Machin et al. v. Tomlinson [Indexed as: Machin v. Tomlinson]

51 O.R. (3d) 566

[2000] O.J. No. 4338

Docket No. C33596

Court of Appeal for Ontario

Finlayson, Weiler and Goudge JJ.A.

November 20, 2000

Actions -- Bars -- Issue estoppel -- Insured disputing termination of his statutory accident benefits by insurer and electing to have arbitrator determine his entitlement to continue receiving statutory accident benefits -- Arbitrator finding that insured's health problems not caused by accident and that insured did not have right to continue receiving statutory accident benefits -- Arbitrator's findings as to cause of insured's health problems not binding in insured's personal injury action -- Defendant in that action was not privy to insured's dispute with his insurer.

After the plaintiff's motor vehicle was struck from behind by that of the defendant, the plaintiff received statutory accident benefits ("SABs") from his insurer. The insurer discontinued payment. The plaintiff disputed the termination of his SABs and elected to have an arbitrator decide whether he was entitled to continue to receive SABs from the insurer. The defendant did not participate in the arbitration because the statutory scheme did not provide for such participation. The arbitrator found that the majority of the plaintiff's health problems were not caused by the accident and that, consequently, he did not have a right to continue to receive SABs. In the plaintiff's personal injury action, the defendant submitted that the arbitrator's findings of fact concerning the cause of the plaintiff's health problems were binding upon the plaintiff in any subsequent proceeding and that the plaintiff was estopped from relitigating any of the findings of fact made by the arbitrator respecting the cause of his injuries. The trial judge reviewed the three requirements for issue estoppel: that the same question has been decided; that the judicial decision which is said to create the estoppel is final; and that the same parties or their privies participated in the earlier litigation. He held that all of those requirements were met in this case. With respect to the requirement of privity, he held that the defendant had an interest in the plaintiff's dispute with his insurer and was a privy because if the plaintiff was successful in his tort action, the amount of any SABs received by the plaintiff would be credited against the amount the defendant would have to pay. Accordingly, he held that the defendant had a privity of interest with the insurer. The action was dismissed. The plaintiff appealed.

Held, the appeal should be allowed.

The third requirement for issue estoppel was not met because the defendant was not a privy to the plaintiff's dispute with his insurer. The statutory scheme (contained in ss. 279 to 283 of the Insurance Act, R.S.O. 1990, c. I.8) permitted the plaintiff to bring two separate and distinct alternative proceedings. Issue estoppel is a common law rule of public policy that balances the right of a plaintiff to litigate an issue against the court's concern as to duplication of process, use of its limited facilities, conflicting findings of fact, and achievement of justice between the litigants. These policy concerns do not appear to apply to the situation in which the legislature has specifically provided claimants with the option of having their dispute resolved through arbitration or through a court action. Moreover, if the legislature had intended that a claimant should be bound by the arbitration proceedings, it could have used specific language to that effect. Injecting issue estoppel into arbitrati on concerning SABs would greatly raise the stakes, would lead to third parties seeking to make representations to the arbitrator, would needlessly complicate and prolong the proceedings, and would result in few, or fewer, applicants proceeding to arbitration. The statutory scheme did not support a finding that issue estoppel applied.

Recent case law of the Ontario Court of Appeal suggests that in order for the privity requirement to be met, the defendant must have the opportunity to participate in the proceedings before the arbitrator. This "due process" option was not available to the defendant.

The plaintiff's insurer did not have a sufficient identity of interest with the defendant. The fact that the statutory scheme requires a claimant to give credit for the amount of his SABs in a subsequent civil action against the tortfeasor does not give the tortfeasor an interest in the dispute between the claimant and his own insurer concerning the claimant's entitlement to SABs. It is simply an accounting mechanism to ensure that an insured person does not recover from both his own insurer and the third party insurer for the same damages. Even if it could be said that the defendant had some interest in the outcome of the arbitration, it was not a sufficient degree of interest to make it just to find him a privy to the plaintiff's insurer.

APPEAL from a judgment of Archibald J. (1999), 1999 ON SC 19938, 46 O.R. (3d) 550, 42 C.P.C. (4th) 58, 3 M.V.R. (4th) 18 (S.C.J.) dismissing an action for damages for personal injuries.

Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2), [1966] 2 All E.R. 536, [1967] 1 A.C. 853, [1966] 3 W.L.R. 125, 110 Sol. Jo. 425, [1967] R.P.C. 497 (H.L.); Gleeson v. J. Wippell & Co. Ltd., [1977] 3 All E.R. 54, [1977] 1 W.L.R. 510, 121 Sol. Jo. 157 (Ch.); Minott v. O'Shanter Development Co. (1999), 1999 ON CA 3686, 42 O.R. (3d) 321, 168 D.L.R. (4th) 270, 40 C.C.E.L. (2d) 1, 99 C.L.L.C. 210-013 (C.A.); Rasanen v. Rosemount Instruments Ltd. (1994), 1994 ON CA 608, 17 O.R. (3d) 267, 112 D.L.R. (4th) 683, 1 C.C.E.L. (2d) 161, 94 C.L.L.C. 14,024 (C.A.) [Leave to appeal to S.C.C. refused (1994), 19 O.R. (3d) xvi, 7 C.C.E.L. (2d) 40n, 178 N.R. 80n], consd Other cases referred to 420093 B.C. Ltd. v. Bank of Montreal (1995), 1995 AB CA 6246, 34 Alta. L.R. (3d) 269, 128 D.L.R. (4th) 488, [1996] 1 W.W.R. 561 (C.A.); Angle v. Minister of National Revenue, 1974 SCC 168, [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544, 2 N.R. 397, 74 D.T.C. 6278; Bank of Montreal v. Mitchell (1997), 1997 ON CA 14484, 151 D.L.R. (4th) 574 (Ont. C.A.), affg (1997), 1997 ON SC 12306, 143 D.L.R. (4th) 697, 25 O.T.C. 344 (Gen. Div.); Guay v. Dennehy (1994), 1994 MB QB 16669, 93 Man. R. (2d) 94, [1994] 5 W.W.R. 738 (Q.B.); McIntosh v. Parent (1924), 1924 ON CA 401, 55 O.L.R. 552, [1924] 4 D.L.R. 420 (C.A.); Scintilore Explorations Ltd. v. Larche (1999), 1999 ON SC 14948, 48 B.L.R. (2d) 248 (Ont. S.C.J.); Vijeyekumar v. State Farm Mutual Automobile Insurance Co. (1999), 1999 ON CA 1640, 44 O.R. (3d) 545, 175 D.L.R. (4th) 154, [1999] I.L.R. 1-3726, 44 M.V.R. (3d) 280 (C.A.), affg (1998), 1998 ON SC 14669, 38 O.R. (3d) 590, [1998] I.L.R. 1-3592, 37 M.V.R. (3d) 105 (Gen. Div.) [Leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 438] Statutes referred to Arbitration Act, S.O. 1991, c. 17 Employment Standards Act, R.S.O. 1990, c. E.14 Family Law Act, R.S.O. 1990, c. F.3 Insurance Act, R.S.O. 1990, c. I.8, ss. 266(1), 267(1)(a), 279-283 Authorities referred to Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), p. 1088 Spencer Bower and Turner, The Doctrine of Res Judicata, 2d ed. (London: Butterworths & Co., 1969)

Myron L. Sidenberg, Q.C., for appellants. Alan L. Rachlin, for respondent.

The judgment of the court was delivered by

WEILER J.A.: --

Overview

[1] Statutory Accident Benefits (SABs) are those benefits that a person who is injured in an accident is entitled, by statute, to receive from his or her own automobile insurance company. An insurer may refuse to pay the insured's claim for SABs on the basis that the insured's injuries were not caused by the accident. If the dispute over entitlement to SABs is not resolved between the claimant and the insurance company, the insured may elect to have an arbitrator decide the matter. The question on this appeal is whether the findings of the arbitrator as to the cause of a claimant's injuries, in an arbitration between a claimant and his own insurer for SABs, are binding in a subsequent action for damages between the claimant and a third party. If the answer to this question is yes, then the claimant is estopped from litigating the cause of his injuries in his subsequent action for damages against the third party.

[2] Resolution of this issue turns on the application of issue estoppel to the particular facts of the case. As Middleton J.A. explained with respect to issue estoppel in McIntosh v. Parent (1924), 1924 ON CA 401, 55 O.L.R. 552, [1924] 4 D.L.R. 420 at p. 422 (C.A.):

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action.

In order to answer the question of whether issue estoppel applies, my decision will focus on whether the third party is a privy to the claimant's insurance company. A summary of the facts, the decision at first instance, my conclusion and analysis follow.

1. Summary of the facts

[3] The appellant Eduardo Machin was the driver of an automobile that was struck from behind by the respondent Peter C. Tomlinson's vehicle on November 3, 1993. Mr. Machin received SABs from his own insurer for approximately two-and-a-half years after the accident but, after that, the insurer refused to continue paying benefits. Mr. Machin disputed the termination of his SABs and after mediation failed to resolve the dispute, he elected to have an arbitrator decide whether he was entitled to continue receiving SABs from his insurer. Mr. Tomlinson did not participate in the arbitration because the statutory scheme, which I will discuss in greater detail shortly, does not provide for such participation. Arbitrator Makepeace of the Ontario Insurance Commission (now known as the Financial Services Commission of Ontario) made certain findings of fact as to whether Mr. Machin's health problems were caused by the accident. The arbitrator found that the majority of Mr. Machin's present health problems were not caused by the accident and, consequently, that he did not have a right to continue to receive SABs.

[4] Following the automobile accident, and before the resolution of the arbitration, Mr. Machin also commenced an action against Mr. Tomlinson for damages for the injuries that he claimed were caused by the accident. Mr. Machin's wife and his sons have also made claims for damages under the Family Law Act, R.S.O. 1990, c. F.3 and are co-plaintiffs in this action. Mr. Tomlinson admitted liability for the accident but disputed the damages. Before Archibald J., Mr. Tomlinson submitted that the findings of fact made by arbitrator Makepeace concerning the cause of Mr. Machin's health problems are binding upon Mr. Machin in any subsequent proceeding. Consequently, in the action brought by Mr. Machin against Mr. Tomlinson for damages, Mr. Tomlinson argued that Mr. Machin is estopped from re- litigating any of the findings of fact made by the arbitrator respecting the cause of his injuries.

2. Decision at first instance

[5] Archibald J. agreed with Mr. Tomlinson's position. In his reasons, Archibald J. reviewed the three requirements for issue estoppel as set forth in Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2), [1966] 2 All E.R. 536, [1967] 1 A.C. 853 (H.L.) and adopted by the Supreme Court in Angle v. Minister of Natural Revenue, 1974 SCC 168, [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544. They are: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel is final; and (3) that the same parties or their privies participated in the earlier litigation.

[6] Archibald J. held that the first requirement, that the same question be decided, was satisfied. He found that the arbitrator's factual finding that the majority of Mr. Machin's injuries were not caused by the accident was the identical factual underpinning to the issue of causation under s. 266(1) of the Insurance Act, R.S.O. 1990, c. I.8 governing accidents between June 22, 1990 and December 31, 1993. Both parties conceded that the second requirement, that the decision of the arbitrator be final, was met. With respect to the third requirement of privity of the parties, Archibald J. held that Mr. Tomlinson had an interest in Mr. Machin's dispute with his insurer and was a privy because if Mr. Machin was successful in his tort action against Mr. Tomlinson, the amount of any SABs received by Mr. Machin would be credited against the amount Mr. Tomlinson would have to pay. (See s. 267(1)(a) of the Insurance Act.) Accordingly, he held Mr. Tomlinson had a privity of interest with Mr. Machin's insurance company. In the opinion of Archibald J., the three requirements of issue estoppel were thus met and Mr. Machin was estopped from relitigating facts already decided before the arbitrator. Mr. Machin appeals from that decision.

[7] In my opinion, Mr. Machin is entitled to succeed in his appeal on the basis that Mr. Tomlinson is not a privy to Mr. Machin's dispute with his insurer. My reasons for this conclusion are threefold: (1) The statutory scheme permits Mr. Machin to bring two separate and distinct alternative proceedings; (2) Recent case law of this court suggests that in order for the privity requirement to be met, Mr. Tomlinson must have the opportunity to participate in the proceedings before the arbitrator and this "due process" option was not available to Mr. Tomlinson; and (3) Mr. Machin's insurer does not have a sufficient identity of interest with Mr. Tomlinson. In my analysis, I will elaborate briefly on each of these reasons.

