Res Judicata
Legal Process 2008
Prof. C. Hanycz
Definition:
Res Judicata
- common law doctrine that prevents
relitigation of issues that have
already been judicially determined.
- *** appealing a previously
determined issue is fine, but
relitigating it is not**.
Policy Rationale:
1. Fairness to Successful Litigant:
encouraging an end to litigation and
avoiding the situation where a successful
litigant is ‘twice vexed’;
2. Judicial Efficiency: avoiding a squandering
of court resources;
3. Both balanced against competing policy
consideration of fairness to unsuccessful
litigant who is now prevented from having
another day in court!
Evolution of Res Judicata
Development of common law doctrine of res
judicata has been in three ‘waves’:
1. Cause of Action Estoppel (Claim Preclusion
in U.S.);
2. Issue Estoppel (Issue Preclusion in U.S.);
3. Abuse of Process/Non-mutual Issue
Estoppel.
Cause of Action Estoppel
arises when a court has adjudicated an action
between parties and a subsequent action is
brought between the same parties that is
directly connected to the initial action.
The final decision in the first action binds the
parties and, as such, the unsuccessful party
from the initial action is ‘barred’ from
relitigating the matter.
Cause of Action Estoppel
Hoque (N.S.C.A., 1997): holds that matters
already litigated are barred from relitigation,
but so are matters that ought to have been
included in the initial action.
What do you think of this?
Issue Estoppel
triggered when the second action involves a
different cause of action/claim
action would not be barred on the grounds of
Cause of Action Estoppel
broadening of the concept of res judicata to
avoid the situation of an issue being
relitigated, despite the fact that it is being
raised in a different claim or as part of a
different cause of action.
Issue Estoppel
the courts treat any issues decided in the first
case that also arise in the second case as
having been settled and, therefore, not open
to relitigation. Again, a litigant is barred from
relitigating these issues.
…or ‘estopped’ from relitigating the issue!
Test for Issue Estoppel
Three-part test giving rise to issue estoppel:
1. Same issue must arise in the initial and
subsequent litigation;
2. Must exist a ‘prior, final, judicial decision’
respecting the issue now being raised in
subsequent litigation;
3. Mutuality Requirement: It must be the
same parties in the initial litigation and the
subsequent attempt to litigate the issue.
Why Mutuality?
Common Law recognition that it would be unfair to bind
someone to judicial decision if that person had not
been a party to the original litigation.
The ‘newcomer’ to the issue should only be bound by its
determination if she participated in the process (ie.
permitted to argue her case) that led to the original
judicial decision.
To hold otherwise would unfairly burden someone with a
legal decision following a process that he had not
been able to participate in.
Abuse of Process/Non-mutual
Issue Estoppel
Expansion of the doctrine of issue estoppel to
encompass situations where the parties to
the subsequent litigation where the issue is
re-raised are not the same parties as
participated in the first action
American courts: abandoned mutuality; added
doctrine of non-mutual issue estoppel
British courts: resist this approach; use ‘abuse
of process’ to achieve same ends
Abuse of Process/Non-mutual
Issue Estoppel
McIlkenny v. Chief Constable (1980, C.A.)
- Convicted IRA bomber tried to ‘relitigate’
issue of police beating (unsuccessful in
criminal trial). Denning resisted, claiming new
branch of issue estoppel not requiring
mutuality
- House of Lords resisted reasoning –
preferred rhetoric of ‘abuse of process’
Application of Non-mutual Issue
Estoppel/Abuse of Process:
1. Impact of Criminal Convictions on
Subsequent Civil Proceedings.
2. Impact of Administrative Tribunal Decisions
on Subsequent Civil Proceedings.
Impact of Criminal Convictions on
Subsequent Civil Proceedings
What application does a criminal conviction have, if
any, in a subsequent civil proceeding?
General rule in Ontario : criminal conviction is
admissible as prima facie evidence of civil
liability only, and that the reasons for that
conviction or the findings of fact in support of the
conviction are not admissible
As with any prima facie evidence of liability, it is
rebuttable by the defendant...therefore potential for
the relitigation of the bases of the conviction
Impact of Criminal Convictions on
Subsequent Civil Proceedings
So..are civil courts required to relitigate (via the
rebutting of a presumption) the crim conviction
of an offender in a subsequent civil action?
No  seen as a ‘collateral attack’ on the decision
Demeter (SCC, 1984) using ‘a civil action to
initiate a collateral attack on a final decision
of a criminal court of competent jurisdiction
in an attempt to relitigate an issue already
tried is an abuse of the process of the court’
Impact of Criminal Convictions on
Subsequent Civil Proceedings
C.U.P.E. v. City of Toronto and Stanley (SCC, 2003)
Issue: Can a person convicted of sexual assault, and dismissed
from his employment as a result, be reinstated by a labour
arbitrator who concludes, on the evidence before him, that the
sexual assault did not take place?
Analysis:
1. Issue Estoppel ?
2. Collateral Attack ?
3. Abuse of Process?
Impact of Administrative Tribunal
Decisions on Subsequent Civil Proceedings
1.
Rasanen v. Rosemount Industries (OCA, 1994)
2.
Minnot v. O’Shanter Develop. Co. (OCA, 1999)
3.
Danyluk v. Ainsworth Technologies (SCC, 2001)