Pilon v. Cornwall (City), 2010 HRTO 1509

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Anne Pilon

Applicant

-and-

Corporation of the City of Cornwall, Robert Menagh, David Dick and John Flannigan

Respondents

Interim Decision

Adjudicator: David Muir

Date: July 12, 2010

Citation: 2010 HRTO 1509

Indexed as: Pilon v. Cornwall (City)

1This is an Application filed on June 11, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant has alleged in her human rights complaint filed with the Ontario Human Rights Commission (the “Commission”) on January 29, 2007 that her rights to be free from discrimination in employment on the basis of sex and disability were breached by the respondents. A hearing was held on January 26, 2010 in Ottawa to hear oral submissions on a number of preliminary issues raised by the respondents seeking the early dismissal of all or part of the Application. In an earlier Interim Decision, 2010 HRTO 680, I dismissed aspects of the Application on the basis that they were out of time. I also directed that the parties provide their submissions on a point raised at the hearing - whether or not the respondents should be bound by any of the findings of fact made by a Board of Referees in determining the applicant’s entitlement to employment insurance benefits following her leaving the workplace, allegedly due to illness.

Reconsideration

3In addition to responding to my direction that the parties make submissions on the preliminary point, the applicant also filed what amounts to a Request for Reconsideration of my Interim Decision. Although the applicant did not make her Request using the required Form TR-8, I will deal with the Request on its merits.

4Section 45.7 of the Code provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

5The Tribunal’s Rules provide that a reconsideration request may be made in respect of a final decision of the Tribunal. A final decision is one that “disposes of some or all of the central issues in the complaint as between the parties”: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at para. 41. The hearing in this case has not concluded and there remain significant issues to resolve in the upcoming hearing. However, the scope of the Application has been considerably narrowed by the Interim Decision and the allegations with respect to one ground of discrimination have been dismissed. Accordingly, and despite the respondents’ view that the Request is premature, I have considered the applicant’s submissions.

6Rule 25.5 of the Tribunal’s Rules of Procedure for Transitional Applications provides as follows:

25.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7In her lengthy and articulate submissions the applicant does not address any of the factors set out in Rule 25.5 above. The submissions are a re-argument of the issues raised by the respondents at the hearing, some of which are new and some not. The applicant evidently disagrees with my determinations in the Interim Decision but that is not a basis for a Request for Reconsideration. Accordingly the Request for Reconsideration is dismissed.

Is the Employer Bound by Facts Found by Board of Referees?

8The applicant left the workplace on or about September 15, 2005 and did not return. She alleges that she left because of her worsening symptoms of colitis consequent to unresolved workplace issues which she has characterized as harassment. The applicant filed a claim with the respondent employer for short-term sickness benefits which was denied. Her physician reported to the respondent employer on the application for short-term sickness benefits on or about September 20, 2005 that the applicant was experiencing “exacerbation of colitis, insomnia, illegible, emotional distress due to psychologically unhealthy work environment and harassment”. The respondent employer was also advised at that time that the applicant’s absence from work might be affected by “long standing issues that have never been addressed/resolved at work, not able to function in current work assignment”. The physician further advised the employer that the applicant had experienced a similar job related stress reaction in May 2004.

9The applicant applied for employment insurance sick benefits. The employer challenged her application for benefits. The Board of Referees (the “Board”) held a hearing in January 2006 and concluded that the applicant had just cause for not being at work largely based on her physician’s statements set out above. The Board rejected the respondent employer’s position that the applicant had left work because she was upset with its attempt to performance manage her.

