The Size and Scope of Litigation

AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
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.
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].
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].

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