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Estoppel - Issue Estoppel III

. R. v. Cowan

In R. v. Cowan (SCC, 2021) the Supreme Court of Canada considered issue estoppel in the context of an appeal court ordering a new trial:
(2) Issue Estoppel

[67] Before concluding, I wish to briefly address the matter of issue estoppel. Mr. Cowan has argued that this Court cannot order a full new trial because the doctrine of issue estoppel prevents the re‑litigation of the Crown’s theory that he is guilty of armed robbery as a principal offender. Specifically, he argues that the requirements of issue estoppel are satisfied, since the trial judge’s finding that the Crown had not met its burden of proving that he was a principal offender was: (1) a final decision; (2) made in a prior proceeding; (3) that involved the same parties (citing R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 52 and 55-56). Respectfully, I would reject Mr. Cowan’s submissions on this point. While the doctrine of issue estoppel is available to an accused in the criminal law context, it is not available to Mr. Cowan here to preclude this Court from ordering a full retrial on the charge of armed robbery.

[68] Issue estoppel does not apply simply by virtue of the fact that a trial has been held. As the Court in Mahalingan explained, the decision that forms the basis for the issue estoppel must have been made in a prior proceeding that was final (paras. 52‑55). That case, however, concerned two separate proceedings and not, as here, a trial and a retrial of the same case following a successful appeal. There is no final decision made in a prior proceeding where an appellate court finds that a verdict of acquittal on a single criminal charge was tainted by legal error and, accordingly, renders that verdict invalid as a whole by setting it aside and ordering a new trial on the relevant charge. This premise was succinctly summarized more than a century ago in the case of Gray v. Dalgety & Co. Ltd. (1916), 21 C.L.R. 509 (H.C.A.), at p. 521, where Griffith C.J. stated: “I never before heard it suggested that a grant of a new trial was a final decision upon any point except that the matter should be further investigated”.

[69] Moreover, as G. Spencer‑Bower and A. K. Turner have explained in The Doctrine of Res Judicata (2nd ed. 1969), at para. 168 (cited with approval in R. v. Duhamel (No. 2) (1981), 1981 ABCA 295 (CanLII), 131 D.L.R. (3d) 352, at p. 357 (Alta. C.A.), aff’d 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555), no party can be estopped from re‑litigating an issue where a verdict is set aside and a new trial ordered:
No finding of the court or of a jury of a trial which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel. And a decision of the court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto, and directing a new trial, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be re‑submitted to the court for fresh consideration. [Footnotes omitted.]
[70] I agree with this statement. When an appellate court orders a new trial in a criminal prosecution, it does so to allow the opportunity “to correct errors in the proceedings at the first trial” (Welch v. The King, 1950 CanLII 8 (SCC), [1950] S.C.R. 412, at p. 417). Such a new trial is a “re‑examination of a case on the same information or indictment”, that “supposes a completed trial, which for some sufficient reason has been set aside, so that the issues may be litigated de novo” (ibid. (emphasis deleted)).

[71] These principles were applied by the Court of Appeal for British Columbia in R. v. Ekman, 2006 BCCA 206, 209 C.C.C. (3d) 121. By way of background, in that case, the accused was acquitted at his first murder trial after his incriminating statement to the police was ruled inadmissible. On appeal, the court overturned that ruling and ordered a new trial. In the second trial, the accused was convicted of attempted murder, but acquitted of first degree murder. A Crown appeal from that acquittal was allowed and a third trial was directed on the charge of murder. At the third trial, the accused argued that issue estoppel prohibited the Crown from proceeding against him as the principal offender in the murder. He asked the trial judge for an order “limiting the scope of the new trial to the charge of first degree murder as a party only” (R. v. Ekman, 2004 BCSC 900, at paras. 3‑4 (CanLII)). The trial judge rejected this submission. The third trial did not reopen an issue that had been finally decided as the result from the second trial — the acquittal for murder — was entirely set aside. Issue estoppel therefore had no application.

