COURT FILE NO.: 165/04

DATE: 20050915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Between: Severino Lacambra v. Richtree Markets Inc.

Before: Swinton J.

Counsel: Severino Lacambra in person

No one appearing for Richtree Markets Inc.

Heard at Toronto: September 13, 2005

Endorsement

[1] Mr. Lacambra appeals from the decision of Deputy Judge Levine dated February 27, 2004, in which he dismissed Mr. Lacambra’s claim for two weeks’ pay in lieu of notice. No one appeared for the respondent Richtree Markets Inc., although they were notified by the Court of the date of the hearing and were served with the appellant’s materials.

[2] Mr. Lacambra was dismissed without notice by Richtree Markets Inc. on April 26, 2001. The dismissal letter makes reference to harassment of another worker. He was denied unemployment insurance benefits, and he appealed to the Board of Referees. In a decision dated November 8, 2001, the Board of Referees dismissed his appeal, concluding that Mr. Lacambra had lost his employment due to his own misconduct.

[3] In the Small Claims Court action, he sought two weeks pay in lieu of notice in accordance with the Employment Standards Act, as he had been employed for just under three years with the respondent. The respondent claimed in its defence that Mr. Lacambra had been dismissed for cause, and therefore, no payment was due.

[4] The Deputy Judge concluded that he was bound by the decision of the Board of Referees on the issue of misconduct, as in his view that decision finally determined whether Mr. Lacambra was dismissed for cause or not (see pp. 3-4 and 6 of the transcript). For example, at p. 3, he stated, “As a matter of law, that decision that was made finishes that issue as to whether you were dismissed for cause or not, and I cannot hear it again.” The Deputy Judge concluded with the following reasons:

In my opinion, this matter is res judicata by reason of the decision of the Board of Referees under the Employment Insurance Act. Action dismissed.

[5] In Minott v. O’Shanter Development Co. (1999), 168 D.L.R. (4th) 270 (Ont. C.A.), Laskin J.A. discussed the concept of issue estoppel in the context of a wrongful dismissal action, where a Board of Referees had already determined that the employee was dismissed for misconduct. He concluded that just cause for dismissal at common law is not the same issue as misconduct under the Employment Insurance Act, since the inquiry into just cause for dismissal is broader and requires consideration of a number of factors, including the seriousness of the misconduct, length of service, and prior warnings (at para. 28). A judge who is determining whether issue estoppel applies must look at the factual context in which the statutory standard was applied, in order to determine whether the same issue is being relitigated in the civil action (at para. 32)

[6] Deputy Judge Levine stated that he was bound by the decision of the Board of Referees. In my view, he erred, as Minott makes it clear that he was required to determine whether the Board of Referees had determined an issue that was before him. There was no explicit factual finding by the Board of Referees with respect to any particular act of misconduct, such as the accusation of harassment. At most, the Board of Referees made a finding of credibility and concluded that Mr. Lacambra’s misconduct was the reason for his loss of employment pursuant to ss. 29 and 30 of the Employment Insurance Act. That finding of misconduct was not determinative of the issue of just cause for dismissal in the Small Claims Court action. Moreover, Laskin J.A. in Minott stated that a court has discretion to refuse to apply issue estoppel if to do so would cause unfairness or lead to injustice (at para. 49).

[7] Given the Deputy Judge’s failure to properly apply the principles relating to issue estoppel, the appeal is allowed, and the decision is set aside. While Mr. Lacambra asked that I order that he be paid the amount of his claim, it would be improper for me to do so, as there has been no determination of the issue of just cause. Even though he claims that he is entitled to pay in lieu of notice under the Employment Standards Act, he is not entitled to such pay if he was “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer” (Termination and Severance of Employment Regulation, O. Reg. 288/01, s. 2(1)3.), nor is he entitled to pay in lieu of notice at common law if he was dismissed for just cause. Therefore, this matter is referred back to the Small Claims Court for determination. Mr. Lacambra shall have the cost of his disbursements in this appeal (the cost of filing the appeal, the cost of the transcript and the costs of photocopying), payable by the respondent.

Swinton J.

Released: September 15, 2005