BETWEEN:
and
CANADACUSTOMS AND REVENUE AGENCY
REASONS FOR JUDGMENT
[1] Simone Sherman seeks judicial review of an evidentiary ruling made by the Canadian Human Rights Tribunal in dealing with a human rights complaint brought by Ms. Sherman against her employer, the Canada Customs and Revenue Agency.
[2] Ms. Sherman had sought to have the Tribunal apply issue estoppel with respect to findings made by an Independent Third Party Reviewer (ITPR) in dealing with a grievance filed by Ms. Sherman arising out of the termination of her employment with the Agency. The ITPR had concluded that Ms. Sherman's dismissal had been unwarranted, that the Agency had acted in bad faith in its dealings with Ms. Sherman, and that the Agency had failed to properly accommodate her disability.
[3] Although the Tribunal found that the three pre-conditions necessary to give rise to issue estoppel had been established in relation to the decision of the ITPR, the Tribunal nevertheless exercised its discretion and declined to apply the doctrine. Ms. Sherman asserts that the Tribunal made numerous errors in exercising its discretion, and that the Tribunal's decision should therefore be set aside.
[4] For the reasons that follow, I am satisfied that Ms. Sherman's application for judicial review should be dismissed as it is premature.
Background
[5] The plethora of legal proceedings involving these parties arise out of the work-related repetitive strain injury suffered by Ms. Sherman over a decade ago, and the way in which her resulting disability was dealt with by the Agency.
[6] When the Agency terminated Ms. Sherman's employment, she filed a complaint with the Canadian Human Rights Commission, in which she asserted that she had been the victim of various discriminatory practices in the course of her employment with the Agency.
[7] Several decisions were rendered by the Ontario Workplace Safety and Insurance Board (WSIB) regarding Ms. Sherman's entitlement to vocational rehabilitation services, as well as her entitlement to workers' compensation benefits.
[8] Ms. Sherman also challenged her dismissal through the vehicle of an Independent Third Party Review. This review process was established by the Agency under the authority of the Canada Customs and Revenue Agency Act, S.C. 1999, c.17, and allows for the independent review of terminations, lay-offs, demotions, and some staffing actions.
[9] After a lengthy hearing, the ITPR rendered a decision that was highly critical of the Agency. Amongst other things, the ITPR found that there was no basis for the Agency to have terminated Ms. Sherman's employment, based upon her alleged inability to perform the essential tasks of her position. As a consequence, the ITPR ordered that she be reinstated. The ITPR also found that prior to terminating Ms. Sherman's employment, the Agency had failed to properly accommodate her disability.
The PSSRB Proceedings
[10] Various grievances filed by Ms. Sherman relating to the termination of her injury-on-duty leave then proceeded to a hearing before the Public Service Staff Relations Board (PSSRB). In a preliminary ruling, the PSSRB held that issue estoppel should be applied with respect to the findings of the ITPR. That is, the PSSRB held that the Agency would not be permitted to re-litigate nine points specifically decided by the ITPR. These included findings relating to the nature and extent of Ms. Sherman's physical limitations, and the appropriateness of the Agency's efforts to accommodate her.
[11] The PSSRB declined to apply issue estoppel in relation to the WSIB decisions, which also dealt with the sufficiency of the Agency's efforts at accommodation.
[12] The Agency then sought judicial review of the PSSRB's decision. This application was dismissed by Justice Barnes, on the basis that it was premature: see Canada (Customs and Revenue Agency) v. Sherman, [2006] F.C.J. No. 232, 2006 FC 192.
Other Judicial Proceedings
[13] Not being satisfied with the Agency's response to the decision of the ITPR, Ms. Sherman subsequently brought an application for mandamus in this Court, seeking to compel the Agency to implement the ITPR's decision as it related to compensation for lost wages. This application was granted by Justice von Finckenstein: (Shermanv. Canada(Customs and Revenue Agency), [2005] F.C. J. No. 209, 2005 FC 173).
[14] Currently under reserve are decisions relating to Ms. Sherman's motion to have the Agency found in contempt of Justice von Finckenstein's order, and her further application for mandamus.