[72] The trial judge’s reasoning was upheld by the Court of Appeal:
Trial No. 3 did not reopen a matter that had been fully litigated between the parties because the result of Trial No. 2 was entirely set aside and a new trial was ordered on all issues. There were errors of law in the charge in Trial No. 2 that impeached the verdict. The Crown appeal in Appeal No. 2 advanced three grounds for setting aside the jury’s verdict. This Court found it necessary to decide only one of those grounds but it is implicit in the decision that the whole of the verdict was tainted and had to be set aside. Otherwise, it would have been necessary to address the other grounds which attacked the entire verdict. All the issues of fact were therefore at large and to be considered afresh in Trial No. 3. No “scandal of conflicting decisions” is involved. No issue was finally decided in Trial No. 2 and, in my view, the doctrine of res judicata and issue estoppel has no application. [para. 22]
[73] Similarly, in the present case, no issue can be said to have been finally decided in the first trial because the result of that trial — the acquittal on the single charge of armed robbery — has been entirely set aside. As the trial judge committed a legal error that had a material bearing on Mr. Cowan’s acquittal, the verdict is necessarily invalid. The findings in the first trial that led to his acquittal must therefore be set aside and cannot form the basis of a claim of issue estoppel.
. Havaris v. Canada (Attorney General)

In Havaris v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered issue estoppel in provincial family law proceedings versus federal CPP proceedings:
[10] The doctrine of issue estoppel applies to prevent re-litigation of an issue where the following criteria are met: the same question was decided in the previous proceeding; that proceeding involved the same parties or their privies; and the previous decision was a final one (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 25, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 92).

[11] Here the questions decided by the Ontario Superior Court and the SST-GD were not the same given the differences between the SLRA and the CPP, which define "“spouse”" differently.

[12] Under Part II of the SLRA, for purposes of the division of property of a deceased who died intestate, where such property has a value below $200,000.00, a "“spouse”" does not include an unmarried spouse but does include a married spouse from whom the deceased has been separated, even if they were separated for several years (SLRA, ss. 1(1), referring to the definition of "“spouse”" in ss. 1(1) of the Family Law Act, R.S.O. 1990, c. F.3, and SLRA, s. 45; General, O. Reg. 54/95 under the SLRA, ss. 1(a)). Conversely, for purposes of support of dependants, under Part V of the SLRA, a "“spouse”" is defined to include persons who are not married and have cohabited "“continuously for a period of not less than three years”" (SLRA, ss. 57(1), referring to the definition of "“spouse”" in s. 29 of the Family Law Act).

[13] Given the different definitions in Part II and Part V of the SLRA, a deceased’s estate may be divided between more than one spouse as that term is defined differently for different purposes. Indeed, that is precisely what occurred in the applicant’s case before the Superior Court, where she was awarded only a relatively small portion of the deceased’s estate.

[14] In contrast, the survivor’s pension under the CPP cannot be split in this way as the CPP provides that only one spouse may be awarded a survivor’s pension (see Canada (Minister of Human Resources Development) v. Tait, 2006 FCA 380, 356 N.R. 382 at para. 22; Carter v. Canada (Minister of Social Development), 2006 FCA 172, 351 N.R. 83 at para. 15; Dilka v. Canada (Attorney General), 2009 FCA 90, 388 N.R. 72 at para. 3).

[15] Under paragraph 44(1)(d) of the CPP, a survivor’s pension is payable to "“the survivor of a deceased contributor who has made base contributions for not less than the minimum qualifying period”". Subsection 42(1) defines the "“survivor”" of a contributor as "“a person who was the common-law partner of the contributor at the time of the contributor’s death”", or, if there is no such person, "“a person who was married to the contributor at the time of the contributor’s death”". The term "“common-law partner”" of a contributor is in turn defined in section 2 as "“a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year”".

