Elena Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Prelogar Applicant

-and-

Fine Line Imports Inc. Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: August 3, 2011 Citation: 2011 HRTO 1458 Indexed as: Prelogar v. Fine Line Imports Inc.

APPEARANCES

Elena Prelogar, Applicant ) Sharan Basran, Counsel ) Fine Line Imports Inc., Respondent ) Michael Smyth, Counsel

1The applicant filed an Application on August 19, 2009 with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the grounds of sex (pregnancy).

2The respondent filed a Response denying the allegations. The respondent also filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because an Employment Standards officer appointed under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”), has already dealt with the issues raised in the Application. The applicant filed a Response to the RFOP submitting that her Application should continue to proceed.

3A hearing for October 21, 2010 was scheduled further to a Confirmation of Hearing Notice. A Case Assessment Direction (“CAD”) dated September 24, 2010 was issued by the Tribunal advising that the October 21, 2010 would be converted to a conference call hearing to address the respondent’s RFOP. The applicant retained counsel and both parties participated in the conference call hearing.

4Both parties filed submissions, documents and case law with respect to their respective positions and a conference call hearing was held on October 21, 2010. The conference call hearing adjourned briefly so that respondent counsel could provide additional case law to the applicant’s counsel and the Tribunal. Applicant’s counsel requested a period of time following the conference call hearing to review the respondent’s additional case law and file any submissions, which was granted. She subsequently contacted the Tribunal to advise that she did not wish to file any submissions on those cases.

5This Interim Decision addresses the respondent’s RFOP requesting that the Tribunal dismiss the Application pursuant to section 45.1.

FACTUAL BACKGROUND

The Applicant’s Allegations

6The applicant alleges that on February 19, 2009 she advised the respondent that she was pregnant. On February 20, 2009, she alleges that the respondent told her that due to economic reasons, her full time position would cease at the end of April 2009 and she would become seasonal, meaning she would work for 3 months and then be off for 3 months. She was told that the next seasonal period they would need her was August, which, because it coincided with her due date, meant that they would either hire someone to replace her or disperse her work amongst other employees. The respondent told her that in the meantime, and to help her financially, they would employ her through a sister company, which they would start to operate in April 2009.

7On April 28, 2009 the applicant was called into a meeting by one of the owners and told that her employment would cease on May 2. The applicant was told that the sister company was not yet operating, it would take three to four weeks to start up and she was to keep in touch with them to find out when her services would be required for it. The applicant states that following receipt of this information she became very emotional and told the owner that the respondent had mistreated her financially and emotionally, and she believed that the respondent was treating her this way because she was pregnant. She threatened legal action against them.

8Following this outburst, the respondent asked the applicant to leave the premises, which she said she would do if they provided her with various documentation including a Record of Employment, letter of reference, and payment. The respondent refused to provide this. The applicant left because the respondent threatened to call the police.

9On April 29, 2009, the respondent called her at home to say that they were processing her separation papers and asked her about a document she had previously worked on. The applicant thought it was still on her desk but eventually found it amongst the items that she took with her when she left the respondent’s premises on April 28. The applicant received her Record of Employment and 2 weeks’ severance pay, but not a letter of reference.

10The applicant filed a request to amend her Application dated September 30, 2010 by alleging reprisal.

The Respondent’s Position

11The respondent alleges that the applicant performed her job adequately, but had a poor attitude and confrontational demeanour in the workplace. In late 2008, the respondent recognized that it suffered a 30% drop in sales volume as a result of the downturn in the economy and it began to look for cost-saving measures.

12It decided that it could no longer afford a full time customer service representative and in November 2008 the respondent decided to change the applicant’s position from full time to seasonal, so that she would work 3 months on and have 3 months off. Because the applicant was getting married in December 2008, the owners decided to wait until 2009 to advise the applicant of the change.

13On February 19, 2009 at 5:00 pm, the owners met with the applicant to advise her of the change in the status of her employment. Specifically, they advised that her status would change from full-time to seasonal as of April 2009. The owners advised that they were in the process of starting up another company, which they hoped to have operational in April 2009 and they hoped to be in a position to offer her part-time work with that company when it became operational. After advising her about the change in her status, the applicant advised that she was pregnant and the owners congratulated her.

