We’re proud to share that Jacy J. Wingson, KC will be serving as Vice-Chair on the Board of Directors at the Surrey Hospitals Foundation for 2025/2026, where she has been a dedicated board member since 1998.

Reflecting on her long-standing involvement, Jacy shares: “The Foundation plays a vital role in ensuring that the equipment and programs available for residents are quite simply state of the art. It is the difference between providing something acceptable and something exceptional, so that Surrey is a leader in the region in providing care to residents south of the Fraser River. The parallel growth between this region and the Foundation over the years is truly inspirational.”

The Surrey Hospitals Foundation supports one of B.C.’s busiest health regions, funding innovative equipment, technology, and programs that strengthen patient care and community health.

McQuarrie is proud to be a steadfast supporter of the Surrey Hospitals Foundation for the last two decades.

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If you’d like to learn more about our involvement with the Surrey Hospitals Foundation or other community initiatives, get in touch with us today.

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The post Jacy J. Wingson, KC to serve as Vice-Chair on the Board of Directors at the Surrey Hospitals Foundation for 2025/2026 appeared first on McQuarrie Legal Services.

McQuarrie has been recognized in the 2026 edition of Best Law Firms™ – Canada, ranked regionally in 3 practice areas, a testament to our commitment to legal excellence.

Firms included in the 2026 Best Law Firms™ – Canada list are recognized for professional excellence signifying high-quality legal practice and a depth of legal proficiency. Recognized firms, categorized into three tiers, receive acclaim on both national and metropolitan levels, reflecting the extent of their practice and geographic reach. Receiving a tier designation reflects the integrity and reputation earned by law firms.

McQuarrie received the following rankings in the 2026 Best Law Firms™ – Canada:

• Corporate and Commercial Litigation
• Insurance Law
• Real Estate Law

About McQuarrie

McQuarrie is an established Surrey-based, multi-practice law firm optimally equipped to serve businesses, individuals, and institutions in the Lower Mainland and across British Columbia. Since 1967, we’ve consistently grown and adapted to serve the ever-evolving legal needs of British Columbians and continue to deliver innovative, result-oriented legal solutions to our clients.

About Best Law Firms®

Best Law Firms®, ranked by Best Lawyers® and respected for over 14 years, is the most credible ranking of exceptional law firms globally. It is rooted in a rigorous, peer-to-peer, industry-driven evaluation. A ranking from Best Law Firms signifies a high-quality practice and a breadth of legal expertise. Ranked firms, presented in three tiers, are recognized on a national and metropolitan scale, providing legal professionals with an elevated stature from the Best Law Firms recognition. For more information, visit www.bestlawfirms.com.

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For any of your legal needs, please don’t hesitate to reach out to us at 604.581.7001 or by using the contact form below.

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The post McQuarrie Ranked by Best Law Firms™ – Canada in 2026 appeared first on McQuarrie Legal Services.

Our BC municipalities are constantly changing and growing and from time to time, municipal and federal governments undertake projects designed to enhance public infrastructure, safety, and services. These projects may require the acquisition of privately owned land, either in whole or in part.

What You Need to Know

• Project Purposes: Land may be acquired for various purposes such as new roads, public utilities, parks, schools, or government buildings.
• Notification: If your property is identified as being affected by a municipal or federal project, you may first receive informal notice detailing the scope of the project and the potential that your property may be involved and may need to be acquired.
• Your Rights: You have the right to receive fair compensation for your property. You may also have the opportunity to discuss terms and, in some cases, raise concerns or objections by way of negotiations before the formal expropriation process commences.

If You Receive Notice of a Public Project that May Affect Your Property:

1. Contact McQuarrie for a free initial consultation.
2. Read all correspondence carefully and note any deadlines.
3. Participate in any scheduled public meetings or hearings to ensure your voice is heard.

Your property and your concerns matter. Our goal is to ensure that all homeowners are treated fairly and kept informed throughout any land acquisition process.

For all questions and inquires, contact Douglas J. Conolly, c/o Amy Salak at 604.580.7066.

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What Happens to a Deposit When a Purchaser Defaults on a Contract of Purchase and Sale?

