T-2871-90
Chun Fai Wong, Wing Chun Li and Yiu Ting
Wong (Applicants)
v.
Minister of Employment and Immigration and the
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: WONG V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Jerome A.C.J.—Toronto, Decem-
ber 17, 1990; Ottawa, February 26, 1991.
Immigration — Court order requiring respondents to pro
cess application for permanent residence — Applicant suffer
ing from Down's syndrome and considered medically inad
missible under Immigration Act, s. 19 (l)(a)(ii) —
Psychometric testing requested — Whether requirement of
further testing could be imposed or was res judicata in view of
previous Court order — Admissibility issue still to be decided
— Determination of admissibility based on medical assess
ments — Landing cannot be granted if conditions precedent not
satisfied.
Practice — Res judicata — Immigration — Federal Court
ordering officials to process permanent residence application
— Officials requiring applicant undergo psychometric testing
— Whether requirement could be imposed in view of court
order — One of three requirements for application of res
judicata doctrine not met: different question for decision
Whether doctrine applicable in public law dispute.
This was an application for certiorari quashing the refusal by
Immigration officials to process an application for permanent
residence in Canada and for mandamus directing the respond
ents to consider and process said application in accordance with
the Immigration Act and Immigration Regulations, 1978.
Having sought permanent residence in Canada, the applicants
were advised by the Canadian Consulate General in San Fran-
cisco that immigration visas could not be issued because their
son was medically inadmissible to Canada under subparagraph
19(1)(a)(ii) of the Immigration Act due to the fact that he was
suffering from Down's syndrome. It was said that his admission
would cause excessive demands on Canadian health or social
services not by reason of his mental retardation but because he
would probably develop Alzheimer's disease. A Federal Court
order was issued on November 22, 1989, quashing the decision
and forcing the respondents to consider and process the perma
nent residence application. Subsequent to another medical
examination of the boy, psychometric testing was requested.
The applicants objected to this on the basis of the Federal
Court judgment. The Canadian Consulate General repeated
that request, saying that the original medical report was out-
dated and advising that if the information was not provided
within a reasonable time, the application would be refused.
The applicants submitted that the November 22, 1989 order
subsumed all matters concerning the refusal of the application
for permanent residence so that the requirement of further
medical testing could not be imposed, the issue being res
judicata. The respondents replied that psychometric testing
would enable the medical officers to assess the boy's admissibil
ity according to the specific terms of the order, adding that the
medical information on him was out of date and that it was
difficult to determine with accuracy the degree of mental
retardation of a child less than five years old. They also pointed
out that the doctrine of res judicata applies only where there
was an adjudication on the merits in the previous action and an
identity of issues in both actions; the issue raised in the order of
November 22, 1989 was whether the immigration officials'
refusal was lawful while the issue in the present motion was
whether the request for psychometric testing was valid and
reasonable.
Held, the application should be dismissed.
The issue was whether the Court order of November 22,
1989 precluded further consideration of medical evidence,
specifically psychometric testing, with respect to the boy's
admissibility into Canada. As to the application for certiorari,
the immigration officials' decision and the medical evidence
indicated that the finding of inadmissibility under subpara-
graph 19(1)(a)(ii) was based on a purported connection be
tween Down's syndrome and Alzheimer's disease. The previous
Court order was the result of an application, not of an action or
a trial, and it did not take into account matters not raised in the
application. In addition, the order did not state that the entire
medical assessment issue was resolved in favour of the appli
cants or that further medical assessment, including mental
assessment, was not required; it quashed the decision on the
basis of the invalid connection between Down's syndrome and
Alzheimer's disease and did not resolve the broader issue of
admissibility under subparagraph 19(1)(a)(ii).
