Schweneke v. Ontario (Minister of Education) et al., (2000) 130 O.A.C. 93 (CA)

• Judge: Carthy, Doherty and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 2000
• Jurisdiction: Ontario
• Citations: (2000), 130 O.A.C. 93 (CA);2000 CanLII 5655 (NS CA);2000 CanLII 5655 (ON CA);47 OR (3d) 97;[2000] OJ No 298 (QL);130 OAC 93;41 CPC (4th) 237;48 CCEL (2d) 306;94 ACWS (3d) 927

Schweneke v. Ont. (2000), 130 O.A.C. 93 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. FE.033

Uwe Schweneke (plaintiff/appellant) v. Her Majesty the Queen in the Right of Ontario, Ministry of Education, Ministry of Intergovernmental Affairs, Attorney General for Ontario, G.R. Taylor, Douglas A. Swackhammer, Craig H. Slater, Horst Intscher, Kim Twohig and Alan Wolfish (defendants/respondents)

(C24710)

Indexed As: Schweneke v. Ontario (Minister of Education) et al.

Ontario Court of Appeal

Carthy, Doherty and Feldman, JJ.A.

February 10, 2000.

Summary:

The plaintiff sued his former employer for constructive wrongful dismissal. The plaintiff had earlier been discharged, after a prelim­inary inquiry, of charges relating to his conduct that allegedly led to his dismissal. Also, the plaintiff's earlier claim for unem­ployment insurance benefits had been denied when an umpire held that there had been just cause for the plaintiff's dismissal. The em­ployer invoked issue estoppel on the basis of the umpire's decision and moved to strike the relevant allegations in the plaintiff's statement of claim. The plaintiff also in­voked issue estoppel and cross-moved to strike out relevant portions of the employer's statement of defence.

The Ontario Court (General Division) in a decision reported 2 O.T.C. 183, allowed the employer's motion and dismissed the plain­tiff's cross-motion. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's note: See also (1997), 34 O.T.C. 157.

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - Schweneke worked for the Ontario govern­ment - He was posted in West Germany - He was investigated for fraud for having illegally received travelling expenses from both the Ontario and West German govern­ments - The Ontario government suspen­ded Schweneke - A few months later Schweneke resigned, complaining of con­structive wrongful dismissal - He applied for unemployment insurance benefits - An umpire dismissed the claim and held that the Ontario government had justification to discharge Schweneke - Schweneke sued the Ontario government and others - His claim included damages for constructive wrongful dismissal - The defendants in­voked issue estoppel and moved to strike the allegations of the statement of claim dealing with constructive wrongful dis­missal - The Ontario Court of Appeal affirmed a motions judge's decision that granted the motion - See paragraphs 24 to 32, 37 to 63.

Estoppel - Topic 389

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Collateral issues decided in prior pro­ceedings - Schweneke worked for the Ontario government - He was posted in West Germany - He was investigated for fraud for having illegally received trav­elling expenses from both the Ontario and West German governments - The Ontario government suspended Schweneke - A few months later Schweneke resigned, com­plaining of constructive wrongful dismissal - Criminal charges were laid against Schweneke - After a preliminary inquiry, Schweneke was discharged - Schweneke sued the Ontario government and others - His claim included damages for construc­tive wrongful dismissal - At issue was whether the discharge after the preliminary inquiry had the effect of issue estoppel in Schweneke's civil action - The Ontario Court of Appeal answered no because the discharge did not decide the same issue - See paragraphs 33 to 36.

Estoppel - Topic 428

Estoppel by record (res judicata) - Matters precluding estoppel - Denial of procedural fairness - The Ontario Court of Appeal discussed a court's discretion to refuse to apply issue estoppel where its application would cause an injustice - The court stat­ed: "In our view, it is not enough that a party resisting issue estoppel demonstrate that the process leading to the finding did not provide the full panoply of procedural protections available in civil litigation. The party must go further and show that in the circumstances of the particular case short­comings in the procedures of the tribunal, whose finding is relied on in support of an issue estoppel claim, were such that it would be unjust to give effect to that finding in subsequent civil litigation" - See paragraphs 37 to 63.

Cases Noticed:

Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 112 D.L.R.(4th) 683; 17 O.R.(3d) 267 (C.A.), leave to appeal dismissed (1995), 19 O.R.(3d) xvi; 178 N.R. 80; 77 O.A.C. 320 (S.C.C.), consd. [para. 5, footnote 4].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), consd. [para. 5, footnote 5].

Heynen v. Frito-Lay Canada Ltd. et al. (1999), 124 O.A.C. 341; 46 C.E.L.R.(2d) 1 (C.A.), refd to. [para. 5, footnote 6].

Randhawa v. Everest & Jennings Canadian Ltd. (1996), 7 O.T.C. 28; 1 C.P.C.(4th) 49 (Gen. Div.), affd. [1997] O.J. No. 5291 (Div. Ct.), refd to. [para. 5, foot­note 7].

Canada (Attorney General) v. Jewell (1994), 175 N.R. 350 (F.C.A.), refd to. [para. 30, footnote 9].

Fakhari v. Canada (Attorney General) (1996), 197 N.R. 300 (F.C.A.), refd to. [para. 30, footnote 9].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424; 70 D.L.R.(3d) 136; 34 C.R.N.S. 207, refd to. [para. 35, footnote 11].

Danyluk v. Ainsworth Technologies Inc. et al. (1998), 116 O.A.C. 225; 42 O.R.(3d) 234 (C.A.), leave to appeal granted (1999), 249 N.R. 388 (S.C.C.), refd to. [para. 37, footnote 12].

Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R.(2d) 173; 538 A.P.R. 173 (C.A.), refd to. [para. 37, footnote 13].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 548(1) [para. 34].

Public Service Act Regulations (Ont.), Reg. 881, sect. 20(1)(c), sect. 20(4) [para. 19].

Unemployment Insurance Act, R.S.C. 1985, c. U-1, sect. 28(1) [para. 18].

Counsel:

Gordon Meiklejohn, for the plaintiff/ap­pellant;

Luba Kowal, for the defen­dants/respon-dents.

This appeal was heard on October 26 and 27, 1998, by Carthy, Doherty and Feldman, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on February 10, 2000, by Doherty and Feldman, JJ.A.