Last updated on October 17th, 2019
Last Updated on October 17, 2019 by Steven Meurrens
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 whether res judicata applies, 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.
In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available.
When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker. New evidence is relevant to the second step of the analysis.
Finally, where issue estoppel applies it prevents a subsequent decision-maker, at whatever level, from re-considering the issue. For example, issue estoppel could apply to prevent the Immigration Appeal Division from considering a matter that had previously been determined by the Immigration Division, except of course in situations of direct appeals.
There are two areas in which res judicata typically arises in the immigration context. These are misrepresentation and access to the Immigration Appeal Division.
In Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157, Justice Boswell stated that the fact that a sponsor rather than a permanent resident applicant is technically the appellant in an Immigration Appeal Division hearing does not mean that the permanent resident applicant was not a party for the purpose of determining whether res judicata applies. In other words, res judicata could still apply to preclude CBSA from pursuing a permanent resident on misrepresentation allegations where the misrepresentation was previously the subject of an Immigration Appeal Division appeal.
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.
In Mangat v. Canada (Citizenship and Immigration) 2019 FC 1299, Justice Pentney stated that res judicata should not be strictly applied in the misrepresentation context, he wrote:
In considering this question, the starting point is that the common law doctrine of res judicata, and in particular the issue estoppel branch of that doctrine, has been applied to administrative proceedings, but the jurisprudence has consistently stated that the doctrine should be adapted to reflect the particular circumstances of the administrative process. As stated in Danyluk at paragraph 21, and cited with approval in Penner at paragraph 94, ““[in the administrative law] context, the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided.””
The question has arisen in a wide variety of different circumstances, often involving the interaction of the administrative law and common (or civil) or criminal law systems. Thus, a ruling by an Employment Standards Officer on whether unpaid commissions were owed to the former employee was not found to preclude consideration of the same issue by a common law court considering a wrongful dismissal claim (Danyluk). Conversely, a final determination by a criminal court could not be re-examined by a labour arbitrator operating under a collective agreement (CUPE). The application of both stages of the test, but in particular the consideration of the second stage (whether issue estoppel ought to be applied), was considered in light of the nature of the administrative law scheme, viewed in the context of the purpose of the statute, the interests of the parties, and the overall interest in finality of legal proceedings (Danyluk at paras 68-80; Penner at paras 36-48). The touchstone is fairness.
In this case, the relevant considerations include the nature and purpose of the legislative scheme, the obligations on both the Applicant and her first husband, as well as the Respondent in relation to that scheme, and the need to balance the Applicant’s interests in finality with the Minister’s ongoing obligations to administer the legislative regime. The jurisprudence establishes that seeking to maintain public confidence in the administration of IRPA is an important goal, which is necessary to give proper effect to the objectives of the Act set out in section 3. One of the ways this is done is through the ““strict”” interpretation of the misrepresentation provisions set out in section 40; another is the recognition and enforcement of the requirements on applicants to make full, complete, and ongoing disclosure, often referred to as the ““duty of candour”” (see Sidhu v Canada (Citizenship and Immigration), 2019 FCA 169).
In relation to the facts of this case, it is relevant that the two inquiries done by the Immigration Division and the IAD related to different applications submitted at different times by the Applicant, seeking different immigration outcomes, and based on different provisions. The application of issue estoppel in relation to a statutory scheme that will often include a series of stages and different applications must take this reality into account. As noted by Boswell J., the “material misrepresentation” provisions apply to statements that could induce errors in processing a claim in the future and those which have already occurred but have only recently come to light. The obligations on an applicant seeking an immigration status from Canada are ongoing, and when new evidence emerges that could support a finding that a misrepresentation had occurred at a prior stage, it is not unreasonable to consider this in deciding whether issue estoppel should prevent any review of the previous finding. I find this is consistent with the legislative intent reflected in IPRA and with the reasonable expectations of applicants for immigration status.
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.