With respect to the application for mandamus, there is some
authority for the proposition that the Court could, within the
accepted limits of its jurisdiction, circumscribe a public offi
cer's discretion by indicating what factors should or should not
be considered; the previous Court order had not limited the
factors to be considered in this instance. The Court could not
make an order directing the respondents to grant landing if the
conditions precedent to this right have not been satisfied. Under
sections 19 and 11 of the Immigration Act, the admissibility of
a person must be determined on the basis inter alia of medical
assessments, including mental assessments, made by a medical
officer upon considering the factors outlined in section 22 of the
Regulations. The Court order simply directed the respondents
to continue to consider and process the application and deter-
mine whether landing should be granted in accordance with the
Act and Regulations.
As to the application of the res judicata doctrine, three
conditions are required: 1. the same question has been decided;
2. the previous judicial decision is final and 3. the parties to the
proceedings must be identical. In the present case, the second
and third requirements to create an estoppel are met but the
question to be addressed in this proceeding is not the same as
that contested before McNair J. The issue of res judicata could
not therefore be invoked. Finally, there is considerable doubt
whether estoppel of record, or per rem judicatam, applies in
this area of public law in the way that it could in a private
dispute.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, RR. 355, 1906.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 8(1), 9(3),
11(1),(2),(3), 19(1)(a)(ii),(2)(d)•
Immigration Regulations, 1978, SOR/78-172, s. 22 (as
am. by SOR/78-316, s. 2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294;
[1948] O.W.N. 17 (C.A.); Jhammat v. Canada (Minister
of Employment and Immigration) (1988), 6 Imm. L.R.
(2d) 166 (F.C.T.D.); Re Knowles, [1938] O.R. 369;
[1938] 3 D.L.R. 178 (C.A.).
CONSIDERED:
Poizer et al. v. Ward, [1947] 4 D.L.R. 316; [1947] 2
W.W.R. 193; (1947), 55 Man. R. 214 (C.A.).
REFERRED TO:
Calder v. Cleland, [1971] 1 O.R. 667; (1971), 16 D.L.R.
(3d) 369 (C.A.); Pure Spring Co. Ltd. v. Minister of
National Revenue, [1946] Ex.C.R. 471; [1947] 1 D.L.R.
501; [1946] C.T.C. 171; Fahlman v. Law Soc. of Alta.,
[1982] 6 W.W.R. 75; 21 Alta. L.R. (2d) 297 (Q.B.);
Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47 D.L.R.
(3d) 544; 74 DTC 6278; 2 N.R. 397; Rans Construction
(1966) Ltd. v. Canada, [1988] 1 F.C. 526; [1987] 2
C.T.C. 206; (1987), 87 DTC 5415; 16 F.T.R. 73 (T.D.);
Carl-Zeiss-Stiftung v. Rayner and Keeler, Ltd. (No. 2),
[1966] 2 All E.R. 536 (H.L.); Hoystead v. Commissioner
of Taxation, [1926] A.C. 155 (P.C.).
AUTHORS CITED
Reid, Robert F. and David, Hillel Administrative Law
and Practice 2nd ed., Toronto: Butterworths, 1978.
COUNSEL:
Cecil L. Rotenberg, Q.C., for applicants.
Marie-Louise Wcislo for respondents.
SOLICITORS:
Rotenberg, Martinello, Austin, Toronto, for
applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application came on for
hearing at Toronto, Ontario on December 17,
1990. By notice of motion dated October 24, 1990
the applicants seek:
1. An order for a writ of certiorari quashing the
decision of the Immigration officials of the
Canadian Consulate General in San Francisco,
U.S.A. on the staff of the respondent, Secretary of
State for External Affairs, refusing to process the
application for permanent residence in Canada of
Chun Fai Wong, Wing Chun Li and Yiu Ting
Wong unless the applicant, Yiu Ting Wong, sub
mits to psychological/psychiatric assessment; and
2. An order for a writ of mandamus directing the
respondents to consider and process the application
for permanent residence in accordance with the
Immigration Act 1976 [S.C. 1976-77, c. 52] and
the Immigration Regulations, 1978 [SOR/78-172]
and to determine, without the requirement for
psychological/psychiatric assessment of the appli
cant, Yiu Ting Wong, whether landing should be
granted to Chun Fai Wong, Wing Chun Li and
Yiu Ting Wong.