A deposit is a common feature in contracts of purchase and sale, particularly in real estate transactions. It serves as a demonstration of the purchaser’s commitment to complete the transaction and provides the seller with a measure of security. But what happens to the deposit if the purchaser fails to fulfill their obligations under the contract?

Purpose of the Deposit

The deposit is typically paid by the purchaser at the time the contract is signed or shortly thereafter. Its primary purpose is to secure the purchaser’s performance and to compensate the seller in the event of a default. The deposit is usually held in trust by a third party, such as a real estate brokerage or lawyer, until the transaction is completed or terminated.

Default by the Purchaser

A purchaser is considered to be in default if they fail to complete the transaction as required by the contract. The most common default is the failure to pay the balance of the purchase price on the closing date. Other defaults may include failing to provide required documentation, breaching warranties, or not satisfying condition precedent.

Forfeiture of the Deposit

When a purchaser defaults, the fate of the deposit depends on the terms of the contract and the applicable law. In most cases, the seller is entitled to retain the deposit as liquidated damages. Courts generally uphold the forfeiture of a reasonable deposit, recognizing it as a genuine pre-estimate of the seller’s damages resulting from the purchaser’s breach.

However, if the deposit is disproportionately large relative to the purchase price, a court may find it to be a penalty and refuse to enforce its forfeiture. The key consideration is whether the deposit amount is reasonable in light of the anticipated loss from a default.

Deposit as Liquidated Damages

The deposit is often characterized as “liquidated damages,” meaning it is intended to represent the damages the seller would suffer if the purchaser fails to complete the transaction. If the seller accepts the deposit as liquidated damages, they may be precluded from pursuing further damages unless the contract expressly allows for additional recovery.

Seller’s Right to Additional Damages

If the seller’s actual losses exceed the amount of the deposit, and the contract does not limit the seller’s remedy to forfeiture of the deposit, the seller may seek additional damages. These damages are typically calculated as the difference between the contract price and the resale price, plus any consequential losses directly attributable to the purchaser’s default.

Return of the Deposit

In some circumstances, the purchaser may be entitled to the return of the deposit. For example, if the contract is terminated due to the seller’s default, or if a condition precedent in the contract is not satisfied through no fault of the purchaser, the deposit is typically returned.

Practical Considerations

The contract should be carefully reviewed to determine the specific terms governing the deposit and the consequences of default.

The deposit is usually held in trust and cannot be released to the seller without the written consent of both parties or a court order.

Disputes over the deposit may require negotiation, mediation, or litigation to resolve.

Conclusion

When a purchaser defaults on a contract of purchase and sale, the deposit is generally forfeited to the seller as liquidated damages, provided the amount is reasonable and the contract so provides. The specific outcome will depend on the terms of the contract and the circumstances of the default. Both parties should ensure they understand their rights and obligations regarding the deposit before entering into a contract of purchase and sale.

If you are currently involved in a dispute pertaining to the return of deposit, you should reach out to me at suppal@mcquarrie.com.

Prepared by,

Sunny Uppal

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McQuarrie is proud to announce that five of its lawyers have been recognized in the 2026 editions of The Best Lawyers in Canada™ and Best Lawyers: Ones to Watch in Canada™, a distinction that highlights outstanding legal talent across the country.

Four McQuarrie lawyers have been named to The Best Lawyers in Canada™ list:

Chris J. Bettencourt – Real Estate Law

Sarando Matheos – Insurance Law

Dan A.T. Moseley – Corporate and Commercial Litigation

Greg P. Van Popta – Real Estate Law

Additionally, Sepideh Alimirzaee has been recognized in Best Lawyers: Ones to Watch in Canada™ for her work in Insurance Law.

Since its first publication in 1983, Best Lawyers has become one of the most respected peer-review guides to legal excellence. Lawyers are nominated by their peers, evaluated for their professional expertise, and confirmed to be in good standing before being recognized.

Best Lawyers: Ones to Watch in Canada™ acknowledges early-career lawyers who demonstrate outstanding professional excellence in private practice in Canada.

