Issue estoppel does not apply without a consideration of whether, in the specific circumstances, it is just for the doctrine to apply. Today's decision in Znamensky Selekcionno-Gibridny Center LLC v. Donaldson International Livestock Ltd., 2010 ONCA 303 makes this clear:
... Even if the preconditions to the operation of issue estoppel had been established, the court still had to determine whether, as a matter of discretion, issue estoppel ought to be applied: see Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at para. 33. The application judge was obliged to take into account the entirety of the circumstances, including the factors for and against the exercise of this discretion, to determine whether the application of issue estoppel in this case would work an injustice: Danyluk at paras. 66 and 80.
James Morton
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