FACTS
The applicants currently live in Hong Kong. In
December, 1986 they made an application for
permanent residence in Canada (the "applica-
tion"). In a letter dated November 27, 1987 from
Mr. Brian T. Casey of the Canadian Consulate
General in San Francisco, the applicants were
advised that immigration visas could not be issued
due to the fact that their son, Yiu Ting Wong, who
suffers from Down's syndrome, was medically
inadmissible to Canada under subparagraph
19(1)(a)(ii) of the Immigration Act [now R.S.C.,
1985, c. I-2] (the "Act"). The letter indicated
that:
In reaching this conclusion our medical officers took into
account sections 22(e)(i) and 22(g) of the Immigration Regula
tions 1978. They note that persons with Down's Syndrome have
limited intellectual capacity, which affects their employability,
and they tend to develop Alzheimer's disease at an earlier age
than others. On the basis of this and the medical reports they
have received, our medical officers consider that your daughter
[sic] ... has a condition which would cause excessive demands
on health or social services and which is not likely to respond to
treatment ...
This decision was based on information provided
to the Canadian Consulate General in San Fran-
cisco by Dr. M.J. Ferrari, medical officer, Health
& Welfare Canada, in a telex dated November 3,
1987 sent:
IMM REGULATIONS SECTION R.22(e)(i) & (g) APPLY
PERSONS WITH DOWN'S SYNDROME HAVE LIM
ITED INTELLECTUAL CAPACITY AFFECTING
EMPLOYABILITY
ALSO TEND TO DEVELOP ALZHEIMER'S AT AN EAR
LIER AGE THAN OTHERS.
The applicants brought a motion pursuant to
section 18 of the Federal Court Act [R.S.C., 1985,
c. F-7] [see Court file T-237-89] to quash the
decision of November 27, 1987 and to direct the
respondents to consider and process the application
in accordance with the Act and Regulations. In
response to this motion, the respondents filed an
affidavit of Dr. Ferrari, sworn April 4, 1989,
wherein she stated inter alia that her opinion that
Yiu Ting Wong's admission would cause excessive
demands on Canadian social services was based
upon the probability that he would develop Alz-
heimer's disease and not on the basis of his mental
retardation. The applicants also filed affidavits of
Dr. H.J. Karlinsky dated August 10 and Septem-
ber 13, 1989 which challenged the view that
individuals with Down's syndrome universally de
velop Alzheimer's disease.
Counsel for the applicants and the respondents
appeared before Mr. Justice McNair on Novem-
ber 20, 1989. Upon his direction, an order was
drafted by the applicants and "approved as to
content" by the respondents. The order was issued
on November 22, 1989 as follows:
(i) the decision of the immigration officials of the Canadian
Consulate in San Francisco, U.S.A. on the staff of the respond
ent, Secretary of State for External Affairs, in which the
application for permanent residence in Canada of Chun Fai
Wong, Wing Chun Li and Yiu Ting Wong was refused is
quashed;
(ii) the respondents shall consider and process the application
for permanent residence of Chun Fai Wong, Wing Chun Li and
Yiu Ting Wong in accordance with the Immigration Act,
Immigration Regulations and the law, and
(iii) the respondents shall determine in accordance with the
law, whether or not it would be contrary to the said Immigra
tion Act, Immigration Regulations and the law to grant landing
to Chun Fai Wong, Wing Chun Li and Yiu Ting Wong;
(iv) the applicants shall be awarded costs.
Subsequent to the order, Yiu Ting Wong under
went another medical examination in Toronto on
April 24, 1990. The medical report provided by
Dr. Kline indicated that Yiu Ting Wong suffered
from Down's syndrome and mental retardation,
that he displayed mental and genetic or familial
disorders, and that he had a mental development
of "below normal". By letter dated August 15,
1990 Dr. Ferrari requested that Dr. Kline make
arrangements to provide a full report of psychom-
etric testing. Counsel for the applicants objected to
this request on September 4, 1990 submitting that
the Down's syndrome condition of the child "is a
non-issue in view of the Federal Court judgment".
