Anwar Group International Ltd. - v. -, 2015 SKPC 167

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: November 26, 2015 2015 SKPC 167 File: SC#596 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Anwar Group International Ltd. - and - Jeannine Poulin _____________________________________________________________________________ FIAT R.D. JACKSON , J _____________________________________________________________________________ [ 1 ] The proposed plaintiff, Anwar Group International Ltd. (Anwar) has submitted a claim to this Court for issue.

For the reasons that follow the claim will be permitted to issue in modified form as set out. [ 2 ] Anwar claims the sum of $2,550.00 due and owing from its former employee, the proposed defendant Jeannine Poulin (Poulin), comprised of $1,500.00 paid in cash to her and $1,050.00 paid for a residential move on her behalf. [ 3 ] The claim regarding the $1,500.00 is set out in paras. 4 to 7 inclusive as follows: 4. The plaintiff paid the Defendant cash with every pay cheque for the sum of $100.00 in total for all period during 2013 the sum of $1,500.00.

5. The Defendant filed a claim against the Plaintiff for unpaid wages and the Labour Standards Division of Saskatchewan did not include the cash paid to the Defendant as wages. 6. The Defendant accepted in appeal hearing that she received cash with her paycheques. 7. The Plaintiff believes that as those cannot be included as wages or compensation.

The Defendant owe that amount to the Plaintiff as debt. [ 4 ] In support of this position, Anwar filed an Adjudicator’s Decision dated July 27, 2015, which was an appeal on the record of a wage assessment levied pursuant to the Saskatchewan Employment Act , SS 2013 C.-15 .1(as amended). [ 5 ] A review of the Adjudicator’s decision, however, reveals that evidence taken at this hearing (confirmed to be under oath) involving the exact same parties as set out in the proposed claim herein, dealt squarely with this issue.

Having heard the evidence presented, the Adjudicator made findings of fact accepting the employee Poulin’s evidence over the two witnesses on behalf of Anwar that $500.00 and not $1,500.00 as alleged, was advanced, and that such amounts were not deductible as wages. How the $500.00 was applied is unclear as there were other calculations involving overtime and holiday pay made by the adjudicator. Irrespective, this matter has been fully heard and determined. [ 6 ] The plaintiff herein now seeks to have this issue relitigated in the forum of the Provincial Court.

Such is not permissible by virtue of the legal doctrine of Issue Estoppel . This principle is designed for this very purpose i.e. to promote finality and economy of proceedings between the parties.

Black ’s Law Dictionary defines it thus: An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. [1] [ 7 ] Further, the Court notes that the plaintiff advanced the position at the Adjudication Hearing that the $1,500.00 was provided as “. . . an expression of appreciation, but also to cover holiday pay and pay for statutory holidays (para [15]).” Having already proffered this evidence under oath in the former proceeding, the attempt now to characterize any such payment as a “loan” is repugnant and would not be countenanced by this Court.

As well, there was specific testimony regarding a loan of $800.00 involving a separate matter which was duly taken into account and deducted from the wage assessment by the Adjudicator. [ 8 ] For these reasons, no claim can be made against the proposed defendant for the $1,500.00 alleged owing to Anwar. However, there does not appear to be any reference or previous representation at the Adjudication Hearing concerning the claim of $1,050.00 for moving costs paid on behalf of Poulin.

Therefore, this portion can proceed to be submitted in re-drafted form deleting reference to the alleged indebtedness of $1,500.00. [ 9 ] The Court further orders that a copy of this Fiat shall be included in the plaintiff package of materials to be served on the proposed defendant, Poulin, should the matter proceed. ___________________ R.D.

Jackson, J [1] Black ’s Law Dictionary , copyright 1999, West Group Publishing, 7 th ed., at p. 256, headed “Collateral Estoppel” See also: Penner v Niagara Regional Police Services Board , 2013 SCC 19 , which held that tribunal decisions are subject to the principle of Issue Estoppel.