Minott v. O'Shanter Dev. Co., (1999) 117 O.A.C. 1 (CA)

• Judge: Carthy, Laskin and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 19, 1998
• Jurisdiction: Ontario
• Citations: (1999), 117 O.A.C. 1 (CA)

Minott v. O'Shanter Dev. Co. (1999), 117 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. FE.007

Timothy Bartholomew Minott (plaintiff) v. O'Shanter Development Company Ltd. (defendant/appellant)

(C22056)

Indexed As: Minott v. O'Shanter Development Co.

Ontario Court of Appeal

Carthy, Laskin and Goudge, JJ.A.

January 7, 1999.

Summary:

The Canada Employment and Immigration Commission advised an employee that he was disqualified from receiving unemploy­ment benefits for six weeks because he had lost his job by reason of his own miscon­duct. The employee appealed. The Board of Referees upheld the finding of misconduct, but reduced the period of disqualification to three weeks. The employee sued his former employer for wrongful dismissal. The em­ployer moved for dismissal of the action on the ground of issue estoppel or res judicata arising from the decision of the Board of Referees.

The Ontario Court (General Division), in a decision reported 25 O.T.C. 39, dismissed the motion. The matter went to trial.

The Ontario Court (General Division) held that the employee was wrongfully dismissed and awarded him damages equivalent to 13 months' salary. The employer appealed.

The Ontario Court of Appeal dismissed the appeal.

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceed­ings - Parties - Minott applied for unem­ploy­ment insurance benefits - Minott's former employer filed a written statement in re­sponse to the application, but declined to participate in an appeal hearing before a Board of Referees - The Board held that Minott had lost his job because of his own misconduct - Minott subsequently sued for wrongful dismissal - The employer asserted that the Board's decision gave rise to issue estoppel - The Ontario Court of appeal rejected the assertion where neither the issues nor the parties were the same - The court considered the employer's de­gree of participation in the prior proceed­ings, in determining that the employer had not been a party for the purposes of prom­iss­ory estoppel - Alternatively, the court would have declined to apply issue estoppel because of concerns over unfair­ness and injustice - See paragraphs 15 to 32 and 39 to 60.

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - The Ontario Court of Appeal rejected the notion of nonmutual issue estoppel which had its roots in American jurisprudence and permitted a judgment to operate in favour of a nonparty - See paragraph 48.

Estoppel - Topic 379.1

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceed­ings - Cause of action estoppel v. issue estoppel - The Ontario Court of Appeal stated that "[i]ssue estoppel prevents the relitigation of an issue that a court or tribunal has de­cided in a previous pro­ceeding. In this sense issue estoppel forms part of the broader principle of res judicata ... Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding. ... Issue estoppel is narrower than cause of action estoppel. It prevents a party from relitigating an issue already decided in an earlier proceed­ing, even if the causes of action in the two proceedings differ." - See paragraph 16.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - [See first Estoppel - Topic 378 ].

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - The Ontario Court of Appeal stated that "[i]ssue estoppel first requires that the issue in the subsequent litigation be the same as the issue decided in the previous litigation and that 'its de­termination must have been necessary to the result in the litigation' ... In other words, issues estoppel covers fundamental issues determined in the first proceeding, issues that were essential to the decision. Issue estoppel applies to issues of fact or of law or of mixed fact and law." - See paragraph 23.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - Minott appealed a decision respecting his application for unemployment insurance benefits - The Board of Referees held that Minott had lost his job because of misconduct and determined an appropriate period of dis­qualification - Minott subsequently sued his former employer for wrongful dis­missal - The employer asserted that the matter was issue estoppel - The Ontario Court of Appeal rejected the assertion, but held that the second requirement of issue estoppel was satisfied (i.e., a final judicial decision) - Although the Board's decision could have been appealed to an umpire, it was final where the Board could not have revised or rescinded it - The decision was judicial, where Minott knew the case he had to meet and was given a reasonable opportunity to meet it and state his own case - Moreover, the board was carrying out a judicial function - See paragraphs 33 to 38.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - The Ontario Court of Appeal stated that "[i]ssue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the public interest in the finality of litigation with the private interest in achieving justice between litigants. Sometimes these two interests will be in conflict, or, at least there will be tension between them. Judi­cial discretion is required to achieve prac­tical justice without undermining the prin­ciples on which issue estoppel is founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is pre­clud­ed from relitigating an issue." - See para­graph 50.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - The Ontario Court of Appeal stated that the application of issue estoppel to the findings of an administra­tive tribunal to foreclose a subsequent civil proceeding could be unfair or work an injustice - The court proceeded to set out concerns over applying issue estoppel to findings made in proceedings under the Employment Insurance Act - See para­graphs 52 to 59.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See first Estoppel - Topic 378 and sec­ond, third, fourth and fifth Estoppel - Topic 380 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See first Estoppel - Topic 378 and third and fifth Estoppel - Topic 380 ].

