BIRGIT SOLDAN Plaintiff - v. -, 2023 SKKB 127

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 127 Date: 2023 06 19 Docket: QBG-MF-00031-2020 Judicial Centre: Melfort ___________________________________________________________________________ BETWEEN: BIRGIT SOLDAN Plaintiff - and - PLUS INDUSTRIES INC. Defendant Counsel: Audrey L. Sembalerus for the plaintiff Christopher J. McGuinness for the defendant ___________________________________________________________________________ FIAT BARDAI J.

June 19, 2023 ___________________________________________________________________________ [ 1 ] The defendant, Plus Industries Inc. [Plus Industries], applies to strike the claim of the plaintiff, Birgit Soldan [Ms. Soldan], on the basis of abuse of process pursuant to Rule 7-9(2)(

e) of The Queen’s Bench Rules . The application contends that the matters raised in the statement of claim have already been adjudicated by the Saskatchewan Human Rights Commission [Commission] such that issue estoppel and res judicata apply. Plus Industries says that the claim of Ms. Soldan represents a collateral attack on the decision of the Chief Commissioner and is an abuse of the Court’s process. [ 2 ] The background facts are largely uncontested. Ms.

Soldan began employment with Plus Industries on July 3, 2017, as a supportive living care worker, earning $17.55 an hour and working approximately 19 hours a week. [ 3 ] On February 15, 2018, Ms. Soldan’s family home was destroyed in a fire in which Ms. Soldan suffered injury. A note from her doctor was provided to Plus Industries indicating that Ms. Soldan would be unable to work from February 16, 2018, to May 25, 2018, and would return to work on May 31, 2018. Ms.

Soldan did not return to work on May 31, 2018, and she was deemed to have abandoned her employment by Plus Industries, effective June 5, 2018, though Ms. Soldan did ultimately provide a second note from her treating physician. [ 4 ] Ms. Soldan filed complaints with the Ministry of Labour Relations and Workplace Safety and with the Saskatchewan Human Rights Commission.

Those complaints have now been disposed of after Plus Industries paid one week’s pay in lieu of the notice required by The Saskatchewan Employment Act , SS 2013, c S-15.1 , and a further $20,000.00 in relation to the complaint before the Commission. [ 5 ] In the matter before the Commission, Plus Industries offered to settle the complaint of Ms. Soldan for $20,000.00. The offer was rejected, and Plus Industries asked the Commission to dismiss the complaint pursuant to s. 33(3) of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ], which provides: 33

(3) If, during the mediation entered into pursuant to subsection (1), the person against whom the complaint is made proposes an offer of settlement that the Chief Commissioner considers fair and reasonable but that the complainant rejects, the Chief Commissioner may dismiss the complaint. [ 6 ] Ultimately, the Chief Commissioner found the proposed $20,000 offer to be fair and reasonable and, accordingly, dismissed the complaint upon Plus Industries paying Ms. Soldan $20,000.00, which amount was paid.

Judicial review of the decision of the Chief Commissioner dated January 10, 2020, was never sought. [ 7 ] The application of Plus Industries seeks that the claim of Ms. Soldan be struck on the basis of res judicata , issue estoppel, abuse of process, collateral attack and that the claim fails to disclose a reasonable cause of action. Plus Industries says it should not have to defend itself over and over again for the same alleged wrongs. Certainly, in Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 SCR 460 [ Danyluk ] , this idea was distilled to its core principle at paragraph 18 of the decision:

[18] The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA [ Employment Standards Act , R.S.O. 1990, c. E.14 ] as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause.

Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [ 8 ] Plus Industries says that Ms. Soldan has already had her bite at the cherry and she does not get to take another. [ 9 ] Ms. Soldan, for her part, argues that: (

a) the decision of the Chief Commissioner was limited to awarding damages for loss of dignity, feelings and/or self-respect, and that the balance of her claims have not been decided and should be allowed to proceed; (

b) the claim does, in fact, plead a reasonable cause of action; (

c) the Commission lacked jurisdiction to grant the relief sought in the claim, in particular, in respect of punitive damages, aggravated damages and damages for inconvenience; (

d) the claim is not an attempt to relitigate matters already determined as the claim raises new issues or questions that were never decided and seeks to recover additional damages where the actions of Plus Industries were not in contravention of the Code ; and (

e) in the event the claim does offend principles of res judicata , issue estoppel and/or abuse of process, the Court should nevertheless exercise its discretion and allow the claim to proceed in any event. The decision of the Commission was limited to awarding damages for loss of dignity, feelings and/or self-respect [ 10 ] Ms. Soldan has filed an affidavit in which she attests that the $20,000.00 payment was “only to be attributed to damages I suffered to my dignity, feelings and/or self-respect in accordance with s. 40 of the Code .