14On April 28, 2009, one of the owners met with the applicant to remind her that her full-time employment would end on May 3 and that they still hoped to be able to offer her part-time work when the other company was up and running.

15The respondent asserts that the applicant became angry and loud when reminded about the change in her employment status, used profanity towards the owners, accused them of “screwing her”, and alleged she had been mistreated during her employment. As a result of her rude and belligerent behaviour, one of the owners directed her to leave. The respondent had expected the applicant to continue to work until May 3, so it did not have her Record of Employment prepared. It advised the applicant to pick it up in a couple of days.

16Following her departure, the respondent looked for a confidential and sensitive document on which the applicant had been working detailing the respondent’s invoicing procedures. It could not locate that document and requested an IT consultant to look at the applicant’s computer to find it. The IT consultant determined that the document had been deleted on April 28, 2009 and he was not able to recover it.

17On April 29, 2009, one of the owners called the applicant at home about the document. The applicant returned the call and advised the owner that she may have taken it along with her personal items when she left. Later the applicant called and advised that she had the document and, upon the respondent’s request, returned it.

18As a result of the applicant’s conduct, the respondent concluded that it had just cause to terminate her employment, and provided her with a letter of termination, 2 weeks’ termination pay, and her Record of Employment. The respondent denies that it mistreated the applicant or discriminated against her on the basis of pregnancy.

19The respondent did not file a response to the applicant’s request to amend her Application.

THE EMPLOYMENT STANDARDS ACT, 2000 COMPLAINT

20On May 12, 2009, and several months before she filed her Application, the applicant filed a claim under the ESA alleging breaches pertaining to unpaid wages, vacation pay, termination pay, leaves of absence (intention to take a pregnancy leave), and reprisal. An officer under the ESA (“the ESO”) was appointed to determine the complaint.

21The ESO scheduled a meeting for October 29, 2009 for the applicant and the respondent to attend. The applicant requested that the meeting be rescheduled and it was changed to December 1, 2009 (“the ESO meeting”). The applicant and the owners of the respondent attended the meeting, as did a witness for the respondent.

22The ESO issued a written decision in December 2009. It was sent to the respondent by letter dated December 23, 2009. In the decision, the ESO identified the issues as being: “[w]as the claimant dismissed because she was pregnant? Is the claimant owed wages, vacation pay and termination pay?” After setting out a number of facts under the heading “Claims Investigation”, the ESO set out her conclusions under the heading “Decision”. She wrote:

With respect to the reason for termination as alleged by the employee that she was “dismissed because she was pregnant[“]; the Employment Standards Act, 2000 does not set out an exemption for termination because an employee is pregnant. The claimant was dismissed according to the Employment Standards Act, 2000, that is she received termination pay.

I am satisfied that the company was laid off/dismissed for legitimate economic reasons and not because the claimant intended to take a pregnancy leave.

THE CONFERENCE CALL HEARING

The Respondent’s Submissions

23The respondent submits that the Application should be dismissed on the basis of res judicata or pursuant to section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure because the substance of the Application was appropriately dealt with in the ESA proceeding. The respondent submits that the factual content and issues of the Application significantly overlap with those in the ESA complaint. The reprisal allegations are “part and parcel” of the allegation that the termination was because of the applicant’s pregnancy. The same parties were involved in the ESA proceeding, the issue was finally determined, and no further right of appeal exists. Whether it is characterized as a res judicata or a section 45.1 request, the Application should be dismissed because of the findings made by the ESO.

24The respondent submits that the ESO met with the applicant before the ESO meeting took place. At the meeting, both the applicant and the respondent were present and both had an opportunity to present their positions in front of each other. The applicant was present for most of the ESO meeting, knew that the respondent’s position for the change in her employment status was for economic reasons and that she was terminated because she was verbally abusive to them, deleted and removed a sensitive work document. The applicant had an opportunity to respond to the respondent’s position.