[16] While the case law under the CPP has relied on the case law decided under provincial family or succession law legislation for the sorts of factors to be assessed to determine the existence of a conjugal relationship (see, for example McLaughlin v. Canada (Attorney General), 2012 FC 556, 408 F.T.R. 286 at paras. 15-16; Perez v. Hull, 2019 FCA 238, 2019 CarswellNat 4956 at paras. 7 and 22-23; L.H. v. Minister of Employment and Social Development and L.K., 2021 SST 58 at para. 10; C.L. v. Minister of Employment and Social Development, 2020 SST 985 at para. 11), determinations of spousal status under provincial legislation are not binding under the CPP given the different statutory contexts.

[17] Thus, findings made under provincial law as to the existence of a conjugal relationship are not binding under the CPP. Several decisions of the Social Security Tribunal, while not binding on this Court, are instructive on this point: see for example K. B. v. Minister of Employment and Social Development and S. C., 2019 SST 1501 at paras. 14 and 52; J. R. v. Minister of Employment and Social Development, 2019 SST 1357 at paras. 23-24, rev’d on other grounds in Canada (Attorney General) v. Redman, 2020 FCA 209, 2020 CarswellNat 5280); see also, by analogy, A. V. v. Minister of Employment and Social Development, 2019 SST 645 at paras. 9-14 (where the Social Security Tribunal found that the meaning of "“separated”" under provincial law was not determinative for the purposes of the Old Age Security Act, R.S.C. 1985, c. O-9).

[18] The second requisite factor for the application of the doctrine of issue estoppel is likewise absent in the instant case as the Minister of Employment and Social Development was not a party to the case before the Superior Court but was the respondent and essential party before the SST-GD and SST-AD. Nor could the Minister be considered a "“privy”" to the deceased’s married spouse as the Minister’s interests were not allied with hers. In The Doctrine of Res Judicata in Canada, 4th ed. (Toronto: LexisNexis Canada Inc. , 2015) at pp. 80-81, Donald Lange explains that for a party in later proceedings to be considered the privy of another party who participated in earlier proceedings, there must be a community or unity of interest between the two parties; their interests "“cannot be different in substance.”" They must have "“a parallel interest in the merits of the [previous] proceeding, not simply a financial interest in the result.”" This cannot be said of the Minister and the Added Party as the Minister has an independent interest in the application of the CPP and an obligation to ensure its correct application to all claimants, which is different from the Added Party’s interest in the deceased’s estate.
. Qin v. Ontario Securities Commission

In Qin v. Ontario Securities Commission (Ont CA, 2021) the Court of Appeal considered the relationship between issue estoppel and abuse of process:
[15] Although the motion judge referred to both issue estoppel and abuse of process in holding the respondents’ claim could not go forward, he correctly analyzed the arguments by reference to the essential elements of issue estoppel: Qin v. Ontario Securities Commission, 2020, ONSC 1145, at paras. 11, 17. The doctrine of abuse of process may preclude re-litigation that does not meet the exact criteria for issue estoppel: see Winter v. Sherman Estate, 2018 ONCA 703, at para. 7. However, on the facts of this case, there is no basis apart from issue estoppel to argue the malicious prosecution claim constitutes an impermissible re-litigation of decided facts. I will examine the merits of the appellants’ argument solely by reference to the elements of issue estoppel.

[16] Issue estoppel protects against the abuse of the court’s process by preventing an unsuccessful party from re-litigating a material fact or issue previously and finally decided in proceedings involving the same parties or their privies. The doctrine is not absolute and will not be applied if the interests of justice dictate otherwise: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at paras. 20, 24-25, 33.

[17] Issue estoppel operates to preclude re-litigation when an issue or material fact that must be decided in the second proceeding raises the same question that was decided in the previous proceeding. Binnie J. explained this requirement in Danyluk, at para. 54:
… In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant’s wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law and mixed fact and law that are necessarily bound up with determination of that “issue” in the prior proceedings. [Emphasis added.]
[18] Issue estoppel extends to findings that are “necessarily bound up” in the findings made in the prior proceeding. The outcome of this appeal turns on whether a determination the OSC had reasonable and probable cause to commence proceedings against the appellants was “necessarily bound up” in Pattillo J.’s finding that the OSC allegations raised “a serious issue to be tried”.


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