McQuarrie – 55 Years Serving British Columbians

McQuarrie is a Surrey-based, multi-practice law firm serving businesses, individuals, and institutions across the Lower Mainland and British Columbia. Since 1967, we have grown alongside our community, delivering innovative, results-oriented legal solutions across a wide range of practice areas. Our main office is located in Central City Tower in downtown Surrey – one of B.C.’s fastest-growing and most dynamic cities.

Media Contact

Wendi Liu
Marketing Specialist
wliu@mcquarrie.com | 6045807041

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We are proud to share a major victory for McQuarrie’s Family Law team, led by David Halkett, Partner, and Krystin Wang, Associate.

In a recent international family law matter under the Hague Convention on the Civil Aspects of International Child Abduction, our team successfully defended a mother’s right to remain in Canada with her children.  The case spanned three international jurisdictions and raised highly complex issues involving family violence and child protection.

Our team successfully argued that returning the children to the requesting jurisdiction would expose them to a serious risk of harm under Article 13 of the Hague Convention. The Court agreed, allowing the mother and children to remain in Canada. As a result, custody and guardianship proceedings will now move forward here British Columbia, ensuring that decisions concerning the children’s best interests are made locally – providing them with stability, safety, and continuity.

This was truly a team effort. We extend our sincere appreciation to our lawyers, David Halkett and Krystin Wang, as well as to our exceptional legal support staff, Christine Cain and Shay Janzen, whose contributions were instrumental in achieving this outcome.

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At McQuarrie, we are dedicated to protecting our clients’ rights with compassion, skill, and determination – particularly in sensitive and complex cases involving cross-border disputes and allegations of family violence.

If you or someone you know requires assistance with custody, guardianship, parenting rights, property matters, or international family law disputes, our experienced Family Law team is here to help and guide you every step of the way.

Contact Our Family Law Team Today at 604.581.7001.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

The post McQuarrie’s Family Law Team Achieves Significant Hague Convention Victory appeared first on McQuarrie Legal Services.

We’re excited to welcome Sara Fry as the new Director of Operations at McQuarrie, a leading full-service law firm based in Surrey, BC, and proudly serving clients across the Fraser Valley and British Columbia.

In this strategic leadership role, Sara will oversee the firm’s Human Resources, Office Services, and Marketing departments, while also managing day-to-day operations at McQuarrie. Her appointment marks an important step in strengthening our operational excellence and continuing to build a positive, inclusive, and high-performing workplace culture.

With more than 10 years of proven leadership experience in both mid-sized regional firms and large international law firms, Sara brings a wealth of knowledge and a strong track record of driving organizational success. Her experience and insights are a perfect fit as McQuarrie continues to grow and adapt to the evolving needs of clients and professionals across Surrey and the Fraser Valley.

As an established law firm in the region, McQuarrie is committed to delivering trusted legal services while investing in a strong internal culture. Sara’s leadership will play a key role in shaping that vision.

We’re proud to have Sara on our leadership team and look forward to the impact she’ll make as we continue to evolve as a leading law firm in Surrey, the Fraser Valley and beyond.

Please join us in welcoming Sara Fry to McQuarrie!

🔗 Connect with Sara here

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Introduction

Where the government forcibly takes an individual’s property for public use or in the public interest through formal expropriation procedures, this is referred to as de jure taking. In these situations, the strict procedural requirements set out in the Expropriation Act^[1] must be followed, and the respective property owner must be compensated. However, situations may arise where the actions of a government body interfere with the property rights of an individual or entity to such an extent that the property is effectively taken, despite no formal process of expropriation or transfer of title. These situations are referred to as de facto or constructive expropriation.

Constructive expropriation is an important concept for both property owners and government entities, though for different reasons. For property owners, the obvious concern is ensuring compensation when property is taken absent the formal expropriation process. For government entities, the concern is understanding the boundaries within which government may act without risking exposure to liability for constructive expropriation claims.