The Payment was also supposed to be free of tax.” (Affidavit of Birgit Soldan, sworn May 1, 2023, paragraph 14) Further, in the brief filed on behalf of Ms. Soldan, there is a suggestion that the payment did not or may not include compensation for wrongful dismissal. [ 11 ] The decision of the Chief Commissioner, in my view, cannot be fairly read in such a restrictive manner. The Chief Commissioner in his decision, at pages 6 to 8, writes: In

summary, if this complaint proceeded to a hearing, it is reasonable to expect that a Court would award Ms. Soldan $8,000.00-$12,000.00 under s. 40 of the Code . Based on all of the foregoing, I attribute $10,000.00 as a reasonable settlement amount under s. 40 of the Code . … As noted at the outset, the claims for lost wages and pay in lieu of notice of termination are duplicative. She claims a total of $50,750.00 in wages. Ms. Soldan worked part-time, earning $17.55 per hour. In 2017, she earned $12,727.36 in gross wages. In 2018, she earned $4,239.00 in gross wages. Ms.

Soldan was employed for a total of 7½ months. This equates to $2262.00 per month. … Based on all of the foregoing, a reasonable range for Ms. Soldan’s claim for loss of income at a hearing would be based on zero to six months of earnings. I find that Ms. Soldan could expect an award for lost wages of $0.00-$13,572.00. A reasonable settlement amount for loss of wages would be $6,786.00. Given Ms.

Soldan’s brief period of employment, this amount is likely to exceed any potential claim for wrongful dismissal damages. [ 12 ] It is evident that the Chief Commissioner, in finding that the settlement proposed was reasonable, considered more than loss of dignity, feelings and/or self-respect and also assessed losses for wrongful termination and benefits. It is equally clear that in the context of Ms. Soldan’s complaint, she sought damages for more than loss of dignity, feelings and self-respect. She claimed damages for lost wages, benefits, legal fees and punitive damages.

The findings of the Chief Commissioner addressed all of these various heads of damage. The claim does in fact plead a reasonable cause of action [ 13 ] The application of Plus Industries is brought pursuant to Rule 7-9 which provides: 7-9

(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be;

(

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [14] There are two subsections of Rule 7-9(2) which are engaged in the present application based on the argumentsset out in Plus Industries’ brief. Plus Industries argues that Ms.

Soldan’s lawsuit discloses no reasonable cause of action and, further, thatthe claim is an abuse of process. [15] In an application to strike a claim for failing to plead a reasonable cause of action pursuant to Rule 7-9(2)(a), thequestion is whether there is a reasonable chance of success for the plaintiff, assuming the plaintiff proves everything alleged in the claim.A plaintiff has the obligation to plead sufficient facts to establish the legal elements of the cause of action.

In considering this type ofapplication, the Court may only consider the claim, particulars provided pursuant to a demand for particulars and any document referredto in the claim upon which the plaintiff must rely. Assuming the plaintiff’s allegations as true allows the Court to consider the plaintiff’scase at its highest. The jurisdiction to strike some or all of a claim on the basis of Rule 7-9(2)(

a) should only be exercised in cases whereit is plain and obvious and beyond doubt that the claim cannot succeed. See, for example: R v Imperial Tobacco Canada Ltd., 2011 SCC42, [2011] 3 SCR 45; Merchant Law Group LLP v Slusar, 2022 SKCA 75; and Saskatchewan Power Corporation v Swift Current (City),2007 SKCA 27, [2007] 5 WWR 387. [16] The Court has two concerns with Plus Industries’ argument on this point. The first is that the notice ofapplication does not reference Rule 7-9(2)(a), which means that Ms.

Soldan would not have had appropriate notice that her claim wasbeing challenged on the basis that it fails to disclose a reasonable cause of action. In order to respond to an application, the respondentneeds to know the basis on which the application is brought. The notice of application of Plus Industