SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-443847
DATE: 20140811

RE: Glenn Cooper, Plaintiff

AND:

580 Christie Street Co-Ownership Inc., Board of Directors for 580 Christie Street Co-Ownership Inc., Caber Management Services Inc. (now operating as Larlyn Property Management Ltd. Mississauga Branch) and John Morielli, Defendants

BEFORE: Mr. Justice Graeme Mew

COUNSEL:
Glenn Cooper, in person

Aaron Rousseau, for the Defendants

HEARD: 8 August 2014 at Toronto

ENDORSEMENT

(Motion to strike under Rule 25.11; Motion for determination of issues before trial under Rules 21.01(1)(a) and (b) and Rule 21.02)

[1] The plaintiff was an employee of the defendant 580 Christie Street Co-Ownership Inc. from 1996 to 2010. He was dismissed on 12 May 2010. On 12 January 2012, he commenced this action. He now brings a motion raising five different issues. These issues may be grouped as:

a. Employment Insurance benefits and issue estoppel;

b. reprisal under the Occupational Health and Safety Act ("OHSA");

c. the Limitations Act, 2002;

d. production or creation of asbestos records; and

e. the Workplace Safety and Insurance Act, 1997 ("WSIA").

[2] As a result of amendments that have now been made to the statement of defence, the defendants no longer assert a statutory bar to recovery by the plaintiff by reason of the WSIA. Accordingly that aspect of the relief sought on this motion was withdrawn.

[3] On the issue of limitation, the plaintiff’s request for relief was not pursued, although he reserved the right to seek summary judgment on any limitation issue.

[4] For the reasons that follow, I would dismiss the balance of the plaintiff’s motion in its entirety.

Employment Insurance

[5] After the plaintiff was terminated, he applied for Employment Insurance ("EI") benefits. An Insurance Agent at Human Resources and Skills Development Canada (Service Canada) examined the plaintiff’s application for benefits and eventually approved it, concluding that he had not engaged in misconduct.

[6] Before reaching a decision on the plaintiff’s entitlement, the agent spoke with the plaintiff a number of times, examined certain documents that he had provided to her and, on one occasion, spoke to John Moriella, the defendants’ property manager.

[7] The Insurance Agent informed the corporate defendant of her decision. Her letter advised, inter alia:

We have made this decision based on the Employment Insurance Act because we consider that the reason(s) for losing his/her employment does not constitute misconduct.

If you disagree with our decision, which is based on the Employment Insurance Act and its Regulations, you have 30 days … to file an appeal in writing.

[8] Because of the Employment Insurance decision, the plaintiff moves for a determination that issue estoppel, or a similar doctrine, binds this court to the conclusion that his termination was without cause, with the result that he should be awarded damages for wrongful dismissal. During the course of argument he acknowledged that his submission had more force in respect of termination pay that he might be entitled to under the Employment Standards Act, R.S.O. 1990, c. E.14 (“ESA”) than in respect of his common law claim for wrongful dismissal. This is because the ESA contains a similar formulation of “misconduct” to the Employment Insurance Act, S.C. 1996, c. 23 and, hence, he argues, it would be an abuse of process for the defendants to be able to re-litigate, in respect of termination pay, an issue already decided by the Serve Canada Insurance Agent.

[9] The doctrine of issue estoppel has three preconditions. A party may not re-litigate an issue decided in prior proceedings where:

a. the prior proceedings answered the same question;

b. the decision in the prior proceedings is final and judicial; and

c. the prior proceedings were between the same parties or those who stand in their place.

Even if these elements are present, the court retains discretion to not apply issue estoppel when its application would work an injustice. The doctrine should not be "applied mechanically to work an injustice." Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, [2013] 2 SCR 125, para. 29-31; Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44, [2001]2 SCR 460, para. 1.

[10] By way of context, as noted by Reilly J. in D’Aoust v Automotive Edge 2003 38391 (ON SC) at para. 49:

In my view the Employment Insurance Act is a highly commendable piece of legislation but with a different purpose, a different objective from that which is to be accomplished by an action for wrongful dismissal or breach of contract.

[11] Having regard to the first precondition, a determination of whether an employee has engaged in misconduct under the Employment Insurance Act and a determination of whether there is just cause for an employee's dismissal raise different considerations: Minott v O’Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321; 168 D.L.R. (4th) 270 (C.A.) per Laskin J.A. at para 28.

[12] In regard to the second precondition, the agent’s decision was only minimally “judicial” in character (the defendants accept, however, that the second precondition would likely be satisfied).

[13] The defendants assert with some vigour, however, that they were not parties to the EI benefits determination and, hence, that the third precondition is not met. Mr. Moriella took one unannounced telephone call from the agent at Service Canada. The defendants were not provided with any reasons for the agent’s determination that the plaintiff’s dismissal did not amount to misconduct (the plaintiff eventually obtained the reasons after making a request under the Privacy Act). In such circumstances, the following findings of Reilly J. in D’Aoust (at para. 48) are on all fours with the present case:

I conclude that the minimal involvement of the defendant in this case to the inquiry of the insurance agent, that is the defendant’s non-obligatory response to a request for information, did not make the defendant a party to the determination by the insurance agent. In Danyluk, the determination of the ESA officer had a direct impact on the defendant. On the case at bar that is not so. Notwithstanding the apparent difference of opinion of Langdon J. in Hough v. The Brunswick Centres Inc. 1997 12326 (ON SC), [1997] 9 C.P.C. (4th) 111 (Ont. Gen. Div.) and Carnwath J. in Bowen v. Ritchie Brothers, which difference I find to be more semantic than real, I would conclude that the defendant was not in any real sense a party to the determination by the insurance agent. Thus I would conclude that the third precondition to the application of the principle of issue estoppel was not met in this case.