For many years property owners have endured (and governments have enjoyed) a restrictive legal test for constructive expropriation. In 2022 however, the Supreme Court of Canada addressed the test for constructive expropriation in Annapolis Group Inc. v. Halifax Regional Municipality,^[2] and extensive debate ensued regarding Annapolis’ effect on the law of constructive expropriation. Some viewed Annapolis as simply a re-statement of the law, whereas others viewed it as a departure that opened the door for constructive expropriation claims.

This blog weighs in on the above debate by looking at how Annapolis has been applied in the three years since its release.

The Evolution of Constructive Expropriation

At common law, a government act that deprives a property owner of all reasonable use of its property constitutes a constructive taking and imposes an obligation on the government to compensate the property owner.^[3] The legal test for establishing constructiveexpropriation was initially set by the Supreme Court of Canada in Canadian Pacific Railway Co. v. Vancouver (City), which requires the government act to result in:

1. the government’s acquisition of a beneficial interest in the property or flowing from it; and
2. removal of all reasonable uses of the property.^[4]

The test set out in Canadian Pacific proved very challenging to satisfy, making successful claims for constructive expropriation quite rare. However, in 2022 the SCC re-visited the test in Annapolis leading some to speculate that constructive expropriation claims might now have a better chance of success.

In a 5-4 decision, the majority in Annapolis purported to clarify the first branch of the Canadian Pacific test but arguably expanded it by broadening what constitutes a beneficial interest in property. Pursuant to the majority’s decision, a beneficial interest is to be understood as an “advantage” with respect to private property that accrues to the state, and which may arise where private property is regulated in a manner that permits its enjoyment as a public resource.^[5] Furthermore, the majority directed that the beneficial interest inquiry is concerned with the effect of a regulatory measure on the landowner, and the government’s intention is a material fact to be considered in constructive expropriation claims.^[6]

The majority’s decision was met with a strong dissent.  The dissenting justices felt that by replacing beneficial interest with the broader notion of “advantage”, the majority departed from the Canadian Pacific test and significantly expanded the potential liability of public authorities when regulating land use in the public interest.^[7]

Constructive Expropriation Post-Annapolis

Annapolis was recently applied in Teal Cedar Products Ltd. v. British Columbia,^[8] a case concerning the effect of British Columbia’s Haida Gwaii Land Use Objectives Order [the “Land Use Order”]. Teal Cedar Products Ltd. [“Teal”] held licenses to harvest timber on Crown lands in Haia Gwaii, carried out harvesting operations on said lands and owned several mills for processing timber. Starting in 2005, the Haida Nation and the Province embarked on a land use planning process which culminated in the Land Use Order being enacted in 2010. The effect of the Land Use Order was to reduce the available lands upon which licensees could harvest timber.

Teal brought a challenge to the Land Use Order alleging, among other things, that the Land Use Order constituted a constructive taking of its licenses to harvest timber.^[9] Teal argued that the licenses conferred a form of property interest that is susceptible to a constructive taking and that by prohibiting harvesting in certain areas, the Land Use Order constructively took Teal’s licenses as harvesting was no longer viable.^[10]

The Court set out the law from Canadian Pacific and Annapolis and stated that the Land Use Order did not amount to a constructive taking of Teal’s harvesting licenses. With respect to the first branch of the test, the Court stated that the Province did not appropriate any benefit. Instead, the Land Use Order “simply put different or modified parameters in place” which “does not give a benefit or advantage to the Province any more than any legislation or regulation provides a benefit to the Province.”^[11] In essence, the Court found that the Land Use Order conferred only a generalized public benefit which is not the type of benefit or advantage that was contemplated in Annapolis.^[12]

Annapolis was also recently applied by the Alberta Court of Appeal in Altius Royalty Corporation v. Alberta,^[13] a case involving the effect of federal and provincial government action on Altius Royalty Corporation’s [“Altius”] royalty interests in a coal mine in Genessee, Alberta.  The coal from the mine fueled a neighbouring power plant which produced electricity in Alberta. However, arising out of the 2015 United Nations Framework Convention on Climate Change, the government of Canada created regulations which established a performance standard for coal-fired power plants to be met by 2030. In turn, the government of Alberta entered into an “Off-Coal Agreement” with the owners of the Genessee power plant whereby the owners agreed to end emissions by 2030.

