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for termination and or severance pay you are barred from bringing a wrongful dismissal action unless the complaint is withdrawn in two weeks.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 :
 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),  O.J. No. 200 at 290, per Carthy J.A.). The same considerations apply to the defence of such claims.
 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.
 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.
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