The Second Opinion: The BCCA Clarifies The Doctrine Of Res Judicata

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Regrettably, Canadian courts have not always done an adequate job of distinguishing between the two discrete branches of res judicata — i.e., (i) issue estoppel and (ii) cause of action estoppel - nor in aligning those two forms of res judicata with the related but separate doctrine of (iii) abuse of process.

Helpfully, the recent ruling in Erschbamer v. Wallster, 2013 BCCA 76, not only provides a clear and succinct overview of the three doctrines, but also clarifies several under-developed aspects of the law.

The Court of Appeal commenced with a useful summary of the essential nature of each of the three doctrines (emphasis added):

[12] ...The [res judicata] doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters.

The issue for the Court was whether one or more of these doctrines justified striking out portions of the defence in the current proceeding, based on the outcome of an earlier proceeding involving the same parties.

Both actions involved neighbouring landowners:

In the earlier action, Ms W (as plaintiff) had sued Ms E (as defendant), seeking the cancellation of an easement and restrictive covenant over Ms W's property. Ms W was wholly unsuccessful in this first proceeding, both at trial and on appeal. In the second (and current) action, the previous defendant, Ms E, sued Ms W to enforce the same easement and restrictive covenant, which Ms W was now violating. In her defence to the second proceeding, Ms W raised several arguments which — it was alleged — had or could have been raised by her (as plaintiff) in the first action. On this basis, the trial judge struck out those aspects of Ms W's defence. The Court of Appeal affirmed the trial judge's decision to strike out one of Ms W's defences, but not a second, and would have justified both results on the basis of either cause of action estoppel or abuse of process. Issue estoppel, however, was found to be inapplicable.

In rejecting the...