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Review - Fresh Law - Issue Estoppel. Centurion Building Corporation v. The Shaw Festival
In Centurion Building Corporation v. The Shaw Festival (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this where "planning applications were granted and a demolition permit was issued" regarding the old Royal George building in Niagara-on-the-Lake.
Here the court considered what amounts to a 'fresh law' issue, here styled as 'issue estoppel' due to the granting of a procedural matter on consent:(ii) Is the Issue Properly Before the Court?
[24] The respondents first raised the issue of standing in their factums filed on the judicial review application and did not raise it during the failed appeal to the Ontario Land Tribunal or seek a decision about it during the stay motion before Bordin J. The applicant submits that standing is therefore a “non-issue” because Bordin J.’s granting of the stay motion on consent amounted to a finding that the applicant had standing. The applicant also relies on the doctrine of issue estoppel and submits that it placed detrimental reliance on the respondents’ position.
[25] In my view, the issue of standing is properly before this court. Contrary to the applicant’s submission, Bordin J. made no findings about standing as the issue was not raised or argued before him.
[26] The applicant’s submission with respect to issue estoppel is presumably also based on the proceeding before Bordin J. However, for the doctrine to apply, “[i]t will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment,” and the issue must have been “fundamental to the decision arrived at” or “necessarily (even if not explicitly) determined in the earlier proceedings”: Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 255; Danyluk v. Ainsworth Technologies, 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 24. Even if the issue had been “necessarily determined” by Bordin J., his decision was not final, another requirement for the application of the doctrine: Danyluk, at para. 25.
[27] In any event, the application of the issue estoppel doctrine is discretionary: Danyluk, at paras. 62-67. Even if the prerequisites for it are met, I would not apply it in the circumstances of this case because of the short timeline in which the respondents were required to respond to the applicant’s urgent stay motion.
[28] I am also not persuaded that the applicant placed detrimental reliance on the respondents’ position. The respondents raised the issue of standing in their factums, which were filed almost a month prior to the hearing in this court. Counsel for the applicant has not identified any different course of conduct he would have followed had the issue been raised earlier, other than to suggest, in response to questions from the court, that he would have adduced additional evidence of the applicant’s business activities in the Town. However, he was provided with an opportunity to supplement the record during the hearing and did not provide supplementary evidence that would assist in this regard. In these circumstances, the applicant cannot be said to have suffered any detriment: Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at para. 69.
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