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 explores the various ways in which the size 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 example, might suggest that any party should be able to

bring any other party 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 winning 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 plaintiffs must be balanced against those

of defendants. The interests of those involved in the litigation must be

balanced against those of non-parties who either wish to be part of the

litigation or whom existing parties w ish to bring into the litigation.

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

interest and the limited resources of the civil justice system.

This balance is achieved using a number of legal instruments in-

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

jurisdiction-based procedure rules. While the standards discussed

below are fairly well known, judicial discretion continues to lead to

considerable variation.

The Size and Scope of L itigation 109

The chapter is divided into three main sections. The f‌irst and lar-

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

abuse of process — related doctrines that together constrain relitigation.

The second section considers the law relating to intervention and the

possibility that both the size and the scope of litigation may be affected

by intervening parties. The third section deals with litigation where the

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

tion or by virtue of counterclaims, cross-claims, and third-party 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 that raise the same issues or actions as a f‌irst failed 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 f‌inal;

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

parties to the proceedings in which the question of estoppel is raised.

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

duplicative litigation and ref‌lects both a public interest in ensuring f‌i-

nality in litigation — sometimes expressed through the maxim inte rest

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

ful litigants not being “tw ice vexed” by the same matter — sometimes

expressed through the maxim nemo debet bis vexari pro una et eadem

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

already been addressed, res judicata reduces the likelihood that con-

trasting judgments will be given in identical cases, thereby promoting

consistency, predictability, and faith in the legal system. The doctrine

also ensures judicial economy by compelling parties to bring forward

all of the issues properly belonging to the 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 seeking to relitigate the

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

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

ive, it requires litigants to put their best foot forward 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 generally not be re-lit igated to the

benef‌it of the losing party and the h arassment of the w inner. A per-

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

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

proceedings are to be avoided.3

This rationale is less clear, however, where some of the parties are the

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

represents a f‌irst attempt. Also, in the classic scenario, both the litiga-

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

ingly, however, the courts are confronted with res judicata arguments

where the original decision is issued by a tribunal or administrative

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

ural safeguards, remedies, and processes of appeal that operate within

that specif‌ic agency. The less the functions and procedural processes

of an administrative tribunal resemble those of a court, the greater the

chance of relitigation.

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

are bound by the doctrine 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 courts believe that the rules governing res judicata are not

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

judicata are satisf‌ied, the court must determine whether, as a matter of

discretion, estoppel ought to be applied. While this exercise of discre-

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 law.

Res judicatahas spawned three distinct doctrinal streams in Can-

ada — cause of action estoppel, issue estoppel, and abuse of process.

Cause of action estoppel precludes a litigant from asserting a claim or a

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

ceedings. Issue estoppel precludes a litigant from asserting a position

that is inconsistent or contrary to a fundamental point decided in a past

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