Kurik v CAS Ventures Ltd., 2023 BCSC 488 (CanLII), <https://canlii.ca/t/jwff6>
The plaintiff, employee, sought damages for breach of contract, aggravated damages, bad faith damages and special damages from the employer, a subcontractor. A previous complaint to the Employment Standards Branch for “regular wages” was dismissed. The Branch also found that the contract had been frustrated because the plaintiff was terminated because the contractor barred him from the job site. The defendant applies to have the plaintiff’s claim struck or dismissed on the basis it is barred by the doctrine of res judicata.
The Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 . In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada addressed the doctrine of res judicata and its discretionary nature.
In Danyluk, non-exhaustive factors guiding a Court’s exercise of discretion were described at paras. 67–81:
- 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;
- e) The expertise of the administrative decision maker;
- f) The circumstances giving rise to the prior administrative proceedings; and
- g) The potential injustice.
The issue before the court was whether is would be fair to apply the doctrine of issue estoppel to prevent the plaintiff from litigating his wrongful dismissal claim?
The Court found that there were significant differences between the Employment Standards Branch proceeding and the action action before the Court, which required a trial. The purpose of the Employment Standards Act was limited. In the circumstances, to apply issue estoppel would prevent the plaintiff from pursuing his claim—a claim involving significantly more in damages than he could receive in the Employment Standards process. The Court concluded that it would be unjust to apply the doctrine of issue estoppel. Justice requires that the plaintiff be entitled to pursue his claim for wrongful dismissal in court.