Res judicata is a legal principle which means “a matter already judged.”

Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining, as follows:

  • the same question has been decided earlier in the proceedings;
  • the prior decision that is said to create the estoppen must have been final; and
  • the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised.

There are two areas in which res judicata typically arises in the immigration context.  These are misrepresentation and access to the Immigration Appeal Division.

Misrepresentation

In Liu v. Canada (Public Safety and Emergency Preparedness), 2019 FC 849, an individual committed misrepresentation in her Canadian Experience Class application.  IRCC did not address the misrepresentation and refused the application for other reasons.  Ms. Liu then submitted a spousal sponsorship application.  While this was being processed, a visa officer determined that the previous misrepresentation was not relevant to that application.  The Canada Border Services Agency then commenced removal proceedings.  In determining that res judicata did not apply, the Federal Court determined that the first part of the Danyluk test, namely whether the same issue had been decided, did not apply as the issue of whether the mistatement was misrepresentation in the previous application had not been decided.  The decision stands for the proposition that if an applicant lies in two applications, and a visa officer decides that this did not constitute misrepresentation in one application, that it is not preclude immigration officials from pursuing misrepresentation allegations for the other application.

Access to the Immigration Appeal Division

In Tan v. Canada (Citizenship and Immigration), Justice Zinn analyzed whether the birth of a child changes the parties to the matter. Justice Zinn stated that:

I am of the view that while the birth of their own son may change the members of her family, it does not change the relevant parties. Both now and in 2008, the relevant parties before the IAD, … where Ms. Tan and the Minister. If her submission were accepted, it would lead to the absurdity that she could file a new application for Mr. Chew every time they had a child. The issue before the IAD in the decision under the review is the status of Mr. Chew, and has not been changed by the birth of their son.