In a recent ruling, Bronson v. Tompkins Ranching Ltd. ,
2013 BCCA 477, the British Columbia Court of Appeal addressed one
of the more difficult questions that can emerge from the
application of the doctrines of res judicata and abuse of
It is clear that, depending on the facts at issue, both res
judicata and abuse of process can be used in a second action to
prevent a person (Party A) — who was a party to a first
action — from re-litigating issues of fact or law which were
conclusively determined in that first action. More
Res Judicata: A second person (Party B) who was a party
to both the first and second actions can use the doctrine of res
judicata (either issue estoppel or cause of action estoppel) to
prevent Party A from re-litigating matters that were settled in the
first action (to which Party A was a party).
Abuse of Process: Alternatively, Party C — i.e., a
person who is a party to the second action, but was not involved in
the first action — can rely on the abuse of process doctrine
to prevent Party A from re-litigating matters that were settled in
the first action (to which Party A was a party).
The question raised in Bronson is different. The BCCA was
asked whether a person (Party B) who was a party to both
proceedings can raise the doctrine of abuse of process to prevent a
party to the second action (Party A) from re-litigating matters
settled in the first action when Party A was not a party to the
first action. In other words, can a stranger to litigation
(i.e., the first action) be bound by findings of fact made in that
first action in circumstances where the stranger becomes a party to
later, related litigation?
The facts underlying the Bronson dispute flowed from an alleged
breach of trust:
At the trial of the first action, the beneficiaries of a trust
successfully sued the trustee for a breach of trust relating to the
trustee's sale of shares to a third party. The trial
judge in the first action made findings of fact, including findings
that the shares had been sold without the consent of a co-trustee
and had been sold at a price below their true value.
In the second action, the beneficiaries sued the third
party who had purchased the shares from the trustee. The
beneficiaries argued that — despite not being a party to the
first action — the third party purchaser should be forbidden
from attempting to re-litigate the first trial judge's findings
that the shares had been sold improperly and at an
The trial judge in the second action correctly
noted the lack of precedent addressing this issue, and ultimately
rejected the argument that a stranger to the first action could be
bound by a finding of fact in that first action. (Only if the
stranger was in a relationship of privity with a party to the first
action, or was otherwise in a position to affect the first action,
or had had the ability to participate in the first action, or
perhaps if the stranger had been the plaintiff in the second
action, might the doctrine of res judicata or abuse of process be
The Court of Appeal affirmed the trial judge's ruling, but
— arguably — adopted a less definitive approach.
While agreeing that it was open to the trial judge to permit the
stranger to the first action to re-argue issues of fact settled in
that first action, the BCCA did not explicitly rule that the
application of the abuse of process doctrine could never be used to
prevent re-litigation by a true stranger to the first action.
Ultimately, and perhaps regrettably, the Court of Appeal did not
need to determine this issue. Between the date of the trial
and the appeal of the second action, the Court of Appeal had
overturned the trial ruling in the first action. As such, the
findings of fact — made by the trial judge in the first
action — no longer existed, and neither abuse of process nor
res judicata could apply.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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