FPSLREB Decisions

[1]    I was appointed to hear three related grievances arising out of the employment of Simone Sherman at the Canada Customs and Revenue Agency, now the Canada Revenue Agency ("the employer" or "the Agency"). In the first grievance, Ms. Sherman alleges that the employer improperly terminated her injury-on-duty leave in September 1997. The second and third grievances relate to the same set of events. On June 19, 1998, Ms. Sherman was advised not to report to work. Ms. Sherman has grieved this decision, characterizing it either as a suspension without pay, or as an improper placement on sick leave/vacation leave at a time when Ms. Sherman maintains she was able to return to work with appropriate accommodation of her disability.

[2]    Just prior to the start of the hearing before me, the parties agreed that the first determination I should make is whether a decision made in another forum with respect to Ms. Sherman and her ability to work should give rise to an issue estoppel. Ms. Sherman, and her union the Professional Institute of the Public Service of Canada ("PIPSC"), assert that the decision of the Independent Third Party Reviewer ("ITPR") who inquired into Ms. Sherman's subsequent non-disciplinary termination made a final decision, on the same issues before me, involving the same parties, in a judicial process. Consequently, Ms. Sherman argued, as a matter of discretion, I should not permit the employer to re-litigate those same issues. In response, the employer argued that the same matters are not before me. In any event, as a matter of discretion, I should not defer to the earlier decision because there is a foundation to conclude that the decision was not fair to the employer's evidence and the employer should not be essentially "penalized" again in this forum and prevented from making its case anew.

Evidence with respect to issue estoppel

[3]    The parties agreed on much of the evidence I needed to consider the preliminary motion brought by Ms. Sherman. Ms. Sherman was terminated for non-disciplinary reasons in August 2000. As set out above, Ms. Sherman was employed by the then Canada Customs and Revenue Agency. The legislation that established the Agency removed certain staffing and termination decisions from review by the Public Service Staff Relations Board. However, the legislation which established the Agency, the Customs and Revenue Agency Act, S.C. 1999, c.17, ("the CRAA") section 54, required it to develop a recourse mechanism to allow employees to challenge those staffing and termination decisions that could not be reviewed by the Public Service Staff Relations Board ("the PSSRB"). The employer established a process whereby employees who were dissatisfied with those decisions could initiate an Independent Third Party Review. When Ms. Sherman was terminated, she initiated the ITPR. There is no disagreement between the parties that this was the only recourse available to her.

[4]    In accordance with the Guidelines established by the Agency for the ITPR process, the Office of Dispute Management appointed a reviewer from their roster. All that the parties know of the reviewer, John Wilson, is that he is a lawyer with experience adjudicating disputes concerning entitlement to accident benefits at Ontario's Financial Services Commission.

[5]    Ms. Sherman's hearing before Mr. Wilson took place over 19 full days. The parties agree that the hearing was marked by the following characteristics:

• The opportunity was provided to both sides to be heard, by way of both oral testimony and documentary evidence

• Pre-hearing submissions were made and rulings covering various matters were given

• Oaths were administered to witnesses

• Both sides were represented by counsel

• Both parties had the ability to cross-examine the other party's witnesses

• Both parties had the ability to raise objections which were dealt with by the reviewer

• Expert witnesses appeared and participated after a qualifying process and ruling by the reviewer

• The process was recorded by a court reporter

• Affidavits, sworn and commissioned, were accepted

• Written arguments, totaling more than 200 pages, were submitted

• A detailed written decision was issued, which carefully reviewed the evidence, applied relevant jurisprudence and drew conclusions of fact and law

Although I will have more to say about the issues that were determined by the decision, the reviewer ultimately concluded in a decision rendered on February 25, 2003, that the employer's decision to terminate Ms. Sherman because her disability could not be accommodated was not sustainable. The reviewer ordered that Ms. Sherman be reinstated and that appropriate accommodation be provided. The employer has not sought judicial review of that decision.

