The Size and Scope of Litigation

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 108-139

108

CHAPTER 5

THE SIZE AND SCOPE

OF LITIGATION

A. INTRODUCTION

This chapter ex plores the var ious ways in which the si ze and scope of

litigation may be expanded or constrained. The principles at issue in

this area of procedural law include judicial economy, fairness, access to

justice, and stare decisis (the binding of parties to a previous judgment).

These principles often stand in tension with one another. Perfect access

to justice, for ex ample, might suggest that any party should be able to

bring any other part y to court at any time. Fairness, however, suggests

that, once a party has lost a court proceeding, it should not be able to

drag the win ning party back to court to litigate the same matter or

issue. If there is an overarching theme to the topic of the size and scope

of litigation, as with procedural law generally, it is balance. The legitim-

ate interests and concerns of plai ntiffs must be balanced against those

of defendants. The interest s of those i nvolved in the litigation must be

balanced against t hose of non-parties who either wish to be par t of the

litigation or whom exist ing parties w ish to bring into the litigation.

Also, the desires of litigants must be balanced with both the public

interest and the limited re sources of the civil justice system.

This balance is achieved using a number of legal i nstruments in-

cluding common law doctrines, statutor y provisions, and court- or

jurisdiction-ba sed procedure rules. While the standards discusse d

below are fairly well known, judicial di scretion continues to lead to

considerable v ariat ion.

The Size and Scope of L itigation 109

The chapter i s divided into three main s ections. The f‌irst and lar-

gest section is devoted to a discussion of res judicata, issue estoppel, and

abuse of process — related doctrine s that together const rain relitigation.

The second section considers the law relating to intervention and the

possibility that both the size and the scope of litigation may be a ffected

by intervening parties. The third sect ion deals w ith litigation where the

size and /or scope of litigation e xpands because of joinder and consolida-

tion or by virtue of counterclaim s, cross-claims, and third-par ty claims.

B.

RES JUDICATA

, ISSUE ESTOPPEL, AND

ABUSE OF PROCESS

The pur pose of litigation is to resolve conf‌licts in a matter that brings

closure and f‌inality. Losing parties, however, do not always experience

closure and sometimes believe that f‌inality will result only from further

successful claims. Should these parties be given the opportunity to pursue

claims th at raise the same issues or actions as a f‌irst fa iled proceeding?

By virtue of the doctrine known generally as res judicata (“a matter

adjudicated”), if one party sues another, and the matter is resolved, the

losing party cannot sue again for the same cause of action. The require-

ments of res judicata are: that the same cause of action has been decided;

that the judicial decision which is said to create the estoppel was f‌i nal;

and that the parties to the judicial decision are the same persons as the

parties to the proceed ings in which the question of estoppel is raised.

The doctrine, which arose at common law, is a mean s of preventing

duplicative litigation and ref‌lects both a public interest i n ensur ing f‌i-

nality in litigation — sometimes expressed through the m axim inte rest

rei publicae ut f‌inis sit litium — and an individual interest in success-

ful litiga nts not being “tw ice vexed” by t he same matter — sometimes

expressed through the maxim nemo debet bis vex ari pro una et eadem

causa.1 Speci f‌ically, by prohibiting the relitigation of issues that have

already been addressed, res judicata reduces the likelihood th at con-

trasting judgments will be given in identical cas es, thereby promoting

consistency, predictability, and faith i n the legal system. The doctrine

also en sures judicial economy by compelling parties to bring forward

all of the issues properly belonging to t he litigation.2

1 See Lockyer v. Ferryma n (1877), 2 A.C. 519 at 530 (H.L.). For disc ussion, see

also Arthur J.S. Hall & Co. v. Simons, [2002] 1 A.C. 615 at 701 (H.L.).

2 Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 at para. 21,

leave to appeal to S.C.C. ref used, [1997] S.C.C.A. No. 656 [Hoque].

CIVIL LITIGATION110

In the classic scenario of the same parties seeki ng to relitigate the

same matter, the rationale and operation of res judicata is clear:

The law r ightly seek s a f‌inality to litigation. To advance that object-

ive, it requires litiga nts to put their best foot forw ard to establish t he

truth of their allegations when f‌irst called upon to do so. A litigant,

to use the vernacular, is only entitled to one bite at t he cherry . . . .

An issue, once decided, should general ly not be re-lit igated to the

benef‌it of t he losing p arty a nd the h arassment of the w inner. A per-

son should only be vexed once in the same cause. Duplicative l iti-

gation, potentia l inconsistent result s, undue costs, and inconclusive

proceedings are to b e avoided.3

This rationale i s less clear, however, where some of the parties are t he

same and others are not. For the new parties, this “relitigation” actual ly

represents a f‌irst attempt. Also, i n the cla ssic scenar io, both the litiga-

tion and the relitigation take place in a judicial proceeding. Increas-

ingly, however, the court s are confronted with res judicata arguments

where t he original decision is issued by a tr ibunal or administr ative

agency. In such sett ings, the courts must be mindful of the proced-

ural safeguards, remedies, and proce sses of appea l that operate w ithin

that specif‌ic agency. The le ss the f unctions and procedur al proce sses

of an administrative tribunal re semble those of a court, the gre ater the

chance of relitigation.

These f‌ine distinctions have led to some doubt as to whether courts

are bound by the doct rine at all. Some courts have come to see res

judicata as a discretion that may be exercised but need not be applied

where to do so would be contrary to a just resolution between the par-

ties. These court s believe that t he rules governing res judicata are not

to be mechanically applied. Rather, even where the preconditions of res

judicata are sat isf‌ied, the court must deter mine whether, as a matter of

discretion, estoppel ought to be applied. Whi le this e xercise of di scre-

tion is welcome where an injustice might otherwise be done, it also

introduces greater uncertainty and a possibility of inconsistency into

this area of procedural l aw.

Res judicata has spawned t hree di stinct doctr inal streams in Can-

ada — cause of action estoppel, issue estoppel, a nd abuse of process.

Cause of action estoppel precludes a litigant from assert ing a claim or a

defence that it asserted or had an opportunity of assert ing in past pro-

ceedings. Issue estoppel precludes a litigant from asserting a position

that is inconsistent or contrar y to a funda mental point decided in a past

3 Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 46 0 at para. 18 [Danyluk].