Counsel stated:
If updated background reports are satisfactory, and if updated
medical reports in respect of the family are also satisfactory,
with the exception only of the Down's Syndrome, then we
believe that all requirements for immigration to Canada have
been met by this family and that visas should be issued
forthwith.
Mr. Brian Casey of the Canadian Consulate
General repeated the request for psychometric
testing in a letter dated September 19, 1990. He
indicated that "[a]lthough similar information
would have been submitted with the original medi
cal report, that information requires updating
because it is now more than 3 years old and
significant changes may have taken place since
then". He advised that "[i]f the information is not
provided within a reasonable period of time we
would have no choice but to refuse the application
under subsection 9(3) and paragraph 19(2)(d) of
the Act."
The applicants have brought this motion seeking
to quash the request for psychometric testing and
to direct the respondents to consider and process
the application in accordance with the Act and
Regulations, without the requirement for psycho-
logical/psychiatric assessment of Yiu Ting Wong.
ARGUMENT
The applicants submit that the order of Mr.
Justice McNair dated November 22, 1989 (the
"order") subsumes all matters that were argued or
could have been argued with respect to the refusal
of the application for permanent residence dated
November 27, 1987. The refusal quashed by the
order was based on the ground that the dependant
son came within subparagraph 19(1)(a)(ii) as he
has a condition which will cause or may reason
ably be expected to cause excessive demands on
health and social services. The applicants submit
that the order precludes the respondents from
proceeding to further examine on the issue of
medical, refusal. The decision to submit Yiu Ting
Wong to further medical testing, therefore, is a
determination on an issue that is res judicata. The
applicants also state that the order was not on
consent and that, in any event, this would not
affect the fact that the request for psychometric
testing was rendered res judicata by the order.
The respondents argue that the request for
psychometric tests will enable the medical officers
to assess the admissibility of Yiu Ting Wong and
that it is in accordance with the specific terms of
the order. The Act provides that every immigrant
shall undergo a "medical examination" which
includes a "mental examination". The Regulations
prescribe the factors that a medical officer must
consider in determining whether the admission of a
person would or might reasonably be expected to
cause excessive demands on health or social ser
vices. These factors include the nature, severity
and possible duration of any disability or other
health impairment from which the person is suffer
ing. The respondents state that the medical infor
mation concerning Yiu Ting Wong is out of date
and that it is difficult to determine with accuracy
the degree of mental retardation in a child less
than five years of age [Yiu Ting Wong was 2
and 4 years old when he was initially examined in
1984 and 1986 respectively]. Therefore, psychom-
etric tests are required to enable a current and
complete evaluation to be made of the degree and
severity of Yiu Ting Wong's mental condition. The
respondents submit that, based on the information
presently available, Dr. Ferrari will not be able to
make a valid and complete conclusion on his medi
cal admissibility. The visa officer then will not be
able to make a proper decision on the application
in accordance with the requirements of the Act
and Regulations. Therefore, because the request is
a necessary part of the process of determining
whether to grant landing to the applicants, it is
reasonable, justified and in accordance with the
order.
The respondents submit that the doctrine of res
judicata only applies where there is an adjudica
tion on the merits in the previous action and an
identity of issues in both actions. Since the order
was on consent and did not result from an adjudi
cation on the merits, they refer to the comments of
Lacourcière, J. in Calder v. Cleland, [1971] 1
O.R. 667 (C.A.), at page 668:
I am unable to accept the defendant's submission that estop-
pel, based on the consent judgment for possession, constitutes a
full defence to this action. After the divorce, the wife, through
her solicitor, consented to a judgment granting possession of the
property to her husband. Clearly this consent could not deter
mine the matter of title and cannot be conclusive in any way.
The respondents submit that the refusal was based
solely on the purported connection between
Down's syndrome and Alzheimer's disease. Thus,
the order simply negates the refusal on this basis
and is only effective to this extent. They also point
out that the issue before Mr. Justice McNair was
whether the refusal of November 27, 1987 was
lawful and the issue in the present motion is
whether the request for psychometric testing of
Yiu Ting Wong is a valid and reasonable request
in the course of evaluating the application for
permanent residence to determine whether to
grant landing.
LAW
The statutory provisions relevant to this motion
are subsections 8(1), 11(1), 11(2) and 11(3), and
subparagraph 19(1)(a)(ii) of the Act and section
22 [as am. by SOR/78-316, s. 2] of the
Regulations:
8. (1) Where a person seeks to come into Canada, the burden
of proving that that person has a right to come into Canada or
that his admission would not be contrary to this Act or the
regulations rests on that person.
11. (1) Every immigrant and every visitor of a prescribed class
shall undergo a medical examination by a medical officer.
(2) Every visitor and every person in possession of a permit
who, in the opinion of an immigration officer or adjudicator,
may be a member of the inadmissible class described in para
graph 19(1)(a) may be required by the immigration officer or
adjudicator to undergo a medical examination by a medical
officer.
(3) For the purposes of this section, medical examination
includes a mental examination, a physical examination and a
medical assessment of records respecting a person.
19. (1) No person shall be granted admission who is a member
of any of the following classes:
(a) persons who are suffering from any disease, disorder,
disability or other health impairment as a result of the
nature, severity or probable duration of which, in the opinion
of a medical officer concurred in by at least one other
medical officer,
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services.
22. For the purpose of determining ... whether the admission
of any person would cause or might reasonably be expected to
cause excessive demands on health or social services, the follow
ing factors shall be considered by a medical officer in relation
to the nature, severity or probable duration of any disease,
disorder, disability or other health impairment from which the
person is suffering, namely,
(a) any reports made by a medical practitioner with respect
to that person;
(e) whether the supply of health or social services that the
person may require in Canada is limited to such an extent
that
(i) the use of such services by the person might reasonably
be expected to prevent or delay provision of those services
to Canadian citizens or permanent residents; or
(ii) the use of such services may not be available or
accessible to the person;
(/) whether medical care or hospitalization is required;
(g) whether potential employability or productivity is affect
ed; and
(h) whether prompt and effective medical treatment can be
provided.
ANALYSIS
The applicants contend that, by the doctrine of
res judicata, the psychometric testing of Yiu Ting
Wong is prohibited. There is no allegation here of
contempt under Rule 355 [Federal Court Rules,
C.R.C., c. 663] or of non-compliance with an
order of mandamus under Rule 1906. This
application seeks rather to quash the decision to
request psychometric testing of Yiu Ting Wong
and to direct the respondents to process the
application in accordance with the Act and Regu
lations without such tests. Nevertheless, the basis
of the application is that psychometric testing does
not comply with the order, that it is not in accord
ance with the Act and Regulations, and that
indeed, by the doctrine of res judicata, it is
prohibited.
The issue then is whether the order of Mr.
Justice McNair precludes further consideration of
medical evidence, specifically psychometric test
ing, with respect to Yiu Ting Wong's admissibility
into Canada.
1. Order of certiorari quashing the decision of
November 27, 1987.
The decision of November 27, 1987 and the
evidence of Dr. Ferrari indicates that Yiu Ting
Wong was found to be inadmissible under sub-
paragraph 19(1)(a)(ii) because of the purported
connection between Down's syndrome and Alz-
heimer's disease. The affidavit evidence of Dr.
Karlinsky dealt specifically with the question of
whether this connection was valid. It therefore
appears that the specific issue addressed in Court
file T-237-89 was whether this connection ren
dered the decision invalid. It is also important to
note that the order was the result of an application
and not the result of an action or a trial. There
fore, contrary to the applicants' assertions, the
order does not take into account matters not raised
in the application, i.e. those that the applicants
submit should have been or logically could have
been dealt with at the time. In addition, the order
simply does not state that the entire medical
assessment issue was resolved in favour of the
applicants or that further medical assessment,
including mental assessment, is not required. I
conclude then that the order quashed the decision
based on the invalid connection between Down's
syndrome and Alzheimer's disease and that it did
not resolve the broader issue of the admissibility of
Yiu Ting Wong under subparagraph 19(1)(a)(ii).
2. Order of mandamus directing the respondents
to consider and process the application and to
determine whether the grant of landing would
be contrary to the Act and Regulations.
In Poizer et al. v. Ward, [1947] 4 D.L.R. 316
(Man. C.A.), Mr. Justice Bergman considered the
nature of a mandamus order. Referring inter alia
to the comments of Mr. Justice Thorson in Pure
Spring Co. Ltd. v. Minister of National Revenue,
[1946] Ex.C.R. 471, he determined that [at page
324]:
Speaking generally, while mandamus lies to compel the exercise
of a discretion, the Court has no power to compel the exercise
of a discretion in a particular way: 7 C.E.D. (Ont.), p. 130;
Holmestead & Langton, 5th ed., p. 75; 9 Hals., 2nd ed., p. 764;
38 Corp. Jur., p. 593; R. v. Army Council, [1917] 2 K.B. 504 at
p. 510. This rule is stated concisely in Short & Mellor's Crown
Practice, 2nd ed., p. 212, as follows: "A mandamus is never
granted directing an act to be performed in a particular
manner, not expressly required by law. A mandamus goes to set
a tribunal in motion, but not to prescribe the way in which they
shall do any particular act." [Emphasis added.]
Similarly, I note that in Robert F. Reid and Hillel
David's, Administrative Law and Practice, 2nd ed.
(Toronto: Butterworths, 1978), the learned
authors have stated at page 403 that:
Mandamus lies to compel the performance of a public duty,
but, where the duty involves the exercise of discretion, not so as
to compel a particular result.
There is some authority for the proposition that
the Court could, within the accepted limits of its
jurisdiction, circumscribe a public officer's discre
tion by indicating what factors should or should
not be considered; Fahlman v. Law Soc. of Alta.,
[1982] 6 W.W.R. 75 (Q.B.), at page 82. Assuming
then that Mr. Justice McNair could have limited
the factors to be considered in this instance, it is
clear that he did not do so.
In Karavos v. Toronto & Gillies, [1948] 3
D.L.R. 294, at page 300, Laidlaw, J.A. for the
Ontario Court of Appeal, allowed the appeal from
an order by way of mandamus directing a munic
ipal building inspector to issue a permit to the
appellant, stating:
Mandamus does not lie against the Inspector of Buildings to
do an act prohibited by law, and it cannot be presumed that the
conditions precedent to his right and duty to issue a permit
have been satisfied.
Similarly, here, the Court could not make an order
directing the respondents to grant landing if the
conditions precedent to this right have not been
satisfied. Section 19 clearly states that the admis
sibility of a person must be determined. This deter
mination will be based inter alia on medical
assessments, including mental assessments, under
section 11 made by a medical officer upon consid
ering the factors outlined in section 22 of the
Regulations. Section 8 imposes a burden on the
applicant to demonstrate that his or her admission
would not be contrary to the Act or Regulations
and the order of Mr. Justice McNair in this
instance does not operate to reverse or dispense
with that burden.
In my opinion then, the order simply quashed
the refusal based on the invalid connection be
tween Down's syndrome and Alzheimer's disease
and directed the respondents to continue to consid
er and process the application and determine
whether landing should be granted in accordance
with the Act and Regulations. Even if the order
could have had a broader effect, I find that it does
not.
In my opinion then, this is sufficient to conclude
the matter. However, the applicants have delivered
extensive argument on the issue of whether the
decision to request psychometric testing is res
judicata and that deserves comment.
RES JUDICATA
The doctrine of res judicata is a form of estop-
pel and derives from the principle that no court
shall try any suit or issue if the same matters in
issue have been heard and finally decided in a suit
between the same parties before a Court, com
petent to try such suit. It is a fundamental doctrine
requiring that there be an end to litigation.
Estoppel per rem judicatam has two species:
cause of action estoppel and issue estoppel. There
are three elements of the issue estoppel species of
res judicata: 1. the same question has been decid
ed; 2. the previous judicial decision is final; and 3.
the parties to the proceedings must be identical:
Angle v. M.N.R., [1975] 2 S.C.R. 248, at pages
254-255; Rans Construction (1966) Ltd. v.
Canada, [1988] 1 F.C. 526 (T.D.), at page 529;
Carl-Zeiss-Stiftung v. Rayner and Keeler, Ltd.
(No. 2), [1966] 2 All E.R. 536 (H.L.), at page
550.
Here, the second and third requirements to
create an estoppel are clearly met. The parties to
this proceeding and the proceeding before Mr.
Justice McNair, are the same and the order dated
November 22, 1989 is a final "judicial decision."
However, the dispute is whether the question to be
addressed in this proceeding is the same as that
contested before Mr. Justice McNair. The ques
tion out of which the estoppel is said to arise must
have been "fundamental to the decision arrived at"
in the earlier proceedings: Dickson J. [as he then
was] in Angle at pages 255-256 per Lord Shaw in
Hoystead v. Commissioner of Taxation, [1926]
A.C. 155 (P.C.). If not, there is no estoppel.
I find that the issues are not the same, and
based on the reasoning of Masten J.A. in Re
Knowles, [1938] O.R. 369 (C.A.), at pages 384-
385, the resolution of this broader issue should not
be considered to have been concluded in the earlier
proceeding:
In the present case, the question of the respondent's rights to
receive the residue was so distinctly raised by the originating
notice and so distinctly dealt with by the order of Sedgewick J.
that it is impossible for this Court to do otherwise than hold
that the appellant is estopped. But in the case of vague applica
tions instituted by way of originating notice, this doctrine of
estoppel ought to be applied with extreme caution, particularly
where the application is brought by executors and trustees for
advice, so that questions which were not specifically in issue
and are not definitely raised and were not really in the contem
plation of the parties, may not be held thereafter to be conclud
ed. [Emphasis added.]
Finally, Mr. Justice Muldoon in Jhammat v.
Canada (Minister of Employment and Immigra
tion) (1988), 6 Imm. L.R. (2d) 166 (F.C.T.D.)
raised the question of whether res judicata would
apply to a proceeding of this nature. In Jhammat,
a visa officer had denied the application for per
manent residence of the applicant's spouse because
the validity of the marriage was in dispute. This
denial was subsequent to an Immigration Board
ruling that the applicant and her spouse had a
valid marriage which was based on the respond
ent's counsel's concession that the marriage was
valid. An application was brought to require the
Minister to process the application for landing of
the applicant's spouse on the ground that "the
respondent is estopped from raising other issues
questioning the validity of the applicant's marriage
when it had already been conceded by the respond
ent at a hearing before the Immigration Appeal
Board."
Mr. Justice Muldoon recognized that the appli
cant was raising estoppel of record, or per rem
judicatam, and upon reviewing the statute creat
ing the Immigration Appeal Board, he determined
that the Board was a genuine "court of record"
and that its decision, not having been appealed,
was final. He questioned, however, whether the
decision of the Board could be res judicata for the
purpose of the motion in that it involved an issue
of public law and not "private adversaries disput
ing a matter of private law":
If the litigants here were two private adversaries disputing a
matter of private law the Court would not hesitate to rule that
the Board's decision ... constituted a complete estoppel per
rem judicatam of the refusal to approve [the spouse's] applica
tion by the Crown servant.
There is, therefore, considerable doubt whether
the doctrine argued on behalf of the applicant
applies in this area of public law in the way that it
could in a private dispute. In any event, even if it
could, I have already determined that the prior
order did not adjudicate any issues beyond that of
setting aside the earlier refusal and directing that
the respondents process the application in accord
ance with the Act and Regulations.
This application must therefore be dismissed. I
would not propose to order costs against the appli
cants in the absence of further oral representations
to that effect.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.