[6]    Ms. Sherman sought to lead evidence about the costs incurred by both parties in the ITPR. The employer argued that it was enough for me to know that the matter consumed 19 days of hearing. I decided to hear the particular evidence, on the basis that it would take little time, and the parties could argue about the weight to be given to it. David Sherman, Ms. Sherman's spouse and a lawyer specializing in taxation, testified that he made an access to information request to collect information about the costs incurred by the employer in respect of the ITPR including the costs of the reviewer, the court reporter, disbursements, expert witnesses, outside counsel's participation and then a docket of the hours spent by its staff lawyers. Mr. Sherman then calculated the cost of the staff lawyers, based on an estimated hourly rate of $175.00. Mr. Sherman agreed in cross-examination that he had no particular objective criteria for choosing that rate, except that it seemed reasonable, although well below a "commercial rate". Based on the information Mr. Sherman collected, he testified that the "out of pocket" expenses of the employer amounted to $171, 000 and the cost of the two staff lawyers, who docketed 1,300 hours each, amounted to $478,000. Mr. Sherman then testified that he had spent approximately 500 hours participating as co-counsel and, taking into account his hourly billing rate of $600 an hour, that participation amounted to a lost opportunity cost of $300,000 to him and his family. In cross-examination, Mr. Sherman agreed that employment law was not his area of speciality and participating in the ITPR as co-counsel was a unique experience for him.

[7]    In my view, it is not essential to determine what were the actual costs spent by each party. I agree with counsel for the employer that, in the end, it is enough to know that these parties have already expended the costs associated with a 19-day hearing. The detail provided by Mr. Sherman, particularly around the costs associated with expert reports, retaining a court reporter and the docketing of 2,600 hours by counsel to the employer, demonstrate that the ITPR process was taken very seriously by both sides and significant resources, both internal and external, were devoted to it. I noted also Mr. Sherman's evidence that the data he collected did not record the hours spent by Agency staff who, of course, would have been needed to provide advice and information to counsel. Mr. Sherman also testified that two senior staff of the Agency attended all of the hearings.

Submissions and jurisprudence in respect of issue estoppel

[8]    The parties agree that the leading case is Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. Ms. Danyluk filed a complaint under Ontario's employment standards enforcement regime, seeking the payment of commissions. Her complaint was dismissed. Ms. Danyluk then commenced a court action claiming wrongful dismissal, seeking the same payment of commissions. Her employer argued that Ms. Danyluk ought not to be allowed to re-litigate the matter, and that the court should, as a matter of discretion, and for sound public policy reasons, apply the concept of issue estoppel. At paragraph 18, the Court set out the reasons behind the development of the principle:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA [Employment Standards Act] as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issue decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Where as here, its application bars the courthouse door against the appellant's $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted.

[9]    The Court said that three conditions must be satisfied before a court or tribunal can consider applying issue estoppel; the same question has been decided in the previous litigation; the judicial decision which is said to create the estoppel was final; and the parties to the previous decision or their privies are the same parties in the proceeding in which the estoppel is raised.

     a.     Are the parties the same and is the previous decision final?

[10]    In the case before me, there is no dispute that the decision of the ITPR is final, and there is no dispute that the parties to the ITPR decision are the same before me.

     b.     Was the previous decision judicial?

[11]    In determining whether the previous decision was "judicial", Danyluk (above) said, at paragraph 35, that three elements must be taken into account:

First is to examine the nature of the administrative authority issuing the decision. Is it an institution that is capable of receiving and exercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicial manner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner?

[12]    Ms. Sherman argued that the decision of the reviewer was judicial, and the agreed facts show that the process bore the hallmarks of a judicial process. Ms. Sherman relied on the decision of the Federal Court in Professional Institute of the Public Service of Canada v. Canada (Canada Customs and Revenue Agency), 2004 FC 507. In that case, PIPSC challenged the entire staffing program that had been developed by the Agency on the basis, among others, that it did not adhere to the principles of natural justice. The Federal Court declined to consider fully the staffing program on a hypothetical basis, but in the event that a reviewing court did not consider the issue hypothetical, addressed the natural justice concerns. The Court concluded that the Agency was required by the CRAA to develop a staffing program and "recourse" for employees, as set out in section 54(1). To meet that duty, the Court held that the Agency must design a method of staffing recourse that complied with the rules of natural justice. The Court concluded that the Agency had met that obligation. The staffing program provided a meaningful opportunity for employees to present their case and to have their position considered by the decision-maker. At paragraph 141, the Court concluded that "There is no real evidentiary basis for the Court to conclude that the ITPR process is not adequate to deliver the kind of independent, impartial and fair decisions that the law demands of a decision-maker in the position of an ITPR reviewer". The Court was clear in saying that it had no decision of an ITPR adjudicator to review, but the Court was satisfied that the staffing program, as set out, did not violate the rules of natural justice.

