Loewen v. Manitoba Teachers' Society,

• Jurisdiction: Manitoba
• Judge: Steel, Monnin and Mainella, JJ.A.
• Neutral Citation: 2015 MBCA 13
• Citation: 2015 MBCA 13,(2015), 315 Man.R.(2d) 123 (CA),380 DLR (4th) 654,315 Man R (2d) 123,380 D.L.R. (4th) 654,315 ManR(2d) 123,315 Man.R.(2d) 123,(2015), 315 ManR(2d) 123 (CA)
• Date: 11 June 2014
• Court: Court of Appeal (Manitoba)

Loewen v. Teachers Soc. (2015), 315 Man.R.(2d) 123 (CA);

      630 W.A.C. 123

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.014

Laverna Loewen (applicant/respondent) v. The Manitoba Teachers' Society (respondent/appellant)

(AI 13-30-07940; 2015 MBCA 13)

Indexed As: Loewen v. Manitoba Teachers' Society

Manitoba Court of Appeal

Steel, Monnin and Mainella, JJ.A.

January 30, 2015.

Summary:

Loewen was employed under a collective agreement with the Manitoba Teachers' Society (MTS). She was rendered disabled in a motor vehicle accident in 1992 and began to receive monthly disability payments under the disability benefits plan provided for in the collective agreement. She also received money from a motor vehicle claim settlement. MTS stopped making disability payments in 2007. MTS claimed that the portion of the settlement attributable to income loss should be credited against MTS's liability for disability payments. The parties submitted the matter to arbitration and agreed to a bifurcated process. The arbitrator ruled on preliminary issues and concluded that MTS was not entitled to deduct settlement money from the disability payments. He did not quantify the award that Loewen was entitled to. MTS applied for leave to appeal the arbitrator's award but later abandoned the application. Loewen's application for an order to enforce the arbitrator's award was dismissed on the basis that the arbitration needed to be finalized before enforcement could be achieved. A second arbitrator was appointed to finalize the dispute because the first arbitrator had been appointed a judge. Loewen raised the issues of res judicata, issue estoppel and abuse of process. The second arbitrator held that these issues did not apply because there had been a lack of finality to the first arbitration. Loewen applied for leave to appeal.

The Manitoba Court of Queen's Bench, in a decision reported at (2011), 263 Man.R.(2d) 242, sent the matter back for the arbitration to be completed before hearing Loewen's application for leave to appeal. The second arbitrator found in favour of MTS.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 287 Man.R.(2d) 141, granted Loewen leave to appeal and found that the second arbitrator had erred in law when he concluded that res judicata, issue estoppel and abuse of process were not applicable. The court restored the first arbitrator's award and ordered MTS to pay Loewen the amount that had been withheld from her ($135,000). MTS applied for leave to appeal.

The Manitoba Court of Appeal, per Monnin, J.A., in a decision reported at [2014] Man.R.(2d) Uned. 3, granted leave to appeal.

The Manitoba Court of Appeal dismissed the appeal.

Administrative Law - Topic 25

General - Abuse of process - Multiplicity of proceedings - [See Estoppel - Topic 383 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Manitoba Court of Appeal stated that "[T]he recent Supreme Court of Canada jurisprudence clearly favours a reasonableness standard of review with respect to most decisions of administrative decision-makers, including those of labour arbitrators and commercial arbitrators. It cautions a reviewing court to be careful in identifying the nature of the question in issue and to be wary about applying a correctness standard where the question involves the decision-maker interpreting its home legislation or where the question involves inextricably intertwined legal and factual issues within the decision-maker's mandate and expertise. I acknowledge that the 'general rule' or 'presumption' of a reasonableness standard is not set in stone. The court has continued to assert that even if the question involves an administrative decision-maker's interpretation of its home statute or the contractual terms of an arbitration agreement, a correctness standard will be applied if it falls within one of the correctness categories identified in Dunsmuir. But, since Dunsmuir, there has been no case arising from the Supreme Court of Canada which identifies a question of general law that is of central importance to the legal system and outside of the expertise of the decision-maker so as to attract a correctness standard. ... Context is central to determining whether the question falls within the category of a question of general law that is of central importance to the legal system as well as outside of the decision-maker's expertise. ...  It may be that an analysis of the enabling statute and the factual matrix will reveal that the application of the doctrines are case- specific and will not have wider ramifications. It may be that the statute contemplates the application of such doctrines or that the decision-maker has the expertise to make these type of decisions. In those cases, the reasonableness standard will prevail." - See paragraphs 47 to 54.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See first Arbitration - Topic 8705 ].