25The applicant may not have seen all the respondent’s documents that were provided to the ESO, but this does not result in a denial of natural justice. The ESO is not required to disclose all information that is being considered, just that which is substantively adverse to the applicant in accordance with the principles stated in Downing and Graydon (1978), 1978 CanLII 1424 (ON CA), 21 O.R. (2d) 292 (C.A.). She knew the purpose of the meeting in advance of the meeting, was aware that the respondent’s position differed from her position, and was given an opportunity to respond to the respondents’ position. The applicant chose to leave the ESO meeting before its conclusion. She declined the ESO’s offer to take a break to feed her baby, choosing instead to leave the meeting. The respondent submits that the applicant, having chosen to leave, cannot not claim procedural unfairness.

26The applicant did not file an application for review of the ESO’s decision to the OLRB, which conducts a hearing de novo, and accordingly the ESO decision stands as a final decision.

27The respondent submits that the Supreme Court of Canada decision, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, states that a litigant is required to put his or her best foot forward, that issues should not be re-litigated in different forums and a party is entitled to some finality in the litigation process. The applicant had her opportunity before the ESO and the respondent is entitled to finality in the litigation process. The proper course for an applicant like this one is to appeal the ESO’s decision to the OLRB.

28The respondent submits that procedural and natural justice were administered during the ESA process to the applicant. The ESO’s reasons for dismissing the ESA complaint may not be perfect, but they are adequate. They show that that the ESO turned her mind to the dispute between the parties, considered the factual and legal issues at play and accepted the respondent’s version of events over the applicant’s version. The Ontario Court of Appeal’s decision in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 (“Neinstein”) stands for the principle that it is not necessary to make findings of fact when the decision maker accepts one version of events over another.

29The respondent acknowledges that there are grammatical mistakes in the ESO’s decision, such as the line stating “the company was laid off/dismissed” rather than stating “the applicant was laid off/dismissed”. The respondent submits that this is a typographical mistake and it follows previous sentences referring to the applicant’s termination. Notwithstanding the grammatical mistakes, the respondent submits that a reasonable person reading the ESO’s decision and covering letter would understand the conclusion that the complaint was dismissed. The applicant takes, the respondent submits, an overly technical approach to the ESO’s decision with respect to the impact of the grammatical mistakes, which is inconsistent with the Tribunal’s jurisprudence and contrary to the purpose of section 45.1.

30The respondent submits that the Tribunal’s role is not an appellate body over of the ESO. Further, it is not the role of the Tribunal to determine whether or not it would agree with the ESO’s decision. The substance of the ESA complaint is, in pith and substance, the same as the substance of the Application. The Application should be dismissed in accordance with section 45.1.

The Applicant’s Submissions

31The applicant submits that the Tribunal should not dismiss her Application on the basis of section 45.1. The applicant acknowledges that there is a duplication of facts and issues between the ESA proceeding and the Application, but submits that is not sufficient to meet the test under section 45.1. The applicant asserts that the ESA process, including the ESO’s decision, was both procedurally and substantively flawed, and as a result, the ESA process did not “appropriately dealt with the substance of the Application”.

32The applicant asserts that before the ESO meeting she tried to find out what information the respondent would be relying upon and was told by the ESO that she would find out at the meeting. She learned by reading the ESO’s decision that documentation had been provided by the respondent to the ESO, including documentation showing a 35% decline in sales, a record of employment for another employee and a memo which seems to contradict the respondent’s position and when it advised the applicant about her change in status. The applicant asserts that she was not provided with that documentation either during or after the ESO meeting and therefore had no opportunity to question the employer on that point. The ESO’s reliance on information and documentation that was adverse to the applicant and that was not provided to her amounts to a denial of natural justice. See Downing and Graydon, supra.

33Although the applicant left the ESO meeting before it ended, she submits that she asked the ESO if she should stay and the ESO said no. The applicant does not know what happened after she left the meeting.

34The applicant agrees that the Tribunal ought not to sit as an appellate body over decisions made by other decision makers. However, she submits that the ESO did not exercise her functions in a judicial manner and as a result her decision is procedurally flawed. The ESO sets out headings identifying issues, but merely recited evidence without making findings of fact on them. There are no findings of fact on all the issues, particularly on the central issue of the timing of when the applicant disclosed her pregnancy to the respondent. There is no reference in either the factual summary or the conclusion about the allegation of reprisal. No legal analysis about the human rights principles was conducted.

