Does issue estoppel create unfairness through according preclusive effect to the results of a prior proceeding in a subsequent proceeding?

British Columbia, Canada


The following excerpt is from Sekhon v. Tung et al., 2018 BCPC 139 (CanLII):

To determine whether the operation of issue estoppel would create unfairness through according preclusive effect to the results of a prior proceeding in a subsequent proceeding requires a nuanced inquiry. Relevant factors in this inquiry may include, but are not limited to: i. the nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings . . . ; ii. the reasonable expectations of the parties in relation to the scope and effect of the prior proceeding as informed by the text and purpose of the enabling legislation . . . ; iii. the risk of adding to the complexity and length of the estoppel-creating proceeding by attaching undue weight to its results through the application of issue estoppel . . . ; iv. the availability of an appeal from the finding in the estoppel-creating proceeding . . . and v. whether, in all the circumstances of the case, the application of issue estoppel would work an injustice . . . [citations omitted] i. the nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings

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