Estoppel - Topic 430

Estoppel by record (res judicata) - Matters precluding estoppel - Public policy - [See fourth Estoppel - Topic 380 ].

Master and Servant - Topic 7550

Dismissal of employees - Grounds - Cause or just cause defined - The Ontario Court of Appeal stated that "... misconduct under the [Employment Insurance] Act cannot automatically be equated with just cause for dismissal at common law. ... Just cause for dismissal at common law demands a broader inquiry than the search for miscon­duct under the Act. To decide whether an employer had just cause for dismissal, a court may have to take into account a host of considerations: the seri­ousness of the employee's misconduct; whether the mis­conduct was an isolated incident; whether the employee received warnings; the em­ployee's length of service; how other employees were disciplined for similar incidents; and any mitigating con­sidera­tions. Misconduct under the Act seems to focus more narrowly on the employee's actions that led to the dis­missal." - See paragraphs 27, 28.

Master and Servant - Topic 7560

Dismissal of employees - Grounds - Ab­senteeism or tardiness - Minott, an em­ployee of 11 years, decided to use bonds purchased through payroll deduc­tions to purchase a car - He mistakenly believed that he had permission to take a Thursday off work to pick up the car - He could not complete the purchase as the employer had deducted money from the bonds for repay­ment of a loan - Minott did not return to work until the following Monday - On his return, his manager suspended him for two days (Monday and Tuesday) - Minott believed that his sus­pension related to Tuesday and Wednesday - On Wednesday, the manager fired Minott without warning - The Ontario Court of Appeal held that, even if the refusal to report to work on Wednesday was wilful, it did not elevate conduct that warranted a two day suspen­sion into just cause for dismissal - Further, even if the misconduct for the entire period was con­sidered, dismissal was not justified - See paragraphs 5 to 14.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - Reasonable notice - What consti­tutes - A 43 year old maintenance em­ployee was dismissed after 11 years' em­ployment - Few jobs were available in the industry - He sued for wrongful dis­missal -The trial judge held that the em­ployee was entitled to damages in an amount equal to 13 months' employment in lieu of notice and refused to reduce the period on the basis that the employee was not an execu­tive - The trial judge relied on the "rule of thumb" that an employee was entitled to one month's notice for every year worked - The Ontario Court of Ap­peal held that the trial judge erred in not distinguishing between executive and nonexecutive em­ployees and in using the "rule of thumb" as a starting point - How­ever, the court re­fused to interfere with the award where, although it was on the high end of an acceptable range, it was not un­reasonable -See paragraphs 61 to 77.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dis­missal - Reasonable notice - Consider­ations affecting - Character of employ­ment - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 8007.1

Dismissal without cause - Notice of dis­missal - Reasonable notice - Management vs. non-management employees - [See Master and Servant - Topic 8000 ].

Cases Noticed:

Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 17 O.R.(3d) 267 (C.A.), refd to. [para. 3, footnote 2].

Angle v. Minister of National Revenue (1974), 2 N.R. 397; 47 D.L.R.(3d) 544 (S.C.C.), refd to. [para. 17, footnote 5].

Hough v. Brunswick Centres (1997), 28 C.C.E.L.(2d) 36 (Ont. Gen. Div.), refd to. [para. 24, footnote 12].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 25, footnote 13].

Gottardo Properties (Dome) Inc. et al. v. Regional Assessment Commissioner, Region No. 9 et al. (1998), 111 O.A.C. 272; 162 D.L.R.(4th) 574 (C.A.), refd to. [para. 25, footnote 13].

Fakhari v. Canada (Attorney General) (1996), 197 N.R. 300 (F.C.A.), refd to. [para. 26, footnote 14].

Canada (Attorney General) v. Tucker, [1986] 2 F.C. 329; 66 N.R. 1 (F.C.A.), refd to. [para. 27, footnote 15].

Canada (Attorney General) v. Jewell (1994), 175 N.R. 350 (F.C.A.), refd to. [para. 27, footnote 15].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489; [1990] 3 W.W.R. 289, refd to. [para. 35, footnote 20].

