Issue Estoppel after Change in Law

A change in law after a decision as been reached does not affect the application of the doctine of issue estoppel.


http://www.canlii.org/en/on/onca/doc/2008/2008onca746/2008onca746.html
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and see lower court decision: http://www.canlii.org/en/on/onsc/doc/2008/2008canlii27479/2008canlii27479.html

"...[28] In my view, the appeal against the refusal to grant a stay can and should be resolved solely on the basis of issue estoppel. Accordingly, for the purposes of this appeal, I will assume without deciding that Dell and Rogers do change the law of Ontario and that ss. 7 and 8 of the Consumer Protection Act, 2002 do not have retroactive effect. Before discussing issue estoppel, I will briefly address the jurisdictional issues.

[53] I conclude that the motion judge did not err in exercising his discretion in favour of applying issue estoppel in the circumstances of this case. Even if Dell and Rogers would now compel a court to stay a class proceeding in the face of a consumer agreement providing for arbitration, when all of the circumstances of this case are considered, I agree with the motion judge that it would not be unjust to apply issue estoppel and to hold the appellants to the prior determination.

[55] Even if the Consumer Protection Act, 2002 provisions do not have retroactive effect and even if the Supreme Court of Canada’s decisions in Dell and Rogers have changed the law in Ontario, I conclude that the doctrine of issue estoppel precludes the appellants from relitigating the issue of whether this action should be stayed on account of the arbitration clauses. The appellants have fully litigated the issue all the way to the Supreme Court of Canada and lost. Following that loss, the action proceeded to certification, discovery and it is now set down for trial. It would be fundamentally unjust at this late stage of the proceedings to grant the appellants a stay that would not, in fact, send this case to arbitration but rather would have the effect of denying any remedy to borrowers who are subject to arbitration clauses...."