[13]    Ms. Sherman relies on that case to establish first, that the ITPR reviewer is capable of exercising adjudicative authority and, second, that the ITPR decision-making is required to be delivered in a judicial manner.

[14]    With respect to the third criterion, that is whether the decision was made in a judicial manner, Ms. Sherman points to the elements the parties agreed were characteristic of the process. Both sides were heard, by way of oral testimony and documentary evidence; witnesses appeared under oath and were cross-examined; written arguments were made and a decision was produced, with lengthy reasons, considering the evidence and argument put before the reviewer.

[15]    The employer did not challenge Ms. Sherman's position that the process before the ITPR was judicial, a sensible concession. I am satisfied that the ITPR process, as it unfolded with respect to Ms. Sherman's case, meets the test of being judicial. The ITPR reviewer possessed the legislative authority to make an adjudicative decision, derived from section 54(1) of the CRAA. The Federal Court, in Professional Institute of the Public Service of Canada v. Canada (Canada Customs and Revenue Agency) (above) confirmed that the ITPR had to be carried out in a judicial way, and respect the rules of natural justice. Finally, the ITPR was, in fact, carried out in a judicial manner, with a "court-like" hearing process and, as the parties have agreed, a detailed decision which carefully reviewed the evidence, applied relevant jurisprudence and drew conclusions of fact and law.

     c.     Did the previous decision determine the same issue?

[16]    The employer does, however, disagree that the ITPR considered the same question that is before me. Put simply, counsel argued that the ITPR determined only whether the Agency could sustain a non-disciplinary termination. That is not the same issue before me, nor could it be, counsel for the Agency argued, because the CRAA removes from the jurisdiction of the Public Service Staff Relations Board the right to review non-disciplinary terminations of the Agency. Moreover, section 91 of the Public Service Staff Relations Act, R. S., 1985, c. P-35, ("the PSSRA") limits the jurisdiction of the Public Service Staff Relations Board to adjudicating disputes "...in respect of which no administrative procedure for redress is provided in or under an Act of Parliament". There is a clear legislative intention to avoid overlapping jurisdiction. Counsel for the employer suggested that Ms. Sherman's argument that the ITPR and I were being asked to consider the same issues was inimical to the legislative intention to avoid overlapping jurisdiction. On that basis, I should determine that issue estoppel was unavailable.

[17]    I disagree. The availability of issue estoppel is not limited to circumstances of overlapping jurisdiction. In practice, issue estoppel only arises where the previous decision and the subsequent proceedings occur in different forums, which are not likely to possess overlapping jurisdictions. In Danyluk (above), the first proceeding was a complaint under Ontario's Employment Standards Act, while the second was brought in the courts. Issue estoppel is available when a question, that was fundamental to the first proceeding, was decided in previous litigation between the same parties. In McIntosh v. Parent, [1924] 4 D.L.R. 420 at 422, the Ontario Court of Appeal defined issue estoppel like this:

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question or fact, once determined, must as between them, be taken to be conclusively established so long as the judgment remains.

[18]    I conclude that an adjudicator appointed to determine a grievance properly brought to the Public Service Staff Relations Board can consider whether to decline to permit a losing party to re-litigate an issue previously determined in a judicial process among the same parties.

