The appeal by the Nova Scotia Human Rights Commission (the “Commission”) from a preliminary decision of the Board of Inquiry (the “Board”) was dismissed. The Court of Appeal, applying a standard of review of correctness, held that the Board did not err in determining that the trial judge, in a parallel civil action for wrongful dismissal commenced by the complainant, had jurisdiction to deal with allegations of discrimination.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Employment law – Wrongful dismissal – Parallel action – Jurisdiction of court to hear human rights complaint – Estoppel and res judicata – Judicial review – Standard of review – Correctness

Kaiser v. Dural, a division of Multibond Inc., [2003] N.S.J. No. 418, Nova Scotia Court of Appeal, November 20, 2003, Saunders, Chipman and Hamilton JJ.A.

Kaiser was employed by Dural for 11 months and was then fired. Prior to being fired, Kaiser was diagnosed with a medical illness that eventually prevented him from working. As a result of being fired, he did two things: (1) sued Dural in the Supreme Court for wrongful dismissal; and (2) made a complaint under the Human Rights Act, R.S.N.S. 1989, c. 214 (the “Act”). In his Statement of Claim in the Supreme Court, Kaiser claimed that he was fired without just cause and without appropriate notice. He further claimed that his dismissal was unjust and discriminatory since he was fired because of his medical condition. Kaiser claimed increased damages due to the discriminatory and wrongful method of his firing. In his complaint under the Act, Kaiser claimed Dural discriminated against him by firing him because of his medical condition.

The wrongful dismissal action proceeded first and Kaiser was successful at trial. Kaiser received damages calculated on nine months’ notice in addition to compensation for a car, vacation pay benefits and pre-judgment interest. The trial judge found that Kaiser’s medical condition was not taken into account when Dural decided to fire Kaiser as it was determined that this decision was made prior to Kaiser knowing of his medical condition.

With respect to the Human Rights complaint, a Board was appointed under the Act to hold a hearing into Kaiser’s complaint. A preliminary hearing was held to consider Dural’s application that the complaint should be dismissed without a full hearing on the basis of res judicata, issue estoppel or abuse of process. The Board found that the Commission and Kaiser were estopped from proceeding to a full hearing since a trial judge had already adjudicated the same issue. The Board found that the trial judge had jurisdiction to adjudicate the discrimination issue since it arose in the context of a wrongful dismissal action. The Commission appealed the Board’s decision on this preliminary point.

In reviewing the standard of review to be applied to the Board’s decision, the Court of Appeal found that the appropriate standard was one of correctness. The court held that the Board did not err in determining that the trial judge had jurisdiction to deal with Kaiser’s claim that Dural discriminated against him in the context of a wrongful dismissal action. The court found that the facts of this case distinguished it from the decision of the Supreme Court of Canada in Bhadauria v. Seneca Court of Applied Arts and Technology, [1981] 2 S.C.R. 181 (S.C.C.). In this case, Kaiser was properly before the Supreme Court on his wrongful dismissal action and had made the issue of discrimination an intrinsic part of his wrongful dismissal case that the trial judge had to consider. The Court of Appeal found that the Board correctly stated and applied the law of res judicata and issue estoppel as laid out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 where the court confirmed that the preconditions to the operation of the issue of estoppel are:

(1)  that the same question has been decided;

(2)  that the judicial decision which is said to create the estoppel was final; and

(3)  that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.

The Court of Appeal held that the Board did not err in finding that the Commission and Kaiser were estopped from proceeding to a full hearing on Kaiser’s complaint.

In the result, the appeal of the Commission was dismissed.

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