In 2018, Altius filed a statement of claim against the respondents, Canada and Alberta, alleging that they had constructively expropriated Altius’ royalty interests in the Genessee coal mine. Canada and Alberta applied for summary dismissal of the action in 2021, which came before an applications judge pre-Annapolis. The applications judge dismissed Altius’ statement of claim on the basis that neither Canada nor Alberta “acquired a beneficial interest in property or flowing from it” as required by the Canadian Pacific test^[14] and this was affirmed on appeal by a chambers judge.^[15]

Altius then appealed to the Alberta Court of Appeal, and by this time the Supreme Court of Canada had released its decision in Annapolis. Altius argued that the judges below erred because constructive expropriation does not require the acquisition of a beneficial interest – the acquisition of an advantage in respect of property was sufficient.^[16] Furthermore, Altius argued that the advantage flowing to the governments was avoided healthcare and environmental expenses.^[17] In making these arguments, Altius was putting to the test the notion that Annapolis expanded the law of constructive expropriation.

However, the Alberta Court of Appeal’s decision seems to effectively foreclose this concern. The Court found that the government’s “prediction of health and environmental benefits resulting from the reduction of greenhouse gas emissions described benefits to the public, not… an advantage flowing to the state.”^[18] The Court also emphasized that Annapolis did not change the numerous precedents in which courts have found that a generalized public benefit does not constitute an advantage flowing to the state for the purposes of constructive expropriation.^[19]

Conclusion

In considering Teal Cedar and Altius, it appears that Annapolis has not amounted to a marked departure from and expansion to the law of constructive expropriation. In the three years since Annapolis was released, it is evident that the bar for succeeding on constructive taking claims remains high and difficult to meet.

While the bar remains high, a lesson can be gleaned from Annapolis, Teal Cedar and Altius which people should be aware of when considering constructive expropriation claims. It appears fair to say that success at the first stage of the test depends at least in part on the degree of specificity of the benefit or advantage said to be acquired by the state. In this sense benefits or advantages may be understood as falling along a continuum between general and specific. The more specific a benefit or advantage the easier it will be to establish that the benefit or advantage was specifically acquired by the state. Conversely, the more general a benefit or advantage the more likely a court will find it belonging to the general public and thus be insufficient for the purposes of constructive expropriation.

[1] Expropriation Act, RSBC 1996, c. 337.
[2] Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 [“Annapolis”].
[3] Canadian Pacific Railway v. Vancouver (City), 2006 SCC 5 [“Canadian Pacific”].
[4] Canadian Pacific, at para. 30.
[5] Annapolis, at para. 4.
[6] Annapolis, at para. 38.
[7] Annapolis, at para. 85.
[8] Teal Cedar Products Ltd. v. British Columbia, 2025 BCSC 595 [“Teal Cedar”].
[9] Teal Cedar, at para. 66.
[10] Teal Cedar, at para. 66.
[11] Teal Cedar, at para. 98.
[12] Teal Cedar, at paras. 99-100.
[13] Altius Royalty Corporation v. Alberta, 2024 ABCA 105 [“Altius”].
[14] Altius Royalty Corporation v. Alberta, 2021 ABQB 3, para. 77.
[15] Altius Royalty Corporation v. Alberta, 2022 ABQB 255.
[16] Altius, at para. 13.
[17] Altius, at para. 29.
[18] Altius, at para. 32.
[19] Altius, at para. 32.

Need Help With Your Expropriation or Property Dispute Case?

Contact us today to discuss your case and explore your options for fair compensation.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

The post Has Annapolis Expanded the Law of Constructive Expropriation in BC? appeared first on McQuarrie Legal Services.

1. What is a section 3 agreement?

When the government intends to take an individual’s land pursuant to the Expropriation Act, RSBC 1996, c. 125 [the “Act”], one of the options a landowner has is to enter into a section 3 agreement. Section 3 agreements are used in situations where the landowner agrees to transfer or dedicate their land to the “expropriating authority” but cannot necessarily agree with the compensation to be paid.