Arbitration - Topic 7803

Judicial review (incl. appeals) - General principles - Nature of review proceeding (incl. standard of review) - [See first Arbitration - Topic 8705 ].

Arbitration - Topic 8307

Judicial review (incl. appeals) - Grounds - General - Abuse of process - [See Estoppel - Topic 383 ].

Arbitration - Topic 8705

Judicial review (incl. appeals) - Practice - Appeals - Standard of review - Loewen was employed under a collective agreement with the Manitoba Teachers' Society (MTS) - She was rendered disabled in a motor vehicle accident in 1992 and began to receive payments under the disability benefits plan provided for in the collective agreement - She also received money from a motor vehicle claim settlement - MTS stopped making disability payments in 2007, claiming that it was entitled to deduct settlement money from the disability payments - An arbitrator concluded that MTS was not entitled to deduct settlement money from the disability payments - The arbitrator did not quantify the award that Loewen was entitled to, and was subsequently appointed to the bench - A second arbitrator was appointed who concluded that the issues of res judicata, issue estoppel and abuse of process did not apply to bar him from rehearing matters already decided by the first arbitrator - The second arbitrator found in favour of MTS - Loewen appealed - The appeal judge held that the standard of review to be applied to the second arbitrator's decision was correctness - The Manitoba Court of Appeal disagreed - The appeal judge should have reviewed the second arbitrator's decision on the standard of reasonableness - See paragraphs 26 to 71.

Arbitration - Topic 8705

Judicial review (incl. appeals) - Practice - Appeals - Standard of review - [See Administrative Law - Topic 3202 ].

Estoppel - Topic 376

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - General principles - The Manitoba Court of Appeal stated that "The doctrine of res judicata reflects the fundamental premise that there must, at some point, be an end to litigation. The broad concept was developed to deal with the problems of unfair relitigation, consistency of result and finality. ...  The doctrine is generally treated as part of the law of estoppel and, while the doctrine of res judicata in its broadest sense applies to the entire matter flowing between the parties, an estoppel can also apply to a single issue which may arise between two parties. Issue estoppel is a form of res judicata. ... The application of issue estoppel to any particular case is a two-step process. First, the tribunal must decide whether that same question has been decided, whether the judicial decision which is said to create the estoppel was final and whether the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised. If the preconditions are not met, then at law, issue estoppel will not apply. If the preconditions are met, the tribunal must still determine whether, as a matter of discretion, issue estoppel ought to be applied." - See paragraphs 28 to 31.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See Estoppel - Topic 383 ].

Estoppel - Topic 383

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In arbitration proceedings - Loewen was employed under a collective agreement with the Manitoba Teachers' Society (MTS) - She was rendered disabled in a motor vehicle accident in 1992 and began to receive payments under the disability benefits plan set out in the collective agreement - She also received money from a motor vehicle claim settlement - MTS stopped making disability payments in 2007, claiming that it was entitled to deduct settlement money from the disability payments - An arbitrator, pursuant to a bifurcated process agreed to by the parties, concluded that MTS was not entitled to deduct settlement money from the disability payments - The arbitrator did not quantify the award that Loewen was entitled to, and was subsequently appointed to the bench - A second arbitrator was appointed who found that the first arbitrator's decision was not final, and therefore the issues of res judicata, issue estoppel and abuse of process did not apply to bar him from rehearing matters already decided by the first arbitrator - The second arbitrator found in favour of MTS - Loewen appealed - The appeal judge restored the first arbitrator's award and ordered MTS to pay Loewen the amount that had been withheld from her - The Manitoba Court of Appeal dismissed MTS' appeal - The first arbitrator's decision was a final decision which was subject to the doctrines of issue estoppel and abuse of process by relitigation - The first arbitrator determined a question which the parties agreed he could determine - The parties fully participated in the process before the first arbitrator with the expectation that if a further hearing on the substantive case was required, it would be heard as defined by the results of the preliminary issues - The second arbitrator's decision was therefore unreasonable - See paragraphs 72 to 108.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided on prior proceedings - [See Estoppel - Topic 383 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 2011 SCC 59, refd to. [para. 18].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, dist. [para. 19].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 24].

