Wednesday, April 10, 2013

Ontario's Fixation on Finality Unfairly Hurting Employees

     Once upon a time a dismissed employee who was not provided pay in lieu of notice had a right to file a complaint with the Employment Standards Branch of the Ontario Ministry of Labour and later bring a civil action for wrongful dismissal. In the human rights area a unionized employee whose rights under the Human Rights Code were violated by the employer or bargaining agent could find refuge at the Ontario Human Rights Commission.  Those rights or avenues for redress have been abolished. 

     It all started with a judgement by the Court of Appeal for Ontario - Rasanen  v.  Rosemount Instruments Limited (1993) (Ont.C.A.)  In Rasenen (supra) the employer was restructuring its operation and offered Mr. Rasenen two alternatives - a relocation to Calgary at the same status and pay or stay in Toronto in a lower status job with potentially higher pay - as the second job involved some commissions.  Mr. Rasenen rejected both options and resigned claiming constructive dismissal.  He then filed a claim for termination pay with the Ministry of Labour.  That claim ultimately went to a hearing where the Adjudicator ruled against him finding that he was not entitled to termination or severance pay because he resigned. 

     The majority in Rasenen (supra)  - Madame Justice Abella and Associate Chief Justice Morden, as he was then, ruled to dismiss the plaintiff, Mr. Rasanen's case, on the basis of issue estoppel.  Mr. Justice Carthy, who also dismissed the appeal, determined that issue estoppel did not apply in the circumstances but found that in the circumstances of the case the plaintiff was not contructively dismissed.  Mr. Justice Carthy's ruling and analysis rejecting the application of issue estoppel mirrors the fairness concerns expressed by the Supreme Court of Canada in Penner  v.  Niagara Region Police Service. 

     The Rasenen ruling put a clear chill in employees to make use of the remedial legislation which their elected officials had passed to provide them with basic terms and conditions of employment.  Fewer and fewer employees looked to the Ministry of Labour and elected to sue for wrongful dismissal.  Surprisingly, the Supreme Court of Canada makes note of this phenomenon in Penner  v.  Niagara Region Police Service.

The Codification of Issue Estoppel:

Employment Standards Act

     As if Rasanen was not bad enough the Ontario Government went on to amend the Employment Standards Act and the Human Rights Code to incorporate issue estoppel-type provisions.  The Employment Standards Act actually prohibits employees who bring a claim for termination pay etc. under the Act to bring a civil action seeking a remedy for the same dismissal.(see s.97(2))  In addition, the Act expressly provides that once an employee brings a claim under the Act they can only withdraw same within two weeks of the filing of the complaint. (see s.97(4))

Human Rights Code

     The amendments to the Human Rights Code incorporating issue estoppel-type provisions appear to be motivated by a desire for finality in legal proceedings.  Whether intentional or otherwise they appear to be depriving a significant group of workers their rights in both the collective bargaining forum and their stututory rights under the Human Rights Code.  Collective agreements are between a bargaining agent/union and an employer.  Accordingly, when a union and an employer make a "sweet-heart deal" to "resolve all of an employees grievances" they do not typically need the workers consent.  The worker, whose grievance has not been dealt with, then tries to bring a human rights complaint and is confronted by the following statutory provision:

"s.45.1 - The Tribunal may, in whole or in part, dismiss with an appllication in accordance with its Rules, if in its opinion, another proceeding has appropriately dealt with in the substance of the application."

     The legal effect of this statutory provision for workers covered by collective agreements is to render what ever individual rights they may have under the Human Rights Code purely illusory.  They have rights on paper but not in reality.  Our lawmakers have made the employer and the unions the gatekeepers of those rights.  They are at liberty to dispense them as they see fit.  Put another way - a worker with a human rights-type grievance has no rights that an employer or a union must respect and good luck taking the issue to the Divisional Court.  I invite readers to review the decisions of the HRTO involving unionized workers and their human rights complaints and any judicial review applications on this subject at our Divisional Court. The consistency of the dismissal of these complaints is troubling to say the least.