35The applicant submits that the last paragraph, which sets out the ESO’s conclusions, is confusing, contains grammatical mistakes, and does not set out reasons or explanations for the decision. The applicant does not know why the ESO came to the conclusion that she did and what she relied upon in coming to that conclusion. This is similar to the situation in Noel v. Frater, 2009 HRTO 1646 where the Tribunal dismissed a request to dismiss under section 45.1 on the basis that the ESA decision in that case did not set out any reasons for its findings. The ESO’s failure to provide reasons demonstrates that she failed to appropriately deal with the substance of the Application which deprived the applicant of procedural fairness.

ANALYSIS

36Section 45.1 states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

37Section 45.1 is a discretionary remedy and in this Application I must determine whether or not I should exercise that discretion because of the ESO’s decision. In Workers’ Compensation Board v. British Columbia (Human Rights Tribunal), 2010 BCCA 77 (leave to appeal to SCC allowed 2010 37856 (SCC)), the British Columbia Court of Appeal considered s. 27(1)(f) of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 (“the BC Code”), which is similar to section 45.1 of the Code and commented upon the discretionary element of such language. At para. 29, it noted that the British Columbia Legislature, with the combined effect of the language of section 27(1)(f) of the BC Code, as well as its deferral language:

… has conferred on the Tribunal jurisdiction to adjudicate a human rights complaint even though the same issue is being raised before, or has been dealt with by, another body. For example, if a complaint is filed with both the Tribunal and another body then, by virtue of s. 25(2) [the deferral language of the BC Code], the Tribunal has the discretion to defer dealing with it until the outcome of the other proceeding is known. Such a deferral amounts to no more than a voluntary suspension of the Tribunal’s jurisdiction. Once the other body has dealt with the matter, the Tribunal has the authority, by virtue of s. 27(1)(f), to either exercise or not exercise its jurisdiction. Whether the Tribunal proceeds in any given case is a matter within its discretion. In other words, the legislative scheme specifically recognizes that the Tribunal can adjudicate a complaint notwithstanding that another body has already dealt with the substance of the same matter. There is no automatic loss of jurisdiction.

The fact that a body such as the Review Division has dealt with a human rights issue over which the Tribunal has jurisdiction does not have the effect of nullifying that jurisdiction…. In the case at bar, the issue is not whether the Tribunal has authority to inquire into whether the WCB’s chronic pain policy violates the [BC] Code but whether it should exercise that authority. That question is determined under s. 27(1)(f).

38Section 45.1 of the Code has generally been considered in two parts: (1) was there another “proceeding”; and (2) if so, did it “appropriately deal with the substance of the Application”.

39In other decisions, the Tribunal has held that a complaint determined by an ESO constitutes a “proceeding” within the meaning of the Code. (See, for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153; Little v. TeleTech Canada, 2009 HRTO 1763; and Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672.) The respondent during its submissions acknowledged that the Tribunal has, in other cases, accepted that the ESA process is a “proceeding”. Following the Tribunal’s jurisprudence, I am satisfied that the complaint process before the ESO constituted a “proceeding” under the Code within the meaning of section 45.1.

40The Tribunal has stated that the onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. See Haykin v. Roth, 2009 HRTO 2017.

41It is settled law that anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Barker v. Service Employees International Union, 2010 HRTO 1921.

42As stated in Campbell v. Toronto District School Board, 2008 HRTO 62, at paras. 29 to 31:

Before turning to an examination of the legal principles, it is useful to set out some guiding principles that will inform the following discussion. First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement – the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason. Second, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across a panoply of courts and tribunals. Some of these courts and tribunals have overlapping jurisdiction, and may have considerable expertise in particular areas of law. The Tribunal must undertake its own work with an appreciation of its role in the broader scheme of administrative justice, providing leadership in the interpretation and application of the Code while respecting the legitimacy of decision-making by other tribunals within their own mandates.

Further, both public and private interests require finality in litigation. As expressed by the Supreme Court of Canada in Danyluk:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant must, to use the vernacular, is only entitled to one bite at the cherry… An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. (para. 18).

