Sep 23, 2015

Don’t Estop me Now (From Applying Correctness): Hebron v University of Saskatchewan, 2015 SKCA 91

Hebron v University of Saskatchewan, 2015 SKCA 91 (CanLII)

Apologies for the title. Mentioning issue estoppel would have caused my page views to crash through the floor, which would have been a pity because there is a recent case that raises an interesting technical point about issue estoppel and standard of review.

In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 the Supreme Court applied a deferential standard (the patent unreasonableness standard mandated by B.C. legislation) to an administrative decision-maker’s application of the doctrine of issue estoppel and related concepts. There, the B.C. Human Rights Tribunal concluded it was not estopped from addressing a complaint that had already been resolved in another forum, a conclusion ultimately held to be unreasonable.

Despite her nod to deference, Abella J. drew on the “underlying principles” of issue estoppel, abuse of process et al to mandate a three-pronged inquiry for any administrative decision-maker:

[W]hether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself (at para. 37).

As I wrote: “Ironically, the “underlying principles” identified by the Court were transformed into a three-factor test just as rigid and formalistic as the test for issue estoppel applied by the BC Human Rights Tribunal!” In addition, the first of these questions — that of concurrent jurisdiction — has typically been said to require correctness review: see e.g. Dunsmuir at paras. 59-61. So what is a reviewing court to do when faced by an administrative application of issue estoppel: apply a deferential standard, as Figliola suggests, or apply correctness to the first question and reasonableness to the others?

In Hebron v University of Saskatchewan, 2015 SKCA 91, where a university student who had an internal right of appeal sought to make a human rights complaint, Caldwell J.A. took the second option:

Given the clear jurisprudence on the point, where—as here—a tribunal is asked to determine whether the matter before it rests exclusively with it, with a superior court or with another specialised tribunal, or whether there exists concurrent jurisdiction, it is plain that the tribunal’s answer to that question is reviewable by a superior court on the standard of correctness. I, therefore, find the chambers judge correctly decided to review the Chief Commissioner’s decision under the first leg of the Figliola framework on the standard of correctness (at para. 47).

He might have found further support for his segmentation of the issue-estoppel test in the recent Supreme Court decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (see my post here).

Mind you, as Giroux J.A. recently pointed out in dissent in Durocher c. Commission des relations du travail, 2015 QCCA 1384, this conclusion is not inevitable:

D’autre part, la question de déterminer s’il y a chose jugée et, davantage lorsqu’il s’agit de la chose jugée implicite, requiert une évaluation des faits de chaque espèce puisque la qualification juridique des faits allégués est essentielle pour apprécier l’identité de cause. Cet élément milite en faveur de la norme de la décision raisonnable (at para. 143).

My general preference is for a deferential approach that does not seek to segment the administrative decision, but Caldwell J.A.’s analysis certainly has support in the Supreme Court caselaw.