[8] In view of my conclusion on the issue of privies, it is not necessary for me to address the issue of whether the question before the arbitrator and Archibald J. were the same and I do not propose to do so.

Analysis

1. The statutory scheme

[9] Sections 279 to 283 of the Insurance Act are reproduced for ease of reference at the end of this judgment. [The Appendix has been omitted from this report.] These sections state that when a dispute occurs with respect to an entitlement to SABs arising from a motor vehicle accident, mandatory mediation must take place. If mediation fails to resolve the dispute, the insured person may bring a proceeding in a court of competent jurisdiction against his or her own insurer or may refer the issue to an arbitrator. The choice of venue is that of the claimant and not the claimant's insurer.

[10] The arbitration option for resolving claims for statutory accident benefits contemplates that SABs taken to arbitration be adjudicated quickly, inexpensively and summarily. In contrast, if an action is commenced by the claimant against his own insurer for SABs, that action is heard with or immediately following the claimant's action against the tortfeasor. As the trial of an action against the tortfeasor usually takes place years after the accident, the claim will not be resolved quickly or inexpensively. Also, the same trial judge hears both actions in the presence of the claimant, the claimant's insurer and the tortfeasor. There is no issue that, as with all actions, the findings of the trial judge are binding on all the parties and the results are intended to be final whether or not the actions were heard together or consecutively. Again, the question here is whether issue estoppel should apply when the claimant has elected to have the dispute concerning their entitlement to SABs arbitrated.

[11] Caution must be exercised when deciding whether to apply the common law remedy of issue estoppel to a statutory arbitration. Issue estoppel is a common law rule of public policy that balances the right of a plaintiff to litigate an issue against the court's concern as to duplication of process, use of its limited facilities, concern for conflicting findings of fact, and for achieving justice between the litigants. Rasanen v. Rosemount Instruments Ltd. (1994), 1994 ON CA 608, 17 O.R. (3d) 267 at p. 289, 112 D.L.R. (4th) 683 (C.A.) per Carthy J.A. concurring in the result; Minott v. O'Shanter Development Co. (1999), 1999 ON CA 3686, 42 O.R. (3d) 321 at p. 340, 168 D.L.R. (4th) 270 (C.A.). However, these same policy concerns underlining issue estoppel do not appear to apply to the situation in which the legislature has specifically provided claimants with the option of having their dispute resolved under arbitration or through a court action.

[12] Additionally, the legislature, if it desired, could have specified that the arbitrator's findings of facts are final and binding on the claimant in any subsequent proceeding. It did not do so. The rules of statutory interpretation require a court to presume that the legislature knew what it was doing and intended to do what it did. If the legislature had intended that the claimant should automatically be bound by the arbitration proceedings the legislature would have used more specific language. The words chosen by the legislature must be presumed to have been deliberately chosen: Vijeyekumar v. State Farm Mutual Automobile Insurance Co. (1998), 1998 ON SC 14669, 38 O.R. (3d) 590, [1998] I.L.R. 1-3592 (Gen. Div.), affd (1999), 1999 ON CA 1640, 44 O.R. (3d) 545, 175 D.L.R. (4th) 154 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 438. There is nothing in the scheme of the Act or in its individual provisions that suggests that the findings by an arbitrator in the claimant's dispute concerning entitlement to SABs are intend ed to be binding in the claimant's subsequent tort action for damages against the tortfeasor. In fact, s. 282(16) of the Insurance Act states that the Arbitration Act, S.O. 1991, c. 17, does not apply to arbitrations under s. 282.

[13] Moreover, injecting issue estoppel into the arbitration proceedings concerning SABs would greatly raise the stakes, would lead to third parties seeking to make representations to the arbitrator and would needlessly complicate and prolong the proceedings. To make such a finding may also result in few, or fewer, applicants proceeding to arbitration hearings. In the result, the purpose of the arbitration option contemplated by the legislature would be undermined. For these reasons, I find that the statutory scheme of the Act does not support a finding that issue estoppel applies to facts such as are before this court.

2. The alleged third party privy had no right to participate in the arbitration proceedings

[14] The right to participate and the degree of participation by the person alleged to be a party or a privy in the prior proceeding is a consideration in determining whether in fact party or privy status exists. As Laskin J.A. observed in Minott, supra, at p. 337 O.R.:

Recent case law in this province suggests that a person must actively participate in administrative proceedings to meet the "same parties" requirement of issue estoppel.