Sunday, April 7, 2013

Issue Estoppel, Judicial Discretion and Access to Justice

    In this two part post I wish to shed some light on what appears to me to be a growing trend - the application of the doctrine of issue estoppel and judicial discretion which has the effect of denying individuals access to our courts.  In the first post I will look at the Supreme Court of Canada's recent decision in Penner   v.  Niagara Region Police Service with a view to illustrating the ideological ridgidity which more often than not renders the rights of the majority of Ontarians illusory when it comes to asserting their rights against police defendants.  In the second post I will illustrate how the Ontario Legislature has implemented issue-estoppel-type statutory enactments to the Employment Standards Act and the Human Rights Code which have the effect of denying a significant quantity of workers access to our courts.

     In Penner   v.  Niagara Region Police Service et al the Supreme Court of Canada recently ruled that the Ontario Court of Appeal erred in law in exercising its discretion when it upheld the dismissal of Mr. Penner's action on the basis of issue estoppel arising from the dismissal of his misconduct complaint under the Police Services Act.  The Court of Appeal applied the recognized test from Danyluk   v.  Ainesworth Technologies [2001] 2 S.C.R. 462; Minott   v.  O'Shanter (1999) 42 O.R. (3d) 321 (Ont.C.A.) and determined that the Police Services Act misconduct hearing and the action involved - 1.  the same question (parties agreed that the subject decision was final) and 3. same parties and found that the lower court had properly exercised its discretion in dismissing the action based on issue estoppel.  The Court of Appeal found that the motions judge erred in law in failing to consider the question of why it was not appropropriate to not apply issue estoppel in the case and went on to deal with this issue.

     The Court of Appeal - in applying a narrow and simplistic analysis as distinct from the broad and purpose-driven analysis employed by the Supreme Court of Canada - effectively denied Mr. Penner access to a remedy in the courts.  The key difference in the approach employed by the two levels of courts lies in the level of scrutiny they each subjected the Danyluk (supra) requirements to.  Unlike the Court of Appeal, the Supreme Court of Canada took the additional step and considered the nature and purpose of each legislative scheme along with the reasonable expectations of the parties.  In applying this approach the Supreme Court of Canada found that the Court of Appeal erred in the exercise of its discretion in appplying issue estoppel to the facts of this case on two grounds.  The first is found in the following quote from the Court of Appeal judgment on the issue of Mr. Penner's financial stake in the discipline proceeding:

Financial stake in the
Disciplinary Hearing:

     "This is an important consideration weighing against applying issue estoppel, but its
strength is diminished by the potential indirect benefit to Mr. Penner from the disciplinary proceedings.  If,  for example, the hearing officer had found that the two police officers did not have reasonable and probable grounds to arrest Mr. Penner or used excessive force on him, those findings would likely have estopped the officers from asserting otherwise in Mr. Penner's civil action.  In other words, issue estoppel works both ways." 

     The Supreme Court found that this analysis was flawed since the the Police Services Act requires misconduct to be "proved on clear and convincing evidence" while Mr. Penner's civil case must be proved on the lower balance of probabilities standard.  Accordingly, it did not follow that an acquittal under the higher standard could not lead to a finding of liability on the lower civil standard in Mr. Penner's civil action.

Role of the Chief of Police:

     Surprisingly, the Supreme Court went on to identify an additional ground which was not before the Court of Appeal in support of not applying the doctrine of issue estoppel in this case.  The Court noted that under the public complaints process of the PSA at the relevant time the Chief of Police appointed the investigator, the prosecutor and the hearing officer.  The Court reasoned that there was an inherent unfairness in employing the adverse decision from a discipline hearing held in these circumstances to absolve the Chief of Police and others from civil liability.  This is what the majority said on this point:

     [66] "Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the Chief and his police service from civil liability.  In our view, applying issue estoppel here is a serious afront to basic principles of fairness."


     Justice must always be dispensed with a fair and even hand.  Anything less is not justice at all.  The exercise of judicial discretion like justice must always be exercised with a fair and even hand.  Depriving an individual access to our courts who seeks redress against the police for civil and constitutional wrongs allegedly committed against that individual simply because an inferior tribunal with a very different statutory function, purpose and level of proof dismissed his complaint is just plain wrong - fairness must always trump finality.  I believe this is precisely what the late Mr. Justice Bora Laskin meant when he said that "law without compassion is void."