[14] The situation might have been different if the corporate defendant had appealed the EI decision: Minott v O’Shanter Development Co. Ltd (supra). But in the vast majority of cases an employer does not challenge an EI decision because there is no direct financial consequence (to the employer) arising from such decisions.

[15] I would therefore conclude that the plaintiff’s claim that issue estoppel fails on the first, third and, possibly, the second precondition. However, even if I am wrong in so concluding, applying the factors discussed in Danyluk, I would in any event hold that the EI benefits determination in this case does not create an issue estoppel or otherwise render the defendants’ plea of just cause an abuse of process. To find otherwise would be to bind the defendants to a determination which was reached without there having been a process that they reasonably should have participated in and in respect of which a sufficient measure of due process was provided for.

[16] Furthermore, as a practical matter the objective of providing an expeditious process for the determination of a claimant’s eligibility for EI benefits would be undermined if employers were obliged to contest each such determination for fear that by not doing so they would be estopped from pleading just cause.

Reprisal

[17] In his statement of claim, the defendant requests:

A declaration that actions taken by the Defendants and their agents in response to the Plaintiff asserting his rights under the Occupational Health and Safety Act...constitute reprisals as described under the Occupational Health and Safety Act. (sec 50). and that these reprisals did cause harm to the Plaintiff.

[18] The plaintiff seeks to strike out paragraph 27 of the statement of defence, which pleads:

The Plaintiff alleges that he suffered reprisals as a result of his attempts to enforce rights under the Occupational Health and Safety Act, R.S.O. 1990. C. O.1 (the "OHSA"), or for making complaints thereunder. To the extent that the Plaintiff suffered any such reprisals. jurisdiction to hear a complaint of reprisal lies exclusively with the Ontario Labour Relations Board ("OLRB") by virtue of section 50 of the OHSA. The OHSA does not create a civil cause of action for reprisal. It permits a complaint to the OLRB. The Defendants plead and rely upon the provisions of the OHSA.

[19] There is nothing improper about paragraph 27. The defendant is not, as the plaintiff appears to assert, pleading that the plaintiff’s claim for wrongful dismissal cannot be heard by this court. Rather, the defendant asserts that the question of whether the plaintiff's termination was a “reprisal” under section 50 of the OHSA would need to be dealt with by the OLRB. The exclusive jurisdiction of the OLRB to deal with such issues is well established: Myrtezaj v. Cintas Canada Ltd., 2008 ONCA 277, para. 34-54; Seneca College v. Bhadauria 1981 29 (SCC), [1981] 2 SCR 181, pp. 194-195.

[20] It was emphasised by Mr. Rousseau in his submissions that the defendants do not say that the plaintiff cannot pursue his claim for wrongful dismissal, whether because his dismissal was in reprisal for his attempts to enforce the OHSA, or otherwise. Indeed, as a practical matter, given that the plaintiff has pleaded bad faith on the part of the defendants in relation to his termination, at trial may well inquire into the defendants' motivations for termination without making declarations about whether the OHSA was breached and awarding damages flowing from such breach.

Asbestos Documents

[21] According to the plaintiff, section 8 of Regulation 278/05 (Designated Substance – Asbestos on Construction Projects and in Buildings and Repair Operations) under the OHSA requires the owner of every building in which material that may be asbestos-containing material has been used to keep records containing certain information as set out in section 8(4) of the Regulation. The section provides that such records are to be shared with occupiers of the asbestos locations in the building and with workers who may do work in such locations.

[22] The plaintiff has written to the defendants asking for the records that have been kept (while at the same time asserting that such records have not been kept by the defendants). He has made a similar request for the records via the Ministry of Labour.

[23] The defendants say that the appropriate way for the plaintiff to obtain any records (or information concerning the failure to maintain such records) is through the discovery process in this action. They also say that as the plaintiff is no longer a “worker” at the subject premises he cannot now invoke the regulation as a basis for compelling production of records or information.

[24] As a practical matter the defendants could probably have avoided this part of the motion by simply providing to the plaintiff at this juncture the documents and information which they will be required to provide through the discovery process in just a matter of weeks from now. But, strictly speaking, they do not have to yet, and I therefore decline to order them to do so.

Costs

[25] The defendants provided a costs outline seeking partial indemnity costs, if successful, of $14,312.71 (inclusive of disbursements and HST).

[26] The plaintiff has not obtained any of the relief which he sought. He represents himself. He made out an articulate case on his own behalf. His submissions were courteous and in all respects carefully presented. Having previously been on the receiving end of an unsuccessful security for costs motion brought by the defendants, the plaintiff could be forgiven for not conceding points which an experienced lawyer would probably have yielded on.

[27] That said, the plaintiff’s motion did provoke the defendants to amend their defence to withdraw their reliance on the WSIA as a bar to the plaintiff’s claim. So to that extent, the plaintiff has enjoyed some success.

[28] Furthermore, on the issue of disclosure, the defendants chose to take a technically correct rather than a pragmatic approach which could have limited the scope of the motion.

[29] It is appropriate that the plaintiff assumes some responsibility for the costs incurred by the defendants responding to his motion. However, having regard to the overarching principle of proportionality (Rule 1.04(1.1) of the Rules of Civil Procedure), the factors set out in rule 57.01(1) and the principle that the court should fix an amount that is fair and reasonable to the parties against whom costs are awarded rather than an amount fixed by reference the actual costs incurred by the successful litigant (Boucher v. Public Accountants Council of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 26), I would fix costs of the motion, payable by the plaintiff to the defendants within 30 days of the release of this endorsement, in the amount of $3,000 (inclusive of disbursements and HST).

Mew J.

Date: 11 August 2014