What is Issue Estoppel?
[15] Before reviewing the ruling of the Tribunal in issue in this application, it is helpful to have an understanding of the nature and purpose of issue estoppel.
[16] Issue estoppel is a public policy doctrine designed to advance the interests of justice: Danyluk v. Ainsworth Technologies Inc., [2001] S.C.J. No. 46, 2001 SCC 44.
[17] Its object is to prevent parties from re-litigating issues that have already been decided in other proceedings. The policy considerations underlying the doctrine include the need to have an end to litigation, as well as the desire to protect individuals from having to defend multiple legal proceedings arising out of the same set of circumstances: Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at p.267, per Laskin J. (dissenting, but not on this point).
[18] Concerns have also been expressed about the cost of duplicative proceedings, as well as the risk of inconsistent results if the same issue is pursued in multiple fora: Rasanen v. Rosemount Instruments Ltd. (1994), [1994] O.J. No. 200, 17 O.R. (3d) 267 (Ont. C.A.).
[19] As was noted by the Supreme Court of Canada in Danyluk, at para. 25, (citing Angle, above, at 254, per Dickson, J.)), there are three elements necessary to give rise to issue estoppel:
i) The same question is being decided in each proceeding;
ii) The decision which raises the issue estoppel is a final decision; and
iii) The parties to the two proceedings are the same parties or their privies.
[20] Even where all three elements of the test are satisfied, it does not automatically follow that issue estoppel will be applied. Rather, the adjudicative body being asked to apply the doctrine has the discretion to decline to apply the doctrine in order to achieve fairness, according to the circumstances of each case: Danyluk, at ¶ 63. See also Minott v. O'Shanter Development Co., [1999] O.J. No. 5, 42 O.R. (3d) 321, at ¶ 23.
[21] The factors relevant to the exercise of this discretion include, but are not limited to:
a) The wording of the statute from which power to issue the administrative order derives;
b) The purpose of the legislation;
c) The availability of an appeal;
d) The safeguards available to the parties in the administrative procedure;
e) The expertise of the administrative decision-maker;
f) The circumstances giving rise to the prior administrative proceedings; and
g) The potential injustice, described by the Court as being the most important factor.
[22] It is the exercise of this discretion by the Canadian Human Rights Tribunal that is in issue in this case.
[23] Before turning to consider the Tribunal ruling under review, it should be noted that although motions to have issue estoppel applied to rulings of other administrative bodies in proceedings before the Canadian Human Rights Tribunal are not uncommon, a question has been raised as to whether the provisions of the Canadian Human Rights Act have in fact modified the common law with respect to issue estoppel, precluding its application in circumstances such as these: see Canada (A.G.) v. Canadian Human Rights Commission et al., [1991] F.C.J. No. 334, 43 F.T.R. 47, at 69 (F.C.T.D.).
[24] Moreover, quite apart from statutory considerations, a reluctance to apply the doctrine of issue estoppel to the determination of human rights complaints by specialist tribunals has also been expressed on policy grounds: Canada Post Corp. v. Barrette, [1999] 2 F.C. 250, (1998), 15 Admin. L.R. (3d) 134, 157 F.T.R. 278, at ¶ 79. (Rev'd on other grounds [2000] 4 F.C. 145 (F.C.A.)).
[25] That said, it appears that the parties have proceeded on the basis that issue estoppel is available in proceedings before the Canadian Human Rights Tribunal, and I will also proceed on that basis.
The Proceedings Before the Canadian Human Rights Tribunal
[26] After her case was referred to the Canadian Human Rights Tribunal, Ms. Sherman sought a preliminary ruling that the findings of the ITPR were binding on the Tribunal by reason of the doctrine of issue estoppel. It is the Tribunal's ruling dismissing Ms. Sherman's request that forms the basis of this application for judicial review.
[27] In its ruling, the Tribunal found that the three conditions necessary for the creation of an issue estoppel existed in relation to the decision of the ITPR. Specifically, the Tribunal found that both proceedings raised the same issues, that the ITPR's decision was a final one, and that the parties to the proceeding before the ITPR and the Tribunal were the same.