[19]    The employer noted that the jurisprudence does not permit the application of issue estoppel to every question or issue considered in the previous proceeding. In Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at page 254, the Court held that issue estoppel will only be applied where the question decided was "fundamental to the decision arrived at in the earlier proceeding". A party may not prevent the re-litigation of a question or issue that was collateral or incidental to the earlier proceeding. That limitation was adopted by the Supreme Court of Canada in Danyluk (above) and remains good law. The significant question in this case is whether the questions and issues decided by the ITPR, to which Ms. Sherman seeks to apply issue estoppel in this proceeding, were fundamental to the decision of the ITPR reviewer.

[20]    Ms. Sherman and PIPSC sought to rely on 48 findings of the ITPR reviewer. The employer argued that the only "fundamental question" that the reviewer decided was whether Ms. Sherman's non-disciplinary termination was sustainable, with the result that any other determinations were collateral or incidental. The employer relied on Hilltop Group Ltd. v. 806046 Ontario Ltd., [2003] O.J. No. 4958 (S.C.J.) in support of its argument that the courts have taken a fastidious approach to determining whether the "same question" was determined in the earlier proceeding and have not applied issue estoppel to findings in respect of sub-issues.

[21]    All of the cases indicate that the decision-maker must have regard to all of the circumstances of the case to determine whether the finding to which issue estoppel is sought to be applied was fundamental to the earlier decision. I adopt the test of the Supreme Court in Danyluk (above) as set out at paragraph 54 because it is relatively simple to apply and is appropriate to an employment context, where the same issue or question may be material to claims that can be made in a variety of forums:

A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court.... Establishing each such fact (sometimes referred to as material facts) constitutes a pre-condition to success. It is apparent that different causes of action may have one or more material facts in common. In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant's wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as an employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be litigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that "issue" in the prior proceeding.

[22]    Applying that test requires me to review what material facts Ms. Sherman had to establish to satisfy the ITPR reviewer that her non-disciplinary termination could not stand. Some assistance in answering that question has been provided by the ITPR reviewer himself. At paragraph 3 of the decision, he wrote:

Although at its most narrow, the issue before this reviewer is the reasonableness of Ms. Sherman's the [sic] termination of employment, the review of her termination necessarily raises a plethora of issues. Given the long history of the interactions between the employer and the employee concerning employment-related injury and its accommodation, the decision to require the completion of an FAE [Functional Abilities Evaluation] cannot be viewed in isolation.

[23]    Over the objections of the employer, who sought to narrow the issues, the ITPR reviewer decided that the following issues were relevant to his determination, having regard to the letters of termination given to Ms. Sherman and her reference to the ITPR:

1. What were the essential tasks and duties of Ms. Sherman's employment with Revenue Canada?

2. Was the requirement of lifting and carrying 39 pounds a valid job requirement?

3. What were Ms. Sherman's physical restrictions?

4. Had the employer made bona fide efforts to accommodate Ms. Sherman's medical [sic] to the point of undue hardship?

5. Was Ms. Sherman capable of performing her duties with appropriate accommodation?

6. Did the employer act unreasonably in requiring Ms. Sherman to undergo an evaluation which required the lifting and carrying of 39 pounds?

7. Was it reasonable for Ms. Sherman to refuse the Functional Abilities Evaluation?

8. Did the employer have sufficient grounds to terminate for incapacity and did it act reasonably in so doing?

9. What, if any, are the appropriate corrective measures in response to these issues?

Although the ITPR reviewer did not answer each of these questions in a particular order or sequence, all of them were addressed at some point in the 62-page decision. In order to reach a decision and address the remedial question, the ITPR reviewer had to address points 8 and 9, and before me, the employer agrees that those determinations were fundamental to his decision. However, the employer disputes that any of the other points were fundamental. I disagree.

[24]    Without reviewing the entirety of the history that led to Ms. Sherman's non-disciplinary termination, it is evident that two significant events culminated in the employer's decision to terminate. Ms. Sherman refused to undergo a Functional Abilities Evaluation because she believed that it would require her to lift 39 pounds, a task which she concluded would aggravate her medical condition and do so unnecessarily because lifting 39 pounds was not an essential duty of her job. At around the same time, the employer received the opinion of a therapist, hired to implement an accommodation plan, that no accommodation would assist Ms. Sherman's return to productive work. This opinion, combined with the view of the Workplace Safety and Insurance Board (WSIB) that the employer had implemented all of the accommodation WSIB considered necessary, led the employer to conclude that it had done all it could, that Ms. Sherman was not co-operating, and further accommodation efforts were neither necessary nor likely to result in Ms. Sherman's return to productive work.

