In MacPherson v R. Khattra R. Krim, J. Dhillon and J. Bhullar Professional Corporation, 2022 AHRC 72, an interim decision by the Alberta Human Rights Tribunal, the Tribunal refused to dismiss a complainant on the basis of Res Judicata, Issue Estoppel or Abuse of Process as requested by the respondent.
Facts
The following were the relevant facts summarized by the Alberta Human Rights Tribunal:
- Cindy MacPherson (the “Complainant”), alleged that her employer R. Khattra R. Krim J. Dhillon and J. Bhullar Professional Corporation (the “Respondent”) discriminated against her when it terminated her employment and that her family status was a factor in that decision (the “Complaint”).
- Prior to filing the Complaint, the Complainant had filed a complaint with Alberta Employment Standards for compensation from the Respondent for terminating her employment while she was on a family protected leave (the “Employment Standards Complaint”).
- The Employment Standards Officer determined that the Respondent terminated the Complainant’s employment while she was on a Family Protected Leave and found that the Respondent owed the complainant termination pay in the sum of $595.57 (the “Employment Standards Decision”).
- The Respondent took the position that the issue of the complainant’s termination while on a family protected leave had already been appropriately dealt with in the Employment Standards Complaint. As a result, the Respondent sought an order dismissing the Complaint, pursuant to the principles of res judicata, issue estoppel, and abuse of process.
Analysis / Conclusion
The Tribunal confirmed that the Employment Standards and the Tribunal have concurrent jurisdiction, subject to the principles of res judicata and the doctrine of issue estoppel.
The doctrines of res judicata, issue estoppel, and abuse of process, including the rule against collateral attack, seek to prevent the injustice that can occur from permitting the re-litigation of an issue that has been decided as between the same parties in another forum; to prevent duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings, and to bring finality in litigation.
The Tribunal also confirmed its acceptance that the equitable principles of issue estoppel, res judicata, and the prevention of collateral attack are available to the Director and the Tribunal and should be applied in appropriate circumstances.
The Tribunal held that the issue to be considered in the Complaint was different from the issue raised in the Employment Standards Complaint. The issue that the Employment Standards Officer dealt with, was the issue of family leave under the Personal and Family Responsibility Leave Regulations. While there were overlaps in the facts giving rise to the Employment Standards Complaint and the Complaint, the Tribunal found that the Employment Standards Officer made no findings with respect to the complainant’s family status or whether the events culminating in the termination of the complainant’s employment amounted to discrimination. Meanwhile, the true nature of the Complaint was whether the Complainant faced discrimination because of her family status, which is a protected ground under the Act, and whether the Respondent made efforts to accommodate the complainant to the point of undue hardship.
The Tribunal also noted that the Employment Standards Officer could not grant appropriate remedies for discrimination. Under the Employment Standard Code, the Director can only direct an employer to reinstate the employee, compensate the employee by making a termination pay, or to do both. Further, the amount of termination pay that the Director can award is restricted to the amount provided for in the Employment Standard Code based on the length of employment Whereas the amount of damages the Tribunal can award is not restricted.
The Tribunal also found that none of the concerns that the doctrine of abuse of process seeks to prevent were present in this case. It found that the Director’s contention that the quantum awarded under the Employment Standards Complaint was not adequate, did not amount to a collateral attack on the Employment Standards Decision. Also, if there is merit to the Complaint, the compensation received by the complainant under the Employment Standards Complaint would be considered in assessing any damages due to the Complainant, to avoid overlap or double recovery of damages.
Lastly, the Tribunal declined to apply its discretion to bar the Complaint from moving forward and confirmed that simply abiding by the minimal standards under the Code and applicable regulations does not automatically shield employers from all legal liabilities.
My Take
Although the Complainant in this decision was successful it is still serves as a good reminder to employees about making an informed decision when submitting complaints to different decision makers and making sure that in doing so, they do not inadvertently preclude themselves of potential remedies under the Alberta Human Rights Act. There can be some advantages of making complaints in multiple different forums, but there are potential serious risks as well. There is no ability to control the reasoning used by the decision-maker in whichever decision is decided first, and if that first decision-maker crosses into matters that are central to the complaint in the second forum, the risks that the complainant will not be permitted to proceed are real.
