Case information

Civil procedure — Estoppel — Whether Court of Appeal erred in application of doctrine of issue estoppel — Whether Court of Appeal erred in application of doctrine of collateral attack

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant and his brother jointly owned a residence. The respondent was their mortgagee. In 2020, the applicant’s brother became insolvent and the mortgage went into default. The respondent eventually commenced default proceedings. The applicant, represented by counsel, consented to a foreclosure order. An applications judge granted that order on December 21, 2021 and the applicant discharged his counsel. The applicant intended to redeem the mortgage through refinancing, but he was not satisfied with the terms the respondent offered. He alleged that the respondent had induced him to consent to the foreclosure order by fraudulent misrepresentation and appealed the consent order. The appeal was first dismissed by the Court of King’s Bench, and then, on May 11, 2022, the Court of Appeal denied the applicant permission to appeal, finding that the allegation of fraud was unsupported by the record.

The applicant then pursued a fresh action against the respondent, alleging a range of misconduct in relation to the foreclosure order, including abuse of process, engaging in an unconscionable transaction, and fraudulent misrepresentation. He sought damages and return of the property. The respondent applied to an applications judge for summary dismissal of the action.

The applications judge held that the applicant’s action is barred by the doctrines of res judicata and collateral attack, since it seeks to revisit issues that were raised, or ought to have been raised, in the foreclosure action. The action was summarily dismissed.

The Court of King’s Bench and Court of Appeal found no error in the application judge’s reasoning and dismissed the applicant’s appeals for substantially the same reasons.