|
Estoppel - Issue Estoppel - Administrative. Ontario Public Service Employees Union v. Ontario (Solicitor General)
In Ontario Public Service Employees Union v. Ontario (Solicitor General) (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR, here where the Grievance Settlement Board "Arbitrator ruled the grievances were barred based on the doctrines of issue estoppel and collateral attack".
In this labour context, the court considers issue estoppel and it's discretionary nature:[14] The three preconditions of issue estoppel are: (i) whether the same question has been decided; (ii) whether the earlier decision was final; and (iii) whether the parties, or their privies were the same in both proceedings: Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 254; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, at para. 27.
....
[23] The Arbitrator correctly identified and applied the two-part test for issue estoppel. The Arbitrator first considered whether the three preconditions for issue estoppel were met; after concluding that the preconditions were met, the Arbitrator then considered whether he should exercise his discretion to decline the application of issue estoppel: Angle; Figliola; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.
....
[27] In Figliola, Abella J., writing for the majority, addressed the principles underlying the doctrine of issue estoppel at para. 27:These concepts [the three preconditions for issue estoppel] were most recently examined by this Court in Danyluk, where Binnie J. emphasized the importance of finality in litigation: “A litigant…is only entitled to one bite at the cherry…Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided” (para. 18). Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50). All of this is guided by the theory that “estoppel is a doctrine of public policy that is designed to advance the interests of justice” (para. 19). [28] In considering whether the issue is the same, the task is to identify whether the “source of concern” has already been decided “within the same factual and legal matrix”: Canadian Union of Public Employees, Local 59 v. City of Saskatoon, 2014 SKCA 14, at para. 47; Hebron v. University of Saskatchewan, 2015 SKCA 91, at para. 69. Parties should not try to impeach findings by the “impermissible route of relitigation in a different forum”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 46.
....
[31] The Arbitrator relied on Figliola, citing Danyluk, at para. 57: “Having chosen not to judicially review the decision as they were entitled to do, the complainants cannot then claim that because the decision lacks “finality” they are entitled to start all over again before a different decision-maker dealing with the same subject matter.” The Arbitrator found that OPSEU had the right to file an application to the OLRB to appeal each of the Inspectors’ decisions. For purposes of an appeal to the OLRB, an order of an inspector specifically includes the refusal to make an order or a decision: OHSA, s. 61(5). That OPSEU did not appeal made “the Inspectors’ decisions final in these circumstances”: GSB Decision, at para. 59.
[32] The Arbitrator’s findings and conclusions on whether the preconditions for issue estoppel were met were reasonable and justified in relation to the relevant factual and legal constraints having a bearing on his decision.
(ii) Exercise of the Arbitrator’s Discretion
[33] OPSEU argues that in exercising his discretion to apply the doctrine of issue estoppel, the Arbitrator ignored OPSEU’s reasonable and legitimate expectations that the GSB would hear the grievances; that OPSEU did not initiate the processes resulting in two of the Inspector decisions; and that the GSB Decision may discourage unions and members from accessing OHSA protections.
[34] The Arbitrator correctly observed that, “the essential question in any given case is whether it would be unfair to apply the doctrine [of issue estoppel] in the circumstances of the case”: GSB Decision, at para. 52. The Arbitrator reasonably found that in the circumstances of this case, there was “little unfairness” to OPSEU, having chosen the Inspector route to deal with their health and safety concerns, to require them to follow that process through rather than to choose a different process”: GSB Decision, at para. 68. In exercising his discretion, the Arbitrator had regard for the principles underlying the doctrine of issue estoppel, including the general presumption of finality and the advancement of the interests of justice through the avoidance of duplicative proceedings. OPSEU’s argument that the OLRB “likely would have deferred to the grievance process” is speculative.
[35] OPSEU’s argument that the GSB Decision may discourage unions and members from accessing OHSA protections is also speculative. OPSEU’s argument that the Arbitrator failed to consider the “unfairness” of barring OPSEU’s grievances as a result of employee-initiated work refusals seemingly ignores the GSB’s labour relations expertise. Given its discretionary nature, the GSB Decision is entitled to a high degree of deference.
[36] In the result, applying the correct legal tests, and considering the circumstances of the case, the Arbitrator refused to hear the grievances because of the similarity in the issues and the parties. The Arbitrator balanced the need for finality against any potential unfairness in exercising his discretion, reasonably, to apply the doctrine of issue estoppel. His decision was reasonable. . Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002
In Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002 (Div Court, 2024) the Divisional Court denied a motion for a stay pending appeal, here where the appellant appealed a LAT order "directing the Respondent Registrar to carry out a Notice of Proposal" to revoke both a car dealer and motor vehicle salesperson MVDA registration.
The court considers a stay pending appeal of the LAT order, here where the appellants had already sought and been denied a stay before the LAT [paras 20-24]. The respondent Registrar resisted on issue estoppel grounds:Issue Estoppel/Res Judicata
[26] The Respondent argued that the court should decline to hear the motion for a stay on the merits, but should apply the doctrine of issue estoppel/res judicata. In the Respondent’s submission, the test in Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460 at para. 20, is met in this case because:i. The same issue has been decided;
ii. The previous judicial decision was final; and
iii. The parties to the judicial decisions or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. [27] Further, the Respondent submits that there is no reason for this court to exercise its residual discretion to allow the stay motion to be re-litigated. There has been no change of circumstances that have altered the nature of the issue to be determined, there are no special circumstances warranting a refusal, and the application of the doctrine would not work an injustice.
[28] I decline to dismiss the motion for a stay based on issue estoppel. While the same issue has come before this court as was addressed by the Tribunal below, this court has the discretion to hear motions to stay pending appeals. The Appellants have brought a modified proposal forward on this motion to stay in the form of monitoring and a complaints fund. Accordingly, I permitted the Appellants to proceed on the motion to stay. . Manulife Ontario Property Inc. v. MPAC and Ottawa (City)
In Manulife Ontario Property Inc. v. MPAC and Ottawa (City) (Div Court, 2023) the Divisional Court considers an administrative [Assessment Review Board (ARB)] application of issue estoppel:[10] MPAC then brought a motion before the Board seeking an order that Manulife is estopped from raising the CVA of the subject property for the 2021-2022 taxation years. MPAC’s submission was that the Board had finally determined the issue of the 2016 CVA when it accepted the settlement made by the parties and incorporated the settlement into orders. Alternatively, MPAC argued that relitigating the 2016 CVA would be an abuse of process.
....
Analysis
Did the Board Misapply the Doctrine of Issue Estoppel?
[17] In its decision, the Board correctly described the test for issue estoppel (at para. 14):The three criteria that must be met for issue estoppel to apply are well- established, as articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 at paragraph 26, upheld at the Divisional Court in Wabi Iron & Steel Corp. v Municipal Property Assessment Corp., Region No. 29, 2005 CanLII 3984 (ON SCDC) (“Wabi Iron”), and confirmed in numerous subsequent decisions of this Board:a. the same question has been decided;
b. the decision said to create the estoppel was final; and
c. the parties to the decision were the same parties as those to the proceedings in which the estoppel is raised. [18] The Board described issue estoppel as a doctrine which prevents wasting time and resources on an issue that has been decided by a court or competent tribunal. It referred to prior decisions on that point including Smith v Municipal Property Assessment Corporation, Region No. 23, 2018 CanLII 35052 (ON ARB) and MPAC v. Hyde 2013 CarswellOnt 66 at para. 18.
[19] The Board correctly held that issue estoppel can be applied to cases which determine an issue in dispute by way of a consent judgment, citing the decisions in R. v. Dieckmann, 2017 ONCA 575 (CanLII) at paragraph 35; Spadacini-Kelava v. Kelava, 2020 ONSC 7907 (CanLII) at paragraph 106; First Capital Holdings (Ontario) Corporation v Municipal Property Assessment Corporation, Region 09, 2022 CanLII 56354 (ON ARB) at paragraph 27(c).
[20] The Board considered the Divisional Court’s decision in Wabi Iron & Steel which determined that although a taxpayer has a right to an annual appeal to seek to establish a new CVA based on considerations such as a change in the state or condition of the property, this does not prevent the operation of issue estoppel from applying to the CVA as of the valuation date.
....
[22] In Wabi-Iron & Steel, the taxpayer sought to appeal the assessment within the four-year cycle, despite the Board’s prior finding that the CVA for that cycle was determined to be $1,644,000. The court found that although a taxpayer has annual litigation rights they are not entitled to re-litigate the assessed value as of the valuation date, absent , for example, a change in the state and condition of the property. Hennessy, J wrote:The application of issue estoppel in this case does not negate the right of the taxpayer to litigate the assessment. The right to complain of assessments in each year is provided for by the Assessment Act. The Board is required to hold a hearing when a complaint is filed. There is a continuing right to challenge the current value on the basis of evidence of a change in the property. (Emphasis added) In Wabi-Iron & Steel, the Board had determined the CVA for the four-year cycle in an earlier proceeding. Thus the Divisional Court upheld the application of issue estoppel to the issue of the CVA:The Board carefully considered each of the three criteria and it was reasonable to find that they were met. Consequently the Board reasonably determined that the question of June 30, 1996 value was res judicata and that the appellant should be estopped from raising it on the present complaint. [23] But as the decision in Wabi-Iron & Steel found, once a decision is made as to the current assessed value as of the valuation date for the four-year cycle, this decision is subject to the doctrine of issue estoppel because the legislation applies the value as of that date for a defined period.
....
[33] Manulife submits that despite these findings, the Board could have exercised its discretion to hold a hearing and not apply the doctrine of issue estoppel. I am satisfied that it appropriately considered whether to do so and did not err in law in considering and declining to exercise its discretion.
....
[35] The Board described the purpose of this discretion with reference to the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII) at para 33: “The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.”
....
[39] The Board correctly identified the law of issue estoppel and applied the doctrine to the facts before it. The latter finding is arguably not an issue of law that can be appealed absent an error in principle. I am satisfied that the Board properly considered whether to exercise its discretion not to apply the doctrine and properly directed itself to the nature of the discretion. It made no error in doing so. I therefore would not give effect to this ground of appeal.
|