When section 3 agreements are used, there is no “expropriation” in the strict sense of the word because the land is transferred by consent. Proceeding in this way can be advantageous for both landowners and expropriating authorities because it avoids the formal proceedings for expropriation under the Act while preserving an owner’s right to claim compensation within 1 year.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options if you have signed or have been asked to sign a section 3 agreement.

2. What can I do if I disagree with an amount paid to me by an expropriating authority who takes my land?

If a landowner disagrees with the compensation they received from an expropriating body, the landowner can apply to the court for a determination of the compensation to be paid. It is important for the landowner to act quickly in these circumstances as pursuant to s. 25 of the Expropriation Act, if a court application is not made within one year, the landowner is deemed to have accepted any advance payment as full and final compensation.  

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options.

3. Is an expropriating authority permitted to take my property without my consent?

The short answer is, yes. Pursuant to the Expropriation Act, RSBC 1996, c. 125, “expropriating authorities” can take an individual’s property without consent through a process called expropriation. There are a number of expropriating authorities that have the power to take an individual’s property without consent, such as municipalities, school boards, and even TransLink, to name a few.

While the procedure for expropriation is governed by the Expropriation Act, an expropriating authority’s power to expropriate comes from other legislation. For example, the City of Vancouver is given the power to expropriate pursuant to the Vancouver Charter, SBC 1953, c. 55, s. 533, while other municipalities are given the power to expropriate pursuant to the Community Charter, SBC 2003, c. 26, s. 31.

However, it is important to note that landowners do have rights when faced with an expropriation of their land. Most significantly, a landowner must be fairly compensated. Since determining the appropriate compensation is often a highly complex matter, a landowner should always consult an experienced lawyer in the area to ensure they are adequately compensated.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options.

4. How long do I have to claim additional compensation if my lands have been expropriated?

If a landowner has their land expropriated and is not satisfied with the compensation received, the landowner must act quickly. Pursuant to section 25 of the Expropriation Act, RSBC 1996, c. 125, a landowner has one year from the date of receiving payment to make an application to court and claim additional compensation. If an application is not made within one year of receiving payment, the landowner will be prevented from claiming any additional compensation.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options and ensure you do not miss your time limit to apply for additional compensation.

5. What heads of damage can I be compensated for as a result of expropriation?

There are a number of different heads of damages that a landowner can be compensated for when their land is expropriated, including, but not limited to:

• fair market value;
• disturbance damages;
• injurious affection;
• ancillary rights; and
• costs.

Fair market value of the land being expropriated is the foundation of a landowner’s compensation. The expropriating authority must pay to the landowner whatever amount the expropriated land would have sold for if it had been sold in the open market by a willing seller to a willing buyer.

Disturbance damages are all reasonable costs, expenses, and financial losses that are directly attributable to the disturbance caused to the landowner by the expropriation.

Injurious affection refers to the decrease in value of the remainder of their lands that are not expropriated in a partial taking situation.

Ancillary rights typically refer to implied rights that are deemed necessary in order to exercise express rights taken by an expropriating authority. In these circumstances, the landowner is entitled to compensation.

Finally, a landowner may entitled to compensation for legal and other costs that they incur as a result of expropriation.

As expropriation can be a highly complex and specialized area of the law, landowners faced with expropriation of their land should consult a lawyer with specific knowledge and expertise in this area to ensure they receive appropriate compensation.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss what heads of damages may be applicable in your unique situation.

Need Help With Your Expropriation or Property Dispute Case?

Contact us today to discuss your case and explore your options for fair compensation.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

The post Expropriation in British Columbia: Your Rights, Compensation, and Legal Options Explained appeared first on McQuarrie Legal Services.

Issue estoppel is a legal doctrine which can stop a legal proceeding dead in its tracks due to an issue in the legal proceeding having previously been decided by an administrative tribunal. For issue estoppel to apply, a party must establish the following preconditions:^[1]

a) The issue is the same as an issue decided in a prior “judicial decision;”
b) The prior “judicial decision” was final; and
c) The parties to the administrative tribunal proceeding and the court proceeding are the same, or their privies.