The coherence of the administration of justice as well as the need for finality in litigation informs another guiding principle here: that the Tribunal does not act as an appellate court from a decision of another tribunal. In common law, this principle has been expressed as the rule against ‘collateral attack’, described by the Supreme Court has another aspect (in addition to res judicata) of the judicial policy favouring finality:

… i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it… These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided. (Danyluk, para. 20-21).

43In applications filed under the Code and complaints filed under the ESA with respect to pregnancy, the Tribunal has noted the similarities between the two statutes. In Chen v. Harris Rebar, 2009 HRTO 227, at para. 13 the Tribunal stated:

The pregnancy and parental leave provisions together with section 74 of the Employment Standards Act are in the nature of anti-discrimination enactments. The language of those provisions is broadly drafted to provide protection to women in the workplace who are, or may become, pregnant. Employment standards officers are given broad remedial powers to employ where a violation of these provisions is found. The heads of damages available are analogous to those available under the Code, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

44In situations in which an applicant has filed an ESA complaint, which has been determined by an ESA or the OLRB, and filed an application, the Tribunal will have to review the particular circumstances in the case to determine whether or not it should exercise its discretion under section 45.1 to dismiss an application.

45I agree with the respondent that an applicant who is not satisfied with an ESO’s decision should file an appeal to the OLRB rather than file an application under the Code because he or she disagrees with the ESO’s decision. See Zeamanuel v. Avcan Management, 2010 HRTO 1721 at para. 17. I also agree that the Tribunal does not sit as an appellate body over other proceedings in which the same facts and issues have already been determined. See Campbell, supra, at para. 31. Further, I accept that it is not the Tribunal’s role to decide whether or not it agrees with the decision maker in the other proceeding or would have some to the same conclusion. See Zeamanuel, supra, at para. 15.

46Further, I also agree with the respondent that the applicant, who chose to leave the ESO meeting that was scheduled specifically for the purposes of addressing the ESA issues, cannot now successfully argue that the continued meeting violated her rights to natural and/or procedural justice. The applicant had the option of appealing the decision of the ESO to the OLRB, at which time she could have made any unfairness argument. She chose not to appeal. See Mukherjee v. RMF Design and Manufacturing, 2010 HRTO 2111.

47Finally, I agree with the respondent that the ESO’s decision contains a grammatical or typographical mistake when it states, in the decision section, that the company rather than the applicant was laid off/dismissed. However, this mistake does not, in my opinion, assist me in resolving the issue of whether or not the ESO appropriately dealt with the substance of the Application. The confusion about the meaning of the first paragraph of the decision section also does not assist me in my section 45.1 determination. Instead, I have found that the ESO’s lack of analysis, particularly in addressing the parties’ conflicting positions of when the applicant advised that she was pregnant, to be sufficient to conclude that the ESA proceeding did not appropriately deal with the substance of the Application.

48Because of my findings below, I do not need to address the other allegations of procedural unfairness raised by the applicant, including documents adverse to the applicant’s interests not being given to her for response.

49In the “Reasons for Decision”, the ESO sets out a number of facts under the heading “Claims Investigation”, including those asserted by the applicant and those asserted by the respondent. However, under the heading “Decision” there is no reference to what facts the ESO considered in rendering her decision and no analysis as to how she arrived at her conclusion. This is in contrast to, for example, what the OLRB considered in making its decision in Chen v. Harris Rebar, supra, at paras. 18 and 19.

50I agree with the applicant that the ESO did not highlight or identify how she resolved the conflict between the parties on what was one of the central issues in both proceedings: the timing of when the applicant told the respondent that she was pregnant. The decision is silent about the applicant’s conduct after she was told that she was laid off her full time position which led to her termination. Further, there is nothing in the factual portion or under the decision section to address the applicant’s allegations that either her change in status or her termination was a reprisal for being pregnant. There is no explanation as to why the ESO concluded the way that she did.

51The Ontario Court of Appeal in Neinstein, at para. 60, stated in the appeal, “Reasons will be required when the decision in issue has ‘important significance for the individual’”. Further, at para. 80, it stated, “It can be fairly said that Mr. Neinstein, on a reading of the Hearing Panel’s reasons, would have absolutely no idea what, if anything, the Hearing Panel made of his evidence, and that of his support witnesses”. While the Tribunal does not act as an appellate court, the lack of analysis in the ESO’s decision, not only on the issues but also in determining credibility, is such that, in my opinion, the ESO did not appropriate deal with the substance of this Application.