10The policy purpose or goal of res judicata and the related doctrines of cause of action and issue estoppel is to ensure finality to litigation, an important public value. The Supreme Court of Canada in Angle v. M.N.R., 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544, articulated the policy rationale in the following terms pp. 550-51 D.L.R.:

The basis of issue estoppel as well as a cause of action estoppel has been variously explained; for example, that it is "founded on considerations of justice and good sense" (see New Brunswick Railway Co. v. British and French Trust Corp. Ltd., [1939] A.C. 1, at p. 19); that it is "founded upon the twin principles so frequently expressed in Latin that there should be an end to litigation and justice demands that the same party shall not be harassed twice for the same cause" (Carl Zeiss case, [1967] 1 A.C. 853, per Lord Upjohn at p. 946, per Lord Guest at p. 933); that it is founded on "the general interest of the community in the termination of disputes, and in the finality and conclusiveness of judicial decisions; and . . . the right of the individual to be protected from vexatious multiplication of suits and prosecutions . . ." (Spencer-Bower and Turner, Res Judicata, 2nd ed. (1969), p. 10).

11The requirements of issue estoppel in Canadian law were set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at p. 935:

. . (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

12The respondents state the doctrine of issue estoppel should not be applied in this case because two of the three requirements for its application are not present. The respondents state that while the decision of the Board is a final judicial decision, the same issue or questions were not determined by the Board and the parties in the two proceedings are not the same.

13The respondents made a number of arguments related to the similarity or not of the issues around which an estoppel might arise. The respondents’ arguments were largely in response to the notion that the issue or issues determined by the Board would effectively determine the entire Application. Accordingly, arguments were made about the different purposes of the two statutes, the primacy of the Code and its status – often described as quasi-constitutional. I agree with the respondents that the Employment Insurance Act (the “Act”) and the Code have dramatically different purposes and that given the important place of the Code in the legal system, caution should be used in curtailing the parties’ rights to have their issues adjudicated before the Tribunal. However, notwithstanding all of that, where the identical issue between the parties to an application has finally been determined in another judicial or quasi-judicial proceeding consideration ought to be given to the fairness and justice in allowing one party or the other to re-litigate that issue.

14The issue before the Board in this case was the application of section 29 of the Act to the applicant’s claim to employment insurance benefits. An employee who leaves their employment without just cause is not entitled to benefits or must wait a period of time before receiving them. Section 29 provides that just cause for leaving an employment exists “if the claimant had no reasonable alternative to leaving or taking leave having regard to all of the circumstances”, including, amongst other things, harassment or discrimination within the meaning of the Canadian Human Rights Code”. An important determination amongst several that will have to be made in this Application is whether or not the applicant was justifiably absent from the workplace after September 15, 2006 as a consequence of the fact that her illness was exacerbated by the employer’s action or inaction. This is precisely the same question that was before the Board and determined by it.

15The respondents also state that the parties in the two proceedings are not identical in that one of the individual respondents, John Flanagan, was not a party to the Board proceeding. It seems to me that while Mr. Flanagan was apparently not a party to the Board proceeding he was a privy of the appellants, the employer and the other management employees who initiated it. (See Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R.(3d) 267 S.C.C.) I am satisfied that the parties to the two proceedings are the same.

16For these reasons I am satisfied that the requirements for the application of the doctrine of issue estoppel are present. However, its application is discretionary and the respondents state that I should exercise my discretion to not do so in these circumstances. The respondents relied on a decision of the Ontario Court of Appeal - Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R.(3d) 321 in support of this position.

17Minott was a wrongful dismissal case where the issue was whether an employee summarily dismissed by his employer was estopped from asserting no just cause on the basis of a Board determination that he had been guilty of misconduct and not entitled to employment insurance benefits. The Court of Appeal, after concluding that the question in the two proceedings was not the same, discussed the reasons why, in any event, the Court should not exercise its discretion to apply the doctrine in that case:

First, the scheme of the Act contemplates that claims for unemployment insurance benefits be adjudicated quickly, inexpensively and summarily. To inject issue estoppel into these claims adjudications would undermine the aim of the legislative scheme: see also N. Grosman, "No Estoppel", 7 E.M.P. Bul. 2 (April 1997). Employers and employees may overlitigate these adjudications, hire lawyers unnecessarily or pursue appeals they might not otherwise take out of fear of the consequences in later civil litigation. As Molloy J. sensibly observed:

If the decisions of Boards of Referees as to misconduct are held to always be determinative of whether there has been cause for dismissal at common law, it will be necessary for employees to retain counsel and litigate before the Board in the same manner as before a court in a wrongful dismissal action. This would not be a desirable result for any of the parties involved, including the administrative board itself which would soon find its expeditious summary process clogged with parties litigating their civil causes of action.

