COURT OF APPEAL FOR ONTARIO

DATE: 20000502

DOCKET: C30774

RE: YVONNE MONTAGUE, ASQUITTE MONTAGUE, ANDREA
MONTAGUE, YVETTE MONTAGUE, BRUCE MONTAGUE, JARVON
SCHURTON, by his Litigation Guardian, ANDREA
MONTAGUE and TIANA SCHURTON, by her Litigation
Guardian, ANDREA MONTAGUE (Plaintiffs/Appellants)
and BANK OF NOVA SCOTIA (Defendant/Respondent)

BEFORE: MORDEN, DOHERTY AND LASKIN JJ. A.

COUNSEL: Yvonne Montague, plaintiff in person
For the plaintiffs/appellants

Elizabeth M. Stewart
For the defendant/respondent

HEARD: April 26, 2000

On appeal from the judgment of Benotto J. dated October 5, 1998.

E N D O R S E M E N T

[1] The plaintiff, Yvonne Montague, appeals from an order of
Benotto J. dismissing that part of her claim in this action which
related to her alleged wrongful dismissal by the defendant. The
order was made on the defendant’s motion, which was heard by
Benotto J. at the opening of the trial.

[2] The ground set forth in the notice of the motion was that
the action was frivolous, vexatious, and an abuse of process.
The basis on which the defendant alleged the action was
frivolous, vexatious, and abuse of process was not stated. It
appears from the reasons of Benotto J. that the basis of the
motion was issue estoppel – specifically that the issues raised
by the plaintiff in her wrongful dismissal claim had been decided
by the Canadian Human Rights Commission.

[3] We note that there was no reference in the statement of
defence to the proceedings for the Canadian Human Rights
Commission or to its decision as there should have been if the
decision of the Commission was sought to be relied upon as a
defence to this part of the plaintiffs’ claim.

[4] Even so, giving the decision of the Commission, which is not
expressed in the clearest terms, the most generous interpretation
possible in favour of the defendant, we do not think that the
Commission decided “the same question” as that which was raised
in the action. The Commission may have decided that the
plaintiff was not unreasonably dismissed by the defendant on the
basis of her disability, but it did not adjudicate upon the issue
also raised by the plaintiff in her statement of claim that she
was dismissed unreasonably in that the defendant acted
precipitously and in bad faith in terminating her employment.

[5] Accordingly, the appeal is allowed and the order of Benotto
J. is set aside. We make no order as to costs.

“J.W. Morden J.A.”
“Doherty J.A.”
“J.I. Laskin J.A.”