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ARTICLE · 13 MAY 2013

A Fair Fight: Issue Estoppel And Parallel Proceedings

McCarthy Tétrault
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The Supreme Court of Canada has recently considered when a civil court should bar claims on the basis that the issues in dispute were finally disposed of in a prior administrative proceeding.

CanadaLitigation, Mediation & Arbitration
Timothy Chapman-Smith
Timothy Chapman-Smith
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Litigation has to be fair to both sides of a dispute. Finality is an important aspect of that fairness. Where parallel proceedings have differences in process, procedure, or purpose, is it fair to allow the same parties to litigate the same issues? Or does the fairness of finality take precedence over considerations of process and purpose?

In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada considered when a civil court should bar claims on the basis that the issues in dispute were finally disposed of in a prior administrative proceeding. A 4-3 majority of the Court affirmed the flexible test for issue estoppel, set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, and its requirement that the judge exercise discretion not to apply the doctrine if it would result in unfairness or an unjust result.

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