[25]    For the ITPR reviewer to evaluate the non-disciplinary termination, he had to assess the merits of the employer's decision-making, thus engaging an inquiry into its elements, which are set out in paragraph 23 above, at points 1, 2, 3, 6, and 7. More significant, Ms. Sherman had to establish before the ITPR reviewer that she was capable of performing the essential duties of her position and that the employer had not provided accommodation to the point of undue hardship. Otherwise, the non-disciplinary termination would have been upheld. Consequently, I conclude that determining points 4 and 5 were also fundamental to the decision of the ITPR reviewer. In summary, I find that the determinations of points 1 to 9 are "necessarily bound up" in the determination made by the ITPR reviewer and issue estoppel can be applied to all of them.

[26]    Ms. Sherman and PIPSC have asked me to go further and, essentially, conclude that issue estoppel applies to all of the findings of fact made by the ITPR reviewer. I agree that the findings of fact Ms. Sherman asks me to accept as determined are the building blocks of the ITPR reviewer's conclusions under each of the nine points, as set out in paragraph 23 above. However, as counsel for the employer argued, issue estoppel does not apply to prevent the challenge to those "building blocks" that were not essential to the ITPR reviewer's determinations. At this point, it is not necessary for me to delineate which of the findings of fact on which Ms. Sherman relies fall on one side of the line or the other. Some are evident. I anticipate that counsel could resolve most of the rest.

[27]    The nine points that the ITPR determined are questions that I would also have to determine as part of my decision-making in respect of the grievances before me. The ITPR reviewer and I are required to decide the same issues.

[28]    In summary, I am satisfied that the three criterion set out in Danyluk (above) for the application of issue estoppel have been met in respect of the proceedings before me.

Discretion to apply issue estoppel

[29]    All of the cases state that a subsequent decision-maker has the discretion whether or not to apply issue estoppel, even where all of the tests for its application have been met. In Danyluk (above), the Supreme Court commented that issue estoppel, like abuse of process protections, was designed as an implement of justice and a protection against injustice, with the result that the decision-maker must determine what is fair in each case. In Danyluk (above), the Court identified seven factors that may be relevant to exercising that discretion:

(a) the wording of the statute from which the 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;

(d) the expertise of the administrative decision-maker;

(e) the circumstances giving rise to the prior administrative proceedings; and

(e) the potential injustice.

[30]    The employer argued strongly that I should decline to apply issue estoppel in this case. With respect to factor (a), counsel argued that since the ITPR process is separate from the adjudication procedure available under the PSSRA, the employer could not reasonably expect that issue estoppel would be raised and instead would expect to be able to argue the case anew. With respect to factor (b), counsel argued that the ITPR process is intended to provide a quick resolution of disputes. Although he acknowledged that the process involving Ms. Sherman had not been quick, if parties must be concerned that issue estoppel will be applied, then they will mount full-scale trial-type offence and defence in an ITPR process, undermining its purpose. In addressing factor (c), counsel for the employer noted that no appeal was available only judicial review. Moreover, in this case, the employer was very reluctant to commence a judicial review, even though it firmly disagreed with the outcome. Because the ITPR process and the appointment of the reviewer were implemented by the Agency's Office of Dispute Management, the employer considered it very awkward to seek to review the work product of that Office. In responding to factor (d), counsel for the employer noted that the ITPR reviewer lacks the power to summons witnesses or compel the production of documents with the result that the process may not provide the procedural safeguards that make it appropriate for its decisions to give rise to issue estoppel. In addressing criterion (e), counsel for the employer noted that the ITPR reviewer is an ad hoc appointment, and there is no assurance of reviewer expertise in the matters at issue. Responding to factor (f), counsel for the employer argued that the ITPR had proceeded on the basis that the reviewer had no jurisdiction to remedy events that occurred prior to Ms. Sherman's termination. To apply issue estoppel now would have the effect of granting the ITPR reviewer decision-making power over elements of the employer's conduct prior to the termination, since my determinations would be circumscribed by his prior findings.