52This is in contrast to the situation in Chen v. Harris Rebar, supra, at para. 19 where the Tribunal noted the OLRB made credibility findings on the key questions before it and accordingly had appropriately dealt with the substance of that application. Instead, this Application is more similar to the situation in Noel v. Frater, supra, where, at para. 10 the Tribunal noted “The ESA decision did not set out any reasons for its findings” and Carlos v. 1174364 Ontario, 2008 HRTO 403, where, at para. 14, the Tribunal stated, “There is no analysis of the evidence or indication of the human rights principles applied. There is no explanation why the Board rejected the applicant’s evidence or preferred the evidence of the respondents”.

Res Judicata, Issue Estoppel and Abuse of Process

53I agree with the principles stated in Campbell, supra, which are set out above, and which quote the Supreme Court of Canada decision, Danyluk, in relation to res judicata, issue estoppel and abuse of process. I agree that the purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

54In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of res judicata as follows at para. 40:

There are two principal branches of the doctrine of res judicata. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. The issues in question in the second proceeding must have been necessary to the decision in the first proceeding. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar relitigation of only a discrete issue or it may bar the second action in its entirety. (O’Connor, supra at para 24). The second branch of res judicata, known as “cause of action” estoppel, is not raised in this case.

55In the same decision the Tribunal went on to note at para. 41 that the criteria to be met for issue estoppel to apply are as follows:

• the same questions are being decided in both proceedings;

• the judicial decision which is said to create the estoppel is a final decision;

• the parties, or their privies, are the same.

56In HMTQ v. Matuszewski, 2008 BCSC 915, the British Columbia Supreme Court determined that the common law doctrine of issue estoppel is built into the discretionary exercise of section 27(1)(f) of the BC Code. At paras. 31 to 32, the Court stated:

In my opinion, the common law doctrine of issue estoppel does not provide an independent ground upon which to deprive a statutory administrative tribunal of jurisdiction. Rather, the principles that underlie the doctrine, together with the principles that underlie the concept of mootness and abuse of process, are factors of primary importance that must be taken into account when exercising discretion under s. 27(1)(f) of the [British Columbia] Human Rights Code to proceed, or to refrain from proceeding, with the hearing of a complaint.

57I accept that the principles underlying the common law doctrine of issue estoppel are factors that can be considered in the discretionary exercise of section 45.1 of the Code. See also Carlos, supra, at para. 17.

58In this Application, the parties are the same as in the ESA proceeding. The ESO issued a decision, which is a final one because the applicant did not appeal it to the OLRB. Certainly two of the three requirements for issue estoppel have been met.

59However, the first requirement, that the same questions are being decided in both proceedings, has not, in my opinion, been met. While the ESO identified the issues as: “Was the claimant dismissed because she was pregnant? Is the claimant owed wages, vacation pay and termination pay?”, those are not the same as the issues in this Application. Instead, I find that the issues in the Application are: was the applicant’s change in status from full time to seasonal because she was pregnant? Was she terminated because she was pregnant or was her pregnancy a factor in the reasons for her termination? Although the Tribunal has yet to determine whether the applicant can amend her Application to include reprisal, if allowed, another issue in the Application is whether the applicant’s termination was a reprisal for exercising her legal rights.

60One of the issues in the Application, whether the applicant was terminated because she was pregnant, was an issue before the ESO. Earlier in this Interim Decision I have expressed concerns that the ESO did not appropriately dealt with the termination issue. However, in addition, the other issues were not before the ESO, and they are central to a determination in this Application. As such, the requisite elements of issue estoppel have not been met. Even if they were met, because of my finding that the ESO did not appropriately deal with the substance of the Application, I would decline to exercise my discretion to dismiss pursuant to section 45.1 of the Code.

61Accordingly, I decline to exercise my discretion to dismiss the Application pursuant to section 45.1. The Application can continue.

62As both parties have expressed a willingness to mediate, the Tribunal will schedule a half-day mediation.