MacDonald Tobacco Inc. v. Canada (Employment and Immigration Commis­sion) et al., [1981] 1 S.C.R. 401; 36 N.R. 519; 121 D.L.R.(3d) 546, refd to. [para. 37, footnote 21].

Schweneke v. Ontario (1996), 2 O.T.C. 183; 1 C.P.C.(4th) 35 (Gen. Div.), refd to. [para. 43, footnote 25].

Randhawa v. Everest & Jennings Canadian Ltd. (1996), 7 O.T.C. 28; 22 C.C.E.L.(2d) 19 (Gen. Div.), refd to. [para. 43, footnote 26].

Wood v. Nor-Sham (Markham) Hotels Inc. (1998), 35 C.C.E.L.(2d) 206 (Ont. Gen. Div.), refd to. [para. 44, footnote 28].

Australian Securities Commission v. Marlborough Gold Mines Ltd. (1993), 177 C.L.R. 485 (Aust. H.C.), refd to. [para. 46, footnote 31].

Carl-Zeiss-Stiftung v. Rayner & Keeler; Rayner & Keller v. Courts, [1967] 1 A.C. 853 (H.L.), refd to. [para. 49, foot­note 35].

Arnold v. National Westminster Bank, [1991] 3 All E.R. 41 (H.L.), refd to. [para. 51, footnote 36].

Toronto Police Services Board and Toronto Police Association, Re (1998), 71 L.A.C.(4th) 289, refd to. [para. 59, footnote 44].

Isaacs v. MHG International Ltd. (1984), 3 O.A.C. 301; 45 O.R.(2d) 693 (C.A.), refd to. [para. 62, footnote 45].

Cronk v. Canadian General Insurance Co. (1994), 19 O.R.(3d) 515 (Gen. Div.), revd. (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), consd. [para. 63, footnotes 46, 47].

Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), apprvd. [para. 65, footnote 48].

Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 66, footnote 49].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 66, footnote 49].

Bullen v. Procter and Redfern Ltd. (1996), 20 C.C.E.L.(2d) 36 (Ont. Gen. Div.), refd to. [para. 69, footnote 50].

McKay v. Eaton Yale Ltd. (1996), 31 O.R.(3d) 216 (Gen. Div.), refd to. [para. 69, footnote 50].

Authors and Works Noticed:

American Law Institute, Restatement of the Law (Second), Judgments (2nd Ed. 1982), para. 28 [para. 57, footnote 42]; s. 83(2)(e) [para. 55, footnote 38]; p. 279 [para. 56, footnote 40].

England, Christie and Christie, Employ­ment Law in Canada (3rd Ed. 1998), p. 14.93 [para. 76, footnote 57].

Fisher, Barry, Measuring the Rule of Thumb in Wrongful Dismissal Cases, 31 C.C.E.L.(2d) 311, p. 317 [para. 74, foot­notes 53, 54, 55].

Goodman, Jeffrey and Murray, Jeff, Ties that Bind at Common Law: Issue Estop­pel, Employment Standards and Unem­ployment Insurance Adjudication (1997), 24 C.C.E.L.(2d) 291, generally [para. 45, footnote 30].

Grosman, N., No Estoppel (1997), 7 E.M.P. Bul. 2, generally [para. 54, foot­note 37].

Harris, Wrongful Dismissal (Looseleaf), s. 4.36(g) [para. 73, footnote 52].

Holmestead and Watson, Ontario Civil Procedure (Looseleaf), vol. 2, ss. 21, § 17[3] [para. 17, footnote 4]; 21, § 23[1] [para. 23, footnote 11]; 21, § 24 [para. 48, footnote 33]; 21.17ff [para. 16, foot­note 3].

Levitt, Howard A., The Law of Dismissal in Canada (2nd Ed. 1992), § 808.11 [para. 73, footnote 52].

Rudner, J.A., The 1998 Annotated Employment Insurance Statutes (1997), p. 607 [para. 27, footnote 15].

Spencer, Bower, Turner and Handley, The Doctrine of Res Judicata (3rd Ed. 1996), p. 76 [para. 33, footnote 19]; pp. 110-111 [para. 48, footnote 34].

Counsel:

Robert A. Maxwell, for the appellant;

James Morton and Shelly Brown, for the respondent.

Carthy, Laskin and Goudge, JJ.A., of the Ontario Court of Appeal, heard this appeal on October 19, 1998. Laskin, J.A., delivered the following judgment for the court on January 7, 1999.