[28] Nevertheless, the Tribunal determined that its discretion should be exercised, and that issue estoppel should not be applied to the findings of the ITPR.
[29] In coming to this conclusion, the Tribunal had particular regard to the nature of the ITPR process itself, including the fact that the process was created pursuant to administrative guidelines, and only provides for limited forms of relief. Moreover, the Tribunal found nothing to indicate that the ITPR was to have exclusive jurisdiction to deal with disputes relating to the termination of employment.
[30] The Tribunal was also concerned about the procedural safeguards available in the ITPR process, observing that the ITPR lacked some of the powers necessary to ensure that the parties were able to know and meet the case before them. In this regard, the Tribunal noted that the ITPR had himself recognized that the absence of any authority in the ITPR Guidelines to allow him to summon witnesses and to require the production of documents constituted a "significant handicap to the fact-finding process" in complex matters such as this.
[31] Finally, the Tribunal held that the application of issue estoppel to the findings of the ITPR was likely to be unwieldy and unworkable, and that the interests of justice would not be served by the application of the doctrine.
[32] As a result, the Tribunal declined to apply issue estoppel to the findings of the ITPR.
[33] Given that what is in issue in this application is a preliminary evidentiary ruling by an administrative tribunal, the threshold question that must be addressed is whether the application should be dealt with at this time, or should be dismissed as premature.
[34] Before turning to consider whether the application is premature, however, reference should be made to the way in which the parties have dealt with the issue of prematurity in the course of these proceedings.
The Parties' Agreement
[35] Both parties were evidently desirous of having the scope of the proceedings before both the PSSRB and the Canadian Human Rights Tribunal determined prior to proceeding with the merits of each case. As a consequence, the parties agreed that Ms. Sherman would not raise the question of prematurity in the context of the Agency's application to judicially review the preliminary ruling of the PSSRB giving effect to an issue estoppel in relation to the findings of the ITPR.
[36] In return, the Agency agreed not to argue that Ms. Sherman's application to judicially review the preliminary ruling of the Canadian Human Rights Tribunal was premature.
[37] The Agency's application to judicially review the PSSRB's ruling was heard first, by Justice Barnes, who dismissed the application as premature. While recognizing the desire of the parties to have the PSSRB's evidentiary ruling reviewed in advance of the hearing on the merits, Justice Barnes was not persuaded that there was good reason to depart from the well-established principle that the Court will not ordinarily intervene in relation to the evidentiary or procedural rulings of an administrative tribunal before the tribunal has rendered its final decision.
[38] Presumably as a result of Justice Barnes' ruling, the agreement between the parties appears to have broken down, and the Agency took the position before me that this application should be dismissed as premature. This issue will be considered next.
Is Ms. Sherman's Application for Judicial Review Premature?
[39] In the absence of special circumstances, interlocutory rulings made by administrative tribunals should not be challenged until the tribunal has rendered its final decision: see Zündel v. Canada (Human Rights Commission) [2000] 4 F.C. 255, 256 N.R. 125 (C.A.), at ¶ 10 and Szczecka v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 934, 116 D.L.R. (4th) 333 at 335.
[40] There are a number of reasons why this is so, including the fact that the application may be rendered moot by the ultimate outcome of the case, and the risk of the fragmentation of the process, with the accompanying costs and delays. Also of concern is the absence of a full record at the preliminary stage, with the resultant inability to see how the ruling actually played out in the ultimate determination of the case. There is also the possibility that the tribunal may end up modifying its original ruling as the hearing unfolds.
[41] As to what may be considered to be "special circumstances", Justice Sharlow gave the following examples in Canada (Canadian Human Rights Commission) v. Canada 3000 Airlines Ltd. (re Nijjar), [1999] F.C.J. No. 725, where she stated at ¶ 15 that:
Special circumstances may exist if judicial review of the impugned decision is dispositive of a substantive right of a party (Canada v. Schnurer Estate, [1997] 2 F.C. 545 (F.C.A.)), or if judicial review is sought on a question that goes to the legality of the tribunal itself (Cannon v. Canada, [1998] 2 F.C 104 (F.C.T.D) ...