Notwithstanding the above preconditions being satisfied, the Court may still decide not to apply the doctrine of issue estoppel (thereby allowing an individual to relitigate an issue that was previously decided in an administrative tribunal hearing) if it determines relitigating the issue is in the “interest of justice.”^[2]

This article will briefly explain the preconditions that must be satisfied for the doctrine of issue estoppel to apply and when a Court will decide to exercise its discretion to not apply the doctrine of issue estoppel.  Importantly, this article relates only to the doctrine of issue estoppel as it applies to previous administrative decisions; different considerations come into play when it comes to previous court decisions.

a) The issue is the same as an issue decided in a prior “judicial decision”

The first precondition that must be satisfied for the doctrine of issue estoppel to apply is that the issue before the Court must be the same as an issue having been previously decided in a prior judicial decision. The type of “issues” which may trigger the application of the doctrine of issue estoppel are the legal conclusions and the findings of fact (and the findings of mixed fact and law) made in the previous judicial decision which were “fundamental” to the previous judicial decision. Courts have interpreted the term “fundamental” to mean necessary to arrive at the previous judicial decision.^[3]

b) The prior judicial decision is final

The second precondition that must be satisfied to trigger the application of the doctrine of issue estoppel is that the previous decision was a final judicial decision. The court will consider a prior decision to have been “judicial” when:^[4]

• The decision was made by a body capable of receiving and exercising adjudicative authority;
• The decision was required to be made in a judicial manner; and
• The decision was in fact made in a judicial manner.

A decision that is made in a “judicial manner” is a decision which is reached through making findings of fact and applying an objective legal standard to those facts.^[5]

c) The parties to both proceedings must be the same, or their privies

The third precondition that must be satisfied to trigger the application of the doctrine of issue estoppel is that the parties to the current proceeding, or their privies, must be the same as those in the previous administrative tribunal decision.^[6]

Judicial Discretion

If the court determines the three preconditions of the doctrine of issue estoppel have been satisfied, the court will then decide whether the doctrine of issue estoppel ought to be applied or whether its application will give rise to an injustice. In assessing whether the application of the doctrine of issue estoppel will amount to an injustice, the court will often consider the following factors: ^[7]

• The limits on awards that the administrative body could make;
• Whether the statute granting the administrative body authority shows legislative intent to preclude civil action;
• The purpose of the administrative proceeding, including the effect that allowing a judicial body to rehear an administrative proceeding would have on the quick and inexpensive route that most administrative proceedings aim to offer;
• The convenience of hearing all of the party’s claim in one proceeding;
• The procedural differences between the administrative body and the court (i.e. discovery or cross-examination rights);
• The availability of an appeal; and
• The circumstances giving rise to the prior administrative proceedings (e.g., whether the party was vulnerable at the time of commencing the administrative proceeding).

Conclusion

In conclusion, the doctrine of issue estoppel is a legal doctrine which may prevent an individual from bringing a lawsuit against you. The doctrine of issue estoppel is triggered when (1) the issue is the same as an issue decided in a prior “judicial decision,” (2) the “judicial decision” was final; and (3) the parties to the administrative tribunal proceeding, or their privies, and the court proceeding are the same. Notwithstanding these preconditions having been satisfied, the Court may exercise its discretion to not apply the doctrine of issue estoppel if it determines that it is in the “interests of justice” that the issue be relitigated.

Need Help With Your Legal Claim?

If you’re facing a legal dispute and need guidance on issue estoppel, tribunal decisions, or litigation strategy, our experienced team is here to help. Contact us today to discuss your case and explore your options for resolution.

[1] Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para. 23.
[2] Danyluk v. Ainsworth Technologies, 2001 SCC 44 at para. 33.
[3] Danyluk v. Ainsworth Technologies, 2001 SCC 44 at para. 24.
[4] Danyluk v. Ainsworth Technologies, 2001 SCC 44 at para. 35.
[5] Metropolitan Toronto Condominium Corp No. 1352 v. Newport Beach Development Inc., 2012 ONCA 840 (CA) at para. 4.
[6] Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para. 23.
[7] Danyluk v. Ainsworth Technologies, 2001 SCC 44 at paras. 64-81.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

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