Today employees sometimes seek redress of their employment claims in many different forums at the same time - the courts, before administrative agencies such as under human rights legislation, and at arbitration.
This has generated much discussion about the risks of fighting employment claims on many fronts. There have developed a number of means for ensuring (or at least minimizing) the risks. Among these are:
- Weber motions where you try to have a proceeding moved into the proper forum (this doesn't usually arise in multiple proceeding situations, but in a situation where the employee commenced a proceeding in Court, when it should have been brought under a collective agreement or vice versa)
- Stay proceedings where you try to "stay" one proceeding while the other continues (the state of the law here is unclear. Recently, Justice Pitt commented on this in Cirone v. Park Lawn Company Limited)
- Arguing issue estoppel to either dismiss all or part of the claim (see also Danyluk v. Ainsworth Technologies Inc. and Rasanen v. Rosemount Instruments Ltd.)
Issue estoppel requires the presence of three (3) elements:
- that the same question has been decided;
- that the judicial decision which is said to create the estoppel was final; and,
- that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
The matter was most recently discussed in the case of Kaushal v. Bank of Montreal. This case involved proceedings commenced under the Canada Labour Code and the Canadian Human Rights Act. The complaint under the Canadian Human Rights Act was dismissed. The Adjudicator observed as follows regarding the dismissal:
After investigating the complaint and receiving written submissions from both sides (including Mr. Kaushal’s counsel), the Commission advised in a letter dated December 29, 2008, that it had decided to dismiss the complaint “because the evidence does not support the complainant’s allegation that the respondent discriminated against him based on disability.” The letter advised the parties of their right to seek judicial review of the decision within 30 days; no judicial review application was commenced.
The Complaint under the Human Rights Act did not occur after a hearing but that decision "was nevertheless a final decision made after hearing both parties’ submissions on the very matters between Mr. Kaushal and the bank that he now seeks to have adjudicated in the complaint before me."
The Adjudicator found that the three elements of issue estoppel had been established and dismissed the complaint under the Canada Labour Code.