[42] Ms. Sherman contends that special circumstances exist in this case that warrant the Court's immediate intervention. Specifically, she says that the Tribunal's ruling has the effect of defining the scope of the hearing. She should not be forced to go through a lengthy hearing in order for the Tribunal to resolve the very issues that have already been resolved by the ITPR. Not only is this the very mischief that the doctrine of issue estoppel is designed to avoid - it also raises the potential for inconsistent findings.
[43] Finally, Ms. Sherman says that the fact that this Court stayed the Tribunal's proceedings pending the hearing of this application for judicial review is evidence of the fact that she would suffer irreparable harm, were she forced to re-litigate matters that have already been decided.
[44] Ms. Sherman has not persuaded me of the existence of special circumstances that would warrant the Court entertaining her application for judicial review at this time.
[45] The fact that she faces a lengthy hearing - one that Ms. Sherman estimates will likely last some 19 days - is not determinative. In this regard, I note that in Lorenz v. Air Canada, [1999] F.C.J. No. 1383, Justice Evans declined to entertain an application to judicially review a decision regarding an allegation of bias, preferring to wait until the Board had rendered its final decision. In Lorenz, five days of hearing had already been held, and the parties estimated that they were only a quarter of the way through the hearing, with the result that there were likely some 15 days of hearing left to go.
[46] Moreover, while counsel for Ms. Sherman repeatedly referred to the hardship that Ms. Sherman would face if the matter were to proceed to a hearing, there is no evidence before the Court that she would face any particular hardship of a sort not faced by any other litigant.
[47] I am also not persuaded that the fact that a stay of the Tribunal proceedings was granted pending the hearings of this application for judicial review is evidence of the existence of "special circumstances" in this case that would justify the Court's intervention at this time. It should be noted that the stay order was granted on the consent of the parties, and does not contain a specific finding as to any irreparable harm faced by Ms. Sherman, were the matter to proceed. To the extent that such a finding is implicit in the Court's order, such a finding would only relate to the period between the issuance of the stay and the hearing of this application.
[48] Insofar as Ms. Sherman frames her arguments in terms of irreparable harm, I note that this Court has also held that costs thrown away do not amount to irreparable harm: see Bell Canada v. Communications, Energy and Paperworks Union, [1997] F.C.J. No. 207, at ¶ 37-40.
[49] Finally, I am not satisfied that the decision in Logeswaren v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1086, 2004 FC 886, relied upon by Ms. Sherman, dictates the result in this case. In that case, Justice Phelan was prepared to entertain an immediate application for the judicial review of an interlocutory ruling by the Immigration and Refugee Board. The Board had found that the Minister was not precluded by operation of res judicata from bringing a fresh application to vacate a previous Board finding that an individual was entitled to refugee protection.
[50] It is apparent from a review of the Logeswaren case that the decision under review dealt with the right of the Minister to even bring the vacation application in question. In this regard, the issue before the Court in Logeswaren was more akin to that of a jurisdictional challenge, in that it went to the very legitimacy of the process.
[51] That is not the case here. What we have here is an evidentiary ruling of the sort often made by administrative tribunals.
[52] To echo Justice Barnes' words, most of the underlying policy concerns which support the principle of prematurity apply in this case. I have not been persuaded of the existence of special circumstances here that would warrant the Court's intervention at this time.
[53] As a result, the application for judicial review will be dismissed as premature.
Costs
[54] Counsel have asked for the opportunity to make submissions on the question of costs, once I have rendered my decision in this matter. Accordingly, each party shall have one week in which to make submissions on the matter of costs, and a further five days in which to respond to the opposing party's submissions.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1760-05
STYLE OF CAUSE: SIMONE SHERMAN v.
CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: Mactavish J.
APPEARANCES:
| Mr. Steven Welchner
|
|
| Mr. Christopher Leafloor Mr. Joseph Cheng
|
SOLICITORS OF RECORD:
| Welchner Law Office, Ottawa, ON
|
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| John H. Sims Q.C., Department of Justice, Toronto, ON |