants to proceed on the motion to stay. . Manulife Ontario Property Inc. v. MPAC and Ottawa (City)
In Manulife Ontario Property Inc. v. MPAC and Ottawa (City) (Div Court, 2023) the Divisional Court considers an administrative [Assessment Review Board (ARB)] application of issue estoppel:[10] MPAC then brought a motion before the Board seeking an order that Manulife is estopped from raising the CVA of the subject property for the 2021-2022 taxation years. MPAC’s submission was that the Board had finally determined the issue of the 2016 CVA when it accepted the settlement made by the parties and incorporated the settlement into orders. Alternatively, MPAC argued that relitigating the 2016 CVA would be an abuse of process.
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Analysis
Did the Board Misapply the Doctrine of Issue Estoppel?
[17] In its decision, the Board correctly described the test for issue estoppel (at para. 14):The three criteria that must be met for issue estoppel to apply are well- established, as articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 at paragraph 26, upheld at the Divisional Court in Wabi Iron & Steel Corp. v Municipal Property Assessment Corp., Region No. 29, 2005 CanLII 3984 (ON SCDC) (“Wabi Iron”), and confirmed in numerous subsequent decisions of this Board:a. the same question has been decided;
b. the decision said to create the estoppel was final; and
c. the parties to the decision were the same parties as those to the proceedings in which the estoppel is raised. [18] The Board described issue estoppel as a doctrine which prevents wasting time and resources on an issue that has been decided by a court or competent tribunal. It referred to prior decisions on that point including Smith v Municipal Property Assessment Corporation, Region No. 23, 2018 CanLII 35052 (ON ARB) and MPAC v. Hyde 2013 CarswellOnt 66 at para. 18.
[19] The Board correctly held that issue estoppel can be applied to cases which determine an issue in dispute by way of a consent judgment, citing the decisions in R. v. Dieckmann, 2017 ONCA 575 (CanLII) at paragraph 35; Spadacini-Kelava v. Kelava, 2020 ONSC 7907 (CanLII) at paragraph 106; First Capital Holdings (Ontario) Corporation v Municipal Property Assessment Corporation, Region 09, 2022 CanLII 56354 (ON ARB) at paragraph 27(c).
[20] The Board considered the Divisional Court’s decision in Wabi Iron & Steel which determined that although a taxpayer has a right to an annual appeal to seek to establish a new CVA based on considerations such as a change in the state or condition of the property, this does not prevent the operation of issue estoppel from applying to the CVA as of the valuation date.
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[22] In Wabi-Iron & Steel, the taxpayer sought to appeal the assessment within the four-year cycle, despite the Board’s prior finding that the CVA for that cycle was determined to be $1,644,000. The court found that although a taxpayer has annual litigation rights they are not entitled to re-litigate the assessed value as of the valuation date, absent , for example, a change in the state and condition of the property. Hennessy, J wrote:The application of issue estoppel in this case does not negate the right of the taxpayer to litigate the assessment. The right to complain of assessments in each year is provided for by the Assessment Act. The Board is required to hold a hearing when a complaint is filed. There is a continuing right to challenge the current value on the basis of evidence of a change in the property. (Emphasis added) In Wabi-Iron & Steel, the Board had determined the CVA for the four-year cycle in an earlier proceeding. Thus the Divisional Court upheld the application of issue estoppel to the issue of the CVA:The Board carefully considered each of the three criteria and it was reasonable to find that they were met. Consequently the Board reasonably determined that the question of June 30, 1996 value was res judicata and that the appellant should be estopped from raising it on the present complaint. [23] But as the decision in Wabi-Iron & Steel found, once a decision is made as to the current assessed value as of the valuation date for the four-year cycle, this decision is subject to the doctrine of issue estoppel because the legislation applies the value as of that date for a defined period.
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[33] Manulife submits that despite these findings, the Board could have exercised its discretion to hold a hearing and not apply the doctrine of issue estoppel. I am satisfied that it appropriately considered whether to do so and did not err in law in considering and declining to exercise its discretion.
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[35] The Board described the purpose of this discretion with reference to the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII) at para 33: “The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.”
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[39] The Board correctly identified the law of issue estoppel and applied the doctrine to the facts before it. The latter finding is arguably not an issue of law that can be appealed absent an error in principle. I am satisfied that the Board properly considered whether to exercise its discretion not to apply the doctrine and properly directed itself to the nature of the discretion. It made no error in doing so. I therefore would not give effect to this ground of appeal.
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