[31]    The employer, wisely, applied most of its attention to the final criterion, the potential injustice. The employer asserted that the ITPR reviewer appears to have ignored previous decisions of the WSIB that determined that the employer had met all of its obligations to accommodate and that Ms. Sherman was fit to return to work with the accommodations that the employer had implemented. Ms. Sherman has not advanced any appeals of those decisions, but has instead thwarted any efforts of the employer to return her to work and has advanced her grievances at the PSSRB. Since both the employer's decision to terminate and its earlier decision to end the injury-on-duty leave and to send Ms. Sherman home were based on the WSIB determinations, it is those decisions which Ms. Sherman should be appealing if she is not satisfied, counsel for the employer argued, instead of challenging the employer's actions that were only reasonable responses to the information and decisions that it was receiving from the WSIB. It is difficult to overstate how vehemently the employer objects to what it sees as the ITPR reviewer's failure to take account of the WSIB decisions and understand that the employer was only acting reasonably in response to the advice of the very agency that is responsible for determining if workers are fit to return and if employers have met their re-employment obligations. As dissatisfied as the employer is with the ITPR reviewer's analysis, the employer strongly argues that the unfairness it has suffered would be amplified if I were to apply issue estoppel and preclude the employer from re-litigating the flawed determinations of the ITPR reviewer. If any decisions should be the subject of issue estoppel, it is those of the WSIB which established that the employer had met its obligations.

[32]    Counsel for the employer outlined numerous instances in which it believed that the ITPR reviewer's decision did not fairly consider or address its submissions.

[33]    In support of the position that I should apply issue estoppel in this case, Ms. Sherman and PIPSC argued that the wording of the statute, factor (a), supported such an outcome. Before the CRAA was enacted, all of Ms. Sherman's employment disputes would have been heard by the PSSRB. In creating a different process for the determination of non-disciplinary terminations, elements of what is essentially a single dispute about Ms. Sherman's disability and the employer's accommodation obligations have been removed from the PSSRB. But since there is a single dispute, it is entirely appropriate to apply issue estoppel to avoid duplicating litigation about a single dispute. In respect of factor (b), all that is relevant, counsel for Ms. Sherman argued, is the availability of judicial review, which the employer declined. Turning to factor (c), in this case, as set out above, the parties received a full hearing with extensive evidence. The ITPR reviewer indicated that he would compensate for the inability to compel witnesses and document production by drawing adverse inferences against a party who failed to produce relevant evidence. In this way, procedural safeguards were available. Addressing the factor of expertise of the decision-maker, factor (d), Ms. Sherman noted that the employer chose the reviewer from a roster that it created. The decision itself showed the reviewer understood both the factual and legal issues, thereby illustrating sufficient expertise.

[34]    Finally addressing factor (g), potential injustice, counsel for Ms. Sherman asked me to reflect on the injustice to Ms. Sherman, her spouse, the union, and taxpayers generally, if the employer is permitted to re-litigate these matters. Ms. Sherman disagrees that the reviewer failed to address the employer's arguments. Ms. Sherman disagrees that the reviewer ignored the WSIB decisions that were introduced at the hearing. Instead, there is a fundamental difference between the employer and Ms. Sherman. Ms. Sherman did not accept that the employer's compliance with the return-to-work obligations and the accommodations required by the WSIB were determinative of the employer's obligations. Ultimately, the ITPR reviewer agreed with Ms. Sherman and concluded that the employer had not done enough, with the result that the non-disciplinary termination was not upheld. Ms. Sherman submits that it would be unjust to permit the employer to re-litigate the findings that the accommodation provided was not sufficient and that Ms. Sherman was fit to perform the essential duties of her job with appropriate accommodation.

[35]    I conclude that it is appropriate to apply my discretion and invoke issue estoppel considering all of the circumstances of this case. Beginning with criterion (g), potential injustice, I am not satisfied that it is unjust to prevent the employer from re-litigating issues that were fully canvassed in the ITPR process. It is important to remember that the ITPR process was established by the employer. The employer determined the Guidelines that governed the ITPR, and chose the adjudicator. Since the employer controlled the process from the beginning, it seems somewhat offensive to object to permitting Ms. Sherman to rely on her win in the ITPR decision in advancing her grievances.

[36]    More significant, on my reading of the ITPR decision, I am satisfied that the reviewer considered the employer's evidence and arguments. I agree with Ms. Sherman that there was, and remains, a fundamental disagreement between her and the employer about the standard against which to measure Ms. Sherman's fitness and the obligation to accommodate her disability. The employer has consistently taken the position that the WSIB is the appropriate arbiter of Ms. Sherman's fitness to return to work and need to be accommodated. Consequently, the employer has acted in reaction to, and based on, its understanding of the WSIB decisions. For that reason, the employer has also consistently taken the position that Ms. Sherman should be appealing the decisions of the WSIB, rather than focusing on the actions of the employer, taken in consequence of the WSIB decisions. However, Ms. Sherman and PIPSC have taken the position that the WSIB decisions are not determinative. It is evident from reading the ITPR decision that the reviewer agreed with Ms. Sherman. The ITPR reviewer referred to and relied on information and opinions provided by the WSIB, but also looked at and relied on information and opinions that conflicted with those of the WSIB. Particularly significant, in assessing whether the employer had met the duty to accommodate, the reviewer, at page 15, outlined that the obligation arises both from workers' compensation legislation and from human rights statutes. The question the reviewer asked is not whether the employer had complied with the WSIB decisions in respect of accommodation, but whether it had made reasonable efforts to accommodate Ms. Sherman "...to the point of undue hardship" (page 15). The reviewer concluded that the employer had not met the onus of establishing that the necessary modifications "... are too onerous to be contemplated and will result in undue hardship". Consequently, the reviewer decided that the non-disciplinary termination was not justified and ordered Ms. Sherman reinstated. Further, he ordered that the employer take steps to accommodate her disability. I note that the Guidelines established by the employer for the ITPR include in the "range of corrective measures" available, "order a duty to accommodate". It would appear that it was anticipated that the reviewer exercise the discretion to reinstate with a proviso that the employer meet its duty to accommodate disabled employees. There is no suggestion that the duty to accommodate imposed on the Agency as a remedy after an ITPR review was limited to the duty to comply with WSIB decisions.

[37]    The ITPR reviewer asked whether all of the duties Ms. Sherman was required perform are bona fide occupational qualifications. For this reason, the ITPR reviewer considered the stated requirement to lift 39 pounds. He concluded that it was not a bona fide occupational qualification. Then, for those duties the ITPR reviewer concluded were bona fide occupational qualifications, he considered whether the Agency had established that accommodating the needs of Ms. Sherman "...would impose undue hardship", such that her termination was justified. The reviewer concluded that the Agency had not met the test.

[38]    I have outlined my understanding of the ITPR reviewer's approach to the accommodation issue in some detail to respond to the employer's assertions before me that the ITPR reviewer failed to treat the WSIB decisions as determinative and the argument that Ms. Sherman is obliged to appeal the WSIB decisions rather than the employer's actions. I conclude that the ITPR reviewer took the correct approach to assessing whether the employer had met its broader duty to accommodate. Consequently, there is no injustice to the employer in holding it to the reviewer's determinations that are relevant to the grievances before me.

[39]    Looking at criterion (a), the wording of the statute from which the power to issue the previous decision derives, I agree with the employer that the CRAA essentially "carved out" from the PSSRA the power to determine the correctness of termination decisions of the Agency. The predictable result of such a division is that related aspects of disputes involving the same employee and the same "employment history" will be heard in different forums. Consequently, all parties would have expected to be involved in parallel and overlapping proceedings. This factor, in this case, favours the employer's position that issue estoppel should not be applied.

[40]    Criterion (b) looks at the purpose of the legislation giving rise to the first decision. I agree that it appears that the CRAA and the ITPR Guidelines intended something less than a full "court-like" process to determine non-disciplinary terminations. But whatever the intent, in this case what unfolded was a very "court-like" process. At a minimum, then, it can be said that the CRAA and the ITPR Guidelines are flexible enough to contemplate a range of processes and, therefore, this criterion does not assist. Looking at criterion (c), the availability of an appeal, judicial review was available to the employer. Whatever the reasons it had for not making use of that opportunity in this case, the availability of the remedy favours Ms. Sherman's position that issue estoppel should be applied.

[41]    Factor (d) focuses on the legal and procedural safeguards available to the parties in the ITPR process. As set out in paragraph 5 above, the parties enjoyed most of the procedural safeguards that one would find in any sophisticated quasi-judicial proceeding. While the reviewer's inability to summons witnesses and demand document production could, in the abstract, be a defect, there is no suggestion that in this case, any party or the reviewer was hampered by an absence of witnesses or documents. The process followed in this case favours applying issue estoppel.

[42]    In considering the expertise of the decision-maker, criterion (e), I am somewhat limited because all that I know of the ITPR reviewer is that he is a lawyer, with expertise in adjudicating entitlement to accident benefits at Ontario's Financial Services Commission. But as set out above, the decision itself demonstrates that the reviewer possessed the skills and experience to grapple with a considerable amount of evidence, some of it medical; resolve thorny procedural issues; manage complex legal issues around disability, accommodation and the obligations of employer; and prepare a lengthy decision that exhibits his analysis and command of the material before him. Consequently, there is no basis to conclude that the ITPR reviewer lacked expertise. This factor favours the application of issue estoppel in the proceedings before me.

[43]    Looking at the treatment of factor (f), the circumstances giving rise to the prior administrative proceedings, in Danyluk (above), the Court considered whether the party seeking to avoid the application of issue estoppel had, in the prior proceedings, been required to make or defend the claim in urgent and vulnerable circumstances that "...compromised their ability to adequately put forward their case for benefits or to respond to the case against them" (paragraph 78). In other words, was the party who lost in the prior proceeding hampered by the need to bring or defend the claim quickly, perhaps without legal advice, or otherwise without a real opportunity to assess the case, with the result that it would be unfair to visit the consequence of that "rough and ready" litigation on subsequent proceedings? In this case, both parties were well represented by legal counsel, in an ITPR process that extended over 19 days, spaced over a number of months. The ITPR process in this case was not "rough and ready" justice. Counsel for the employer argued, though, that because the reviewer determined that he had no jurisdiction to remedy events that had transpired before Ms. Sherman's termination, the parties would not have anticipated that issue estoppel would be claimed in a later proceeding. Applying it, counsel argued, is akin to giving the ITPR reviewer some jurisdiction over previous events to the extent that I treat some of his findings of fact and law as binding in respect of the grievances I am considering, which concern events before Ms. Sherman's termination.

[44]    In my view, the ITPR reviewer's determination that he had no jurisdiction to deal with matters other than Ms. Sherman's termination is not relevant. Whether issue estoppel is to be applied will not typically become an issue until after one proceeding is finished, and the next mounted, at which point the winning party seeks to prevent the losing party from litigating issues anew. Further, my determination about whether to prevent the re-litigation of some issues does not amount to giving the ITPR reviewer jurisdiction over these grievances, but is instead the application of an equitable principle of law intended to balance the need for finality in litigation against questions of fairness for the loser in the earlier proceedings.

[45]    Because the ITPR process gave the employer an opportunity to defend itself fully on the relevant issues, factor (f) favours Ms. Sherman.

[46]    Balancing all of the relevant criteria set out in Danyluk (above), and having particular regard to the factor of potential injustice, I am satisfied that the principle of issue estoppel should be applied.

Decision

[47]    The employer may not re-litigate before me the nine points determined by the ITPR reviewer. Counsel shall seek to agree about other findings the reviewer made to which the doctrine of issue estoppel should be applied, because those findings were fundamental to his decision-making. Failing agreement, the matter will be determined when the hearing reconvenes.

[48]    The parties should contact the Board's Registrar to schedule further dates.

Mary Ellen Cummings

Dated at Toronto, August 27, 2004