Armstrong's Point Association Inc. v. Winnipeg (City) et al. (2013), 303 Man.R.(2d) 56; 600 W.A.C. 56; 2013 MBCA 110, refd to. [para. 24].

Bourgouin v. Rosser (Rural Municipality) et al. (2014), 310 Man.R.(2d) 284; 618 W.A.C. 284; 2014 MBCA 103, refd to. [para. 24].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 26].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 26].

R. v. Mahalingan (R.), [2008] 3 S.C.R. 316; 381 N.R. 199; 243 O.A.C. 199; 2008 SCC 63, refd to. [para. 28].

R. v. Van Rassel, [1990] 1 S.C.R. 225; 105 N.R. 103; 27 Q.A.C. 285, refd to. [para. 28].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 30].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 33].

Anderson et al. v. Manitoba et al. (2010), 262 Man.R.(2d) 96; 507 W.A.C. 96; 2010 MBCA 113, refd to. [para. 37].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 38].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 39].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 43].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 43].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 45].

Donnelly v. Bighorn No. 8 (Municipal District) et al. (2010), 474 A.R. 318; 479 W.A.C. 318; 2010 ABCA 68, refd to. [para. 49].

Sihota v. Edmonton (City) et al. (2013), 542 A.R. 229; 566 W.A.C. 229; 2013 ABCA 43, refd to. [para. 49].

Walsh v. Mobil Oil Canada et al. (2013), 553 A.R. 360; 583 W.A.C. 360; 2013 ABCA 238, refd to. [para. 50].

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 50].

Canadian Union of Public Employees, Local 59 v. Saskatoon (City) (2014), 433 Sask.R. 134; 602 W.A.C. 134; 2014 SKCA 14, refd to. [para. 51].

University of Saskatchewan v. Peng et al. (2014), 446 Sask.R. 50; 621 W.A.C. 50; 2014 SKCA 98, refd to. [para. 51].

Canadian Union of Public Employees, Local 79 v. Toronto (City) et al. (2012), 290 O.A.C. 347; 2012 ONSC 1158 (Div. Ct.), refd to. [para. 52].

Toth Equity Ltd. v. Ottawa (City) (2014), 321 O.A.C. 48; 2014 ONSC 941 (Div. Ct.), refd to. [para. 53].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 56].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 66].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 68].

Manitoba v. Russell Inns Ltd. et al. (2013), 291 Man.R.(2d) 244; 570 W.A.C. 244; 2013 MBCA 46, refd to. [para. 70].

Brewers' Warehousing Co. v. Int'l Union of Brewery, Flour, Cereal, Malt, Yeast, Soft Drink & Distillery Workers of America, Local 278C (1954), 5 L.A.C. 1797 (Ont.), refd to. [para. 78].

Ontario Nurses Association v. St. Michael's Hospital, [2011] O.A.C. Uned. 435; 2011 ONSC 3369, refd to. [para. 80].

Sackville (Town) v. Canadian Union of Public Employees, Local 1188 et al. (2007), 313 N.B.R.(2d) 147; 809 A.P.R. 147; 2007 NBCA 18, refd to. [para. 80].

Canadian Union of Public Employees, Local 4000 v. Aramark Canada Ltd., 2011 ONSC 5640, refd to. [para. 80].

Authors and Works Noticed:

Daly, Paul, The Unfortunate Triumph of Form Over Substance in Canadian Administrative Law (2012), 50 Osgoode Hall L.J. 317, para. 68 [para. 44].

Heckman, Gerald P., Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenges of Legal Centrism (2011), 35:1 Man. L.J. 63, generally [para. 55].

Jones, David Phillip, Recent Developments in Administrative Law (November 2013), p. 1 [para. 41].

Lange, Donald J., The Doctrine of Res Judicata in Canada (2nd Ed. 2004), p. 4 [para. 28].

Lange, Donald J., The Doctrine of Res Judicata in Canada (3rd Ed. 2010), pp. 1 [para. 28]; 95 [para. 83]; 119 [para. 85].

Lewans, Matthew, Deference and Reasonableness Since Dunsmuir (2012), 38 Queen's L.J. 59, paras. 26, 35 [para. 41].

Counsel:

J.A. Kagan and A.D.F. Sain, for the appellant;

R.M. Beamish, for the respondent.

This appeal was heard on June 11, 2014, before Steel, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment for the court on January 30, 2015.