Préclusion, res judicata et préclusion découlant d’une question déjà tranchée : des éclaircissements s’imposent !

Abstract

Res judicata and issue estoppel are legal concepts that are infrequently addressed in Canada’s French-language doctrine and jurisprudence. However, to the extent their application will put a premature end to an action, it is essential for the lawyer and the judge to identify them precisely, as well as their source, the estoppel. This article is therefore intended as a French-language reference tool for lawyers and judges with a background in either civil law or common law and who wish to know the basics. The author reviews their foundation, nature and object as well as, in respect of the issue estoppel, the conditions for its application. Throughout the text, special attention is paid to the terminology problems that may be encountered by jurists who are interested in these concepts. These problems relate to their translation from English to French as well as the meaning given to them by the doctrine and the jurisprudence. In this regard, the author draws a special distinction between res judicata and issue estoppel and autorité de la chose jugée in civil law.