Second, employees apply for benefits when they are most vulnerable, immediately after losing their job. The urgency with which they must invariably seek relief compromises their ability to adequately put forward their case for benefits or to respond to the case against them: see Restatement of the Law (Second), Judgment 2d (1982), s. 83(2)(e). Applying issue estoppel may therefore cause real injustice to an aggrieved employee. As Langdon J. noted in Hough v. Brunswick Centres (at p. 54), "[t]o become unemployed is a fairly universal experience in modern days. It is an almost automatic reaction for anyone who is terminated or laid off to file for benefits. One does not do so with the thought in mind that if one loses one's claim, one is at risk of having all legal remedies foreclosed."

Third, the financial stakes in an application for unemployment insurance benefits are typically insignificant compared to the financial stakes in an action for wrongful dismissal (Restatement, p. 279). Here, before the Board of Referees, only a few weeks of benefits were at stake, but in the wrongful dismissal action $40,000 was at stake. As Sharpe J. observed in Randhawa (at p. 25), "there may well be situations where one would hesitate to apply the doctrine of issue estoppel where a party participated in an administrative hearing having insignificant consequences and the result of that hearing was then raised later in a suit which had enormous consequences." To apply issue estoppel in such a case may be as unfair to the employer as to the employee.

Fourth, the procedural differences between a hearing under the Act and a civil action for wrongful dismissal may cause a court to exercise its discretion against applying issue estoppel. The Restatement (Second) of Judgments sets out several exceptions to the application of issue estoppel (see Restatement, para. 28 "Exceptions to the General Rule of Issue Preclusion"). One exception recognizes that procedural differences in the two proceedings may be a sufficient reason not to apply issue estoppel. Section 28(3) of the Restatement states that "a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts". Morden A.C.J.O. expressed a similar view in his concurring judgment in Rasanen when he said (at p. 295), "I do not exclude the possibility that deficiencies in the procedure relating to the first decision could properly be a factor in deciding whether or not to apply issue estoppel" In Rasanen itself, Morden A.C.J.O. held that the tribunal procedures were sufficient to apply issue estoppel. Carthy J.A., dissenting on this point, held that they were insufficient.

18Although neither party referred me to these decisions the Tribunal has, in other circumstances, found that Board decisions were binding on a party, see for example: Islam v. Ball, 2009 HRTO 2164 and Caldeira v. 2068006 Ontario, 2010 HRTO 920. Both of these decisions dealt with the application of section 45.1 of the Code which authorizes the Tribunal to dismiss all or part of an application “where the substance of the application has been appropriately dealt with in another proceeding”. The Tribunal has found that the power in section 45.1 is broader but does include the doctrine of issue estoppel. The question for the Tribunal in both cases boiled down to whether or not the applicant should be entitled to challenge the Board’s findings regarding the reasons for their employment ending. In both cases the Board determined the issue based on the applicants’ evidence at the Board hearing.

19Turning to the facts of this case, while the employer commenced the appeal and did attend the Board hearing, it is clear from the decision that it was a summary proceeding. It appears that the employer may have made a statement through one of its employees and advanced the position that there were no medical issues justifying the applicant’s leaving the workplace. The applicant attended by telephone. However ,there was no new evidence tendered other than that contained in the appeal docket compiled by the Commission and no opportunity for either party to question each other’s evidence. Most importantly, because the applicant’s family physician did not attend the hearing, the employer had no opportunity to challenge her opinions. The family physician’s opinions were central to the Board’s determination of the issue before it.

20For these reasons I am not satisfied that it would be fair or just to bind the respondents to the Board’s factual determination in these circumstances.

21I am seized of this matter.