“As Justice Kiteley has already dismissed the applicant’s request for production of the Decentral Server, the respondent takes the position that the motion before this Court must be dismissed by reason of issue estoppel, res judicata, abuse of process and/or collateral attack.
As held by the Court of Appeal for Ontario in Kendall v. Sirard 2007 ONCA 468, an interlocutory order is still nevertheless binding on the parties, and “it is not open for the Court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal”.
Notwithstanding, as Justice Kiteley’s decision is not final, the doctrine of issue estoppel and res judicata would not “forever preclude” the applicant from bringing a motion for the same relief. However, as held in M. B.-W. v R.Q. 2015 NLCA 28 (CanLII), such a motion could only be considered, and potentially granted, by the Court if the applicant could demonstrate the presence of new, material facts, or material facts which were previously not discoverable by the applicant through the exercise of reasonable diligence.”