ESC Decision Causes Issue Estoppel In Alberta Human Rights

In Miciak v Sarah McLachlan School of Music, 2024 AHRC 114 (Gill) the Alberta Human Rights Tribunal made an interim decision that the complainant’s employment had been terminated, on the basis that this issue had already been determined in a separate Employment Standards complaint.

The legal term for what happened is “issue estoppel”.  Essentially issue estoppel means that if another legal forum has already decided a fact or issue, it is decided for disputes outside of that forum as well.

This case is important because it illustrates one of the potential effects of litigating in multiple forums over the same or similar facts.

Facts

The following were some of the pertinent facts summarized by the AHRT:

• The complainant Laurelle Miciak had filed several complaints against the Sarah McLachlan School of Music in different legal forums, but the two most significant were: Alberta Employment Standards, and Alberta Human Rights
• The Employment Standards complaint was considered first. There, she argued she had been dismissed, whereas the employer argued she had resigned
• The Employment Standards Commission found that she had been constructively dismissed and ordered termination pay. The employer appealed that to the Alberta Labour Relations Board (ALRB)
• The ALRB appeal decision was that the complainant did not resign, but was terminated without cause due to shortage of work, and was owed termination pay. The ALRB did not need to decide if she was constructively dismissed
• In the Alberta Human Rights complaint, the employer was again trying to take the position that the complainant had resigned and was not dismissed
• Legal counsel for the Director of the Alberta Human Rights Commission made an application to the AHRT asking the tribunal to direct that the issue of termination was already decided in another forum and that the employer could not now argue otherwise in Human Rights

Analysis / Conclusion

The Director’s application was based on a legal principle called “issue estoppel”.  The AHRT described the initial test for using issue estoppel as follows:

[12] The Supreme Court of Canada set out the requirements for the doctrine of issue estoppel in Danyluk v Ainsworth Technologies Inc., as follows:

•       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 were the same as the parties to the proceedings in which the estoppel is raised.

The AHRT found that the same issue was that had been decided by the ESC was being considered – whether she had been dismissed or not – so the initial requirements of issue estoppel were met.  The AHRT went on to note that it still had discretion to refuse to apply issue estoppel, based on the following:

[15] The Supreme Court of Canada further stated in Danyluk that even where the above requirements are met, a decision-maker may decline to apply issue estoppel. The purpose of this discretion is in order to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. The court set out the following list of non-exhaustive factors to consider whether to apply this discretion:

•       the wording of the statute from which the power to issue the administrative order derives;

•       the purpose of the administrative tribunal’s enabling legislation;

•       the availability of an appeal;

•       the procedural safeguards available to the parties in the administrative procedure;

•       the expertise of the administrative decision maker;

•       the circumstances giving rise to the prior administrative proceedings; and

•       whether the application of issue estoppel in the particular case would work an injustice.

The employer argued that decision under the ESC was only that the complainant was terminated for the purposes of the ESC, not in a general sense.  The ESC itself also states that the ESC does not have exclusive jurisdiction to decide issues of termination of employment.

The AHRT found that the ALRB as ESC appeal body routinely dealt with termination issues, and the employer had not shown there would be a different test applied in human rights.  In addition, the AHRT found it significant that the employer did not seek judicial review of the ALRB decision. 

Ultimately, the AHRT decided it was an appropriate case to apply issue estoppel and prevent the employer from taking the position that the complainant had resigned again. 

The employer had as its alternative argument that, if the AHRT decided to apply issue estoppel, it should adopt the whole reasoning of the ALRB – that the complainant’s employment was terminated for shortage of work.  The AHRT agreed to this request.

My Take

This case is interesting, and many would consider the result to be fair and logical. 

However, I personally think this decision could have gone either way.  The employer’s arguments about the purpose and non-exclusive nature of a decision under the ESC make some sense to me and I think that using a decision about termination of employment from one statutory forum in another statutory forum is potentially problematic.

To me, this decision serves as a warning to lawyers and parties about the potential consequences of decisions in different forums around the same set of circumstances.  An example of how this can be problematic is when a lawyer represents their client in one forum but the client wants to represent themselves in another forum.  If the client does poorly in the other forum, that could impact the strength of the case in the forum where they have legal counsel.  

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.