Does issue estoppel prevent an appellant from seeking nunc pro tunc relief?

The cross-appeal raises a novel and challenging question, namely whether the principle in Henderson v. Henderson (1843), 67 E.R. 313, 3 Hare 100 (V.C.), applies to issue estoppel. That principle, applicable to cause of action estoppel, holds that a final decision of the court bars re-litigation not only of what was decided, but also what could and should have been decided by the court. The motion judge concluded that both issue estoppel and abuse of process likely applied to prevent the appellant from seeking nunc pro tunc relief because he could have requested that relief when he brought his “conditional leave” motion or on his previous appeal to this court.