British Columbia ESA Tribunal Finding Not Binding on Civil Action :

In Read v. Rimex Supply Ltd.( 20121 BCSC 2157) Justice Lamb had a case where the Plaintiff was fired for what the employer thought was just cause. The Plaintiff filed an ESA complaint and the Defendant filed an appeal with Service Canada ( re EI). Both organizations found there was no just cause.

The Plaintiff then started a civil action for wrongful dismissal.

Note that this could not occur under the ESA in Ontario. because under section 97(2) of that Act once you file an ESA complaint for termination and or severance pay you are barred from bringing a wrongful dismissal action unless the complaint is withdrawn in two weeks. 

The Defendant sought to allege just cause in the civil action so the Plaintiff brought a motion for summary judgement to which the Defendant sought a ruling whether the issue of just cause was barred by the principle of issue estoppal.

First of all,  with respect to the ruling by Service Canada on the EI issue, the Plaintiff did not even claim that issue estoppal applied to that ruling . This is what the Court said:

The plaintiff does not seek to apply  issue estoppel to the  Service Canada decisions. The plaintiff acknowledges . and  I agree . that  the Service Canada decisions are not procedurally  robust enough  to justify  the application of issue estoppel. As noted above, there  is no justification  for the conclusions  reached in the Service Canada decisions, and there was limited direct evidence before me about  the procedural steps leading to either decision.   

Anyone who has ever appeared before an  EI Board of Referees ( at least that is what is was called when I appeared before them ) would agree with this assessment.

With respect to the Employment Standards Branch ruling , the Court went through a detailed analysis of the factors leading to the application of issue estoppal. In the end it found that the doctrine of issue estoppal did not apply. This is what was said :

[83]  I am satisfied that  there are significant differences between  the purposes, processes and stakes between  the ESB proceeding and this wrongful  dismissal action. The purpose of the ESB proceeding was to provide basic compensation  for length  of service whereas the purpose of the civil  lawsuit  is to provide compensation for breach of the employment  contract. As outlined above,  the ESB processes are intentionally  more streamlined and efficient  than  the procedures available in a civil lawsuit. Clearly,  the stakes are different between  the two processes. In  the ESB proceeding, the plaintiff sought an award for compensation of $13,220.77 for  length of service. In  the  civil action,  the plaintiff seeks damages of $178,262.17 for wrongful dismissal and an award of $30,000 for aggravated damages, more than  15 times the amount  of the ESB claim. As the court noted in Danyluk, .[i]t would be unfair toan employee who sought out  immediate and  limited relief of $4,000, forsaking discovery and representation  in doing so, to then  say that he is bound  to the  result as it affects a claim for ten times that amount. (at para. 71, citing to Rasanen v. Rosemount Instruments Ltd., 1994 CanLII  608 (ONCA),  [1994] O.J. No. 200 at 290, per Carthy J.A.). The same considerations apply  to the defence of such  claims. 

[84]  This factor weighs decisively  in favour  of the defendant.  In my view,  there  is a potential  injustice  in applying  issue estoppel to the ESB decision in circumstances where  the defendant has not had an opportunity  to fully  defend  the wrongful dismissal claim.  In  these  circumstances, where  the best and perhaps only  evidence regarding the timing of the plaintiff.s wife.s involvement rests with someone other than  the plaintiff,  it would  be unjust  to deprive the defendant of an opportunity  to try to prove just  cause.  

[85]  While there were other steps the defendant may have been able to take within  the ESB process to secure such  evidence,  I am satisfied that  the defendant should  not be penalized  for not taking such steps when  the  stakes were lower and the available processes less robust. As a majority of the Supreme Court of Canada observed at para. 45 of Penner, .where  little  is at stake for a litigant  in the prior proceeding, there may be little incentive to participate in it with full vigour.. Justice Arbour made a similar observation at para. 53 of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, writing for a majority of the court:   

If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. 

If yo wish a copy of the case email me at the Defendant