[15] Mr. Tomlinson relies on Rasanen, supra, in support of his position that Mr. Machin is bound by the findings of the arbitrator. In that case, Abella J.A. held that an employee who had made a claim for eight weeks' termination pay under the Employment Standards Act, R.S.O. 1990, c. E.14 ("E.S.A.") was bound by the findings of the referee in his subsequent claim for damages for wrongful dismissal against his employer and was estopped from re-litigating the issue. Abella J.A., at p. 282 O.R., found that the employee, although not a party to the proceeding by the Ministry of Labour against the employer, was a privy. The employee, who was the appellant, had initiated the claim. Furthermore:

The Ministry of Labour, through counsel, appeared on the appellant's behalf for the purpose of promoting his claim and defending the officer's decision in his favour. He not only had notice of every step of the process and hearing, he was present at the hearing, gave evidence, heard the evidence and argument of all parties, and submitted or reviewed the relevant documentation filed.

That is a far cry from the situation here.

[16] In Minott, supra, Laskin J.A. was dealing with an application by a former employee for unemployment insurance benefits. The Unemployment Insurance Commission decided that the employee was disqualified from receiving benefits for six weeks because he had lost his job owing to his own misconduct. This finding was upheld by a Board of Referees. The employer was given notice and the right to be present but chose not to attend. The employee then brought an action for damages for wrongful dismissal against his employer. At p. 339 O.R., Laskin J.A. commented:

Ordinarily, employers do not appear on applications for unemployment insurance benefits or even on appeals because the stakes are small and they do not have a direct financial interest in the outcome, although they may be liable under s. 46(1) of the Act to repay any benefits received by an employee who subsequently succeeds in a wrongful dismissal action.

Although the employer had provided information to the Unemployment Insurance Commission in the form of a written statement, Laskin J.A. held this minimal participation did not make the employer a party for the purpose of issue estoppel. [See Note 1 at end of document]

[17] In this case, Mr. Tomlinson has no right to participate as a party in the arbitration proceeding. This lack of "due process" militates against a finding of privity of interest unless Mr. Tomlinson has a sufficient degree of identity with Mr. Machin's insurer to make him a privy.

3. Mr. Machin's insurer does not have the same identity of interest as Mr. Tomlinson's

[18] In order for there to be a privy of interest, there must be a sufficient degree of identification between the party and the privy to make it just to hold that the decision that is binding on the party is also binding on the person alleged to be a privy. In Carl-Zeiss-Stiftung, supra, at p. 550 All E.R., Lord Reid explained that privity of interest:

. . . can arise in many ways, but it seems . . . to be essential that the person now to be estopped from defending himself must have had some kind of interest in the previous litigation or its subject-matter.

(Emphasis added)

[19] The requirement referred to in Carl-Zeiss-Stiftung, supra, that the privy have "some kind of interest" in the prior proceeding, has been refined by the subsequent decision of Gleeson v. J. Wippell & Co. Ltd., [1977] 3 All E.R. 54 at p. 59, [1977] 1 W.L.R. 510 (Ch.) in which Viscount Megarry stated:

Privity for this purpose is not established merely by having 'some interest in the outcome of litigation'. . . . the doctrine of privity for these purposes is somewhat narrow, and has to be considered in relation to the fundamental principle nemo debet bis vexari pro eadem causa [no one should be twice harassed for the same cause].

(Emphasis added) [See Note 2 at end of document]

Consequently, ". . . there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party" (Gleeson, supra, at p. 60 All E.R.). [See Note 3 at end of document]

[20] Although it is clear that a "sufficient degree of interest" is required before a person can be found to be a privy, "It is impossible to be categorical about the degree of interest which will create privity." (J. Sopinka, S.N. Lederman & A. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at p. 1088). This determination must be made on a case-by-case basis. For example, in Rasanen, supra, the court was unanimous that in the circumstances issue estoppel should apply. However, Morden A.C.J.O., in his careful reasons concurring with Abella J.A., expressly indicated at p. 293 O.R.:

. . . I am not concerned with the example of an employee who is required to give credit for the amount of his statutory recovery in a subsequent civil action against his employer.

Here, the situation before the court is exactly the kind of situation excluded by Morden A.C.J.O. from the ambit of his holding respecting issue estoppel. The statutory scheme in this case requires the claimant to give credit for the amount of his SABs in a subsequent civil action against the tortfeasor. This requirement does not give the third party tortfeasor an interest in the dispute between the claimant and his own insurer concerning the claimant's entitlement to SABs. It is simply an accounting mechanism to ensure that an insured person does not recover from both his own insurer and the third party insurer for the same past damages.

[21] The alleged privy's interest is usually derived as a result of a claim under or through the person who was a party to the original decision: 420093 B.C. Ltd. v. Bank of Montreal (1995), 1995 AB CA 6246, 34 Alta. L.R. (3d) 269, 128 D.L.R. (4th) 488 (C.A.). As stated by O'Leary J.A., at p. 495 D.L.R., quoting Spencer Bower and Turner, The Doctrine of Res Judicata, 2d ed. (London: Butterworths & Co., 1969), with approval:

It is not enough to found an estoppel that a relationship such as that of principal and agent should exist as between the party to the earlier action and him whom it is sought to estop in the later, if this relationship is not such as to require recognition by the person whom it is sought to estop; the relationship must be such as to have validity vis-à-vis the party to be estopped in the later action.

(Emphasis added)

[22] In this case, although Mr. Tomlinson is claiming he was privy to Mr. Machin's insurer, Mr. Tomlinson simply does not derive any right, interest or validity from or through Mr. Machin's insurer. In the result, the third requirement in order for issue estoppel to apply -- that the same parties or their privy must participate in the earlier proceedings -- has not been met in this case.

[23] Even if it could be said that Mr. Tomlinson did have "some interest" in the outcome of the arbitration, it would not be a "sufficient degree of interest" to make it just to find Mr. Tomlinson a privy to Mr. Machin's insurer.

[24] The amount of SABs that Mr. Machin's insurer must pay may be insignificant when compared to the amount that Mr. Tomlinson is liable to pay. In addition, the interest of the claimant's insurer in the arbitrator's decision is quite adverse to the tortfeasor's interest in the sense that the more the claimant's insurer has to pay, the less Mr. Tomlinson's insurer must pay. Consequently, even if it could be said Mr. Tomlinson had some interest in the arbitration proceedings between the claimant's insurer and Mr. Tomlinson, it would not be just to apply issue estoppel in these circumstances: Carl- Zeiss-Stiftung, supra.

[25] In my opinion, there is no abuse of process and this ground of appeal is also dismissed.

Conclusion

[26] For these reasons, the appeal is allowed and the judgment is set aside. I would hold that issue estoppel does not apply. Consequently, Mr. Machin and the Family Law Act claimants are not bound by arbitrator Makepeace's findings of fact in their action against Mr. Tomlinson.

[27] Costs of the appeal are to Mr. Machin and the Family Law Act claimants. Costs of the proceedings below are reserved to the judge hearing the trial.

Appeal allowed.

Notes

Note 1: But see Bank Montreal v. Mitchell (1997), 1997 ON SC 12306, 143 D.L.R. (4th) 697, 25 O.T.C. 344 (Gen. Div.), affd (1997), 1997 ON CA 14484, 151 D.L.R. (4th) 574 (Ont. C.A.), and Scintilore Explorations Ltd. v. Larche (1999), 1999 ON SC 14948, 48 B.L.R. (2d) 248 (Ont. S.C.J.). These cases indicate that parties may be regarded as a privy in the absence of actual participartion where the parties had a right to participate "were invited to do so and their interest was the same as the parties who did participate".

Note 2: See also 420093 B.C. Ltd. v. Bank of Montreal (1995), 1995 AB CA 6246, 34 Alta. L.R. (3d) 269, 128 D.L.R. (4th) 488 (C.A.); Guay v. Dennehy (1994), 1994 MB QB 16669, 93 Man. R. (2d) 94, [1994] 5 W.W.R. 738 (Q.B.). There is some suggestion in Guay, at p. 746, that the requirement of privity of interest in Canadian and English jurisprudence has been interpreted too narrowly.

Note 3: In addition to the phrase "sufficient degree of indentification", references to a "community of interest" and a "closely associated" interest are also employed. See Rasanen, supra.