Law360 Canada ( August 16, 2018, 8:41 AM EDT) -- Appeal by the plaintiffs from the dismissal of their application to strike portions of the response to civil claim and an order precluding the defendant Attorney General of Canada from challenging certain factual assertions made in the pleadings. The appellants challenged the constitutional validity of the definition of a grievous and irremediable medical condition, one of the prerequisites to the Criminal Code provision of medical assistance in dying. The Criminal Code had been amended after the Supreme Court of Canada struck down the Criminal Code’s absolute prohibition on physician-assisted dying in the Carter case. The appellants, in their pleadings, relied upon the facts as found by the judge in the trial decision that was upheld in Carter in support of their present claim, arguing that this litigation was a continuation of the same constitutional dialogue started by the decision in Carter. The appellants sought to strike out parts from Canada’s response in which Canada claimed that the findings in Carter were specific to that case, that Carter was a challenge to the absolute prohibition on physician-assisted suicide and that the Carter decision was expressly stated to be restricted to the factual circumstances of that case and inapplicable in this litigation. In support of their submission that Canada was bound by certain of the findings in Carter, the appellants relied upon the doctrine of issue estoppel and argued that re litigation of these issues would amount to an abuse of process and constitute a collateral attack on prior court judgments. The chambers judge held that he would exercise his discretion to decline to apply issue estoppel, regardless of whether or not the appellants could satisfy its requirements. He held that he should not prevent Canada from creating the full factual matrix that was important in constitutional challenges and that the factual findings of the Carter litigation could not simply be transposed on to this contextually-distinct case. He dismissed the submission that the defence amounted to a collateral attack upon decisions that followed. He found that invoking either the doctrine of issue estoppel or the doctrine of abuse of process to strike the impugned pleadings would work an injustice....