The Employment Standards Act, 2000 (the "Act")
provides a mechanism through which employees may file employment
standards complaints with the Ministry of Labour, including
complaints for the recovery of wages, benefits, termination pay and
severance pay. To ensure that employees could not file a civil
claim based on the same facts following the processing of a
complaint under the Act, section 97 prohibits employees from
commencing a civil action once a complaint was filed, unless the
complaint is withdrawn within two weeks after it is filed.
Anne Marie Frith's employment was terminated by Cable Bridge
Enterprises Limited ("Cable"). She was provided with
termination and severance pay. Ms. Frith disputed the amounts paid,
and filed a complaint under the Act in respect of the amounts paid
to her. Following the receipt of Ms. Frith's complaint, the
Ministry conducted an investigation, made certain findings and
scheduled a meeting with the parties. Shortly before the scheduled
meeting, and more than seven (7) months following the filing of her
complaint, Ms. Frith withdrew her complaint and commenced an action
in Small Claims Court raising the same matters raised in the
At trial Cable objected to Ms. Frith being allowed to proceed
with her action, relying on section 97 of the Act. Ms. Frith's
evidence was that she did not remember submitting a complaint to
the Ministry of Labour, she did not sign anything, she did not give
the Ministry any verbal instructions, and no hearing was
held. Despite extensive evidence that Ms. Frith did submit an
online complaint to the Ministry and sent correspondence to the
Ministry where she stated that "I am aware that if I go this
route, I cannot resubmit a claim with the Ministry of Labour",
the Small Claims Court judge concluded that there was no evidence
of a claim being filed under the Act, and allowed Ms. Frith to
proceed with her civil claim.
On appeal, the Divisional Court found that the
Small Claims Court judge made a "palpable and overriding error
of fact in circumstances where there was sufficient evidence on the
record for him to find that Ms. Frith had filed a complaint/claim
with the Ministry of Labour". Ms. Frith submitted that the
Court should exercise its inherent jurisdiction to extend the two
week period for withdrawal set out in the Act. The Court held that
courts will do so infrequently, and only in special circumstances
that include the absence of legal representation for the employee,
the absence of any work done by the Ministry on the employee's
complaint and the absence of prejudice to the employer. In this
case, Ms. Frith had access to and received legal advice relating to
her claim, the Ministry undertook an investigation, made findings
and scheduled a hearing, Cable suffered prejudice by engaging
significant staff time and resources responding to Ms. Frith's
complaint under the Act, and Ms. Frith's complaint was not
withdrawn within a short period of time. The Divisional Court found
that Ms. Frith's civil claim was statute barred, and she was
estopped from continuing her action.
This decision is the latest in a number of decisions where
courts are moving toward putting an end to forum shopping. As we
blogged, both the Divisional Court and the Supreme Court of
Canada have held that re-litigation of the same issues is to be
discouraged. This particular decision is good news for employers,
reinforcing the fact that once employees choose their forum of
litigation, they only have a small window of opportunity to change
their mind, and will not be permitted to change forums after a
claim had already been fully or even partially processed.
Please contact one of the CCPartners team members if you require
assistance with defending the same claim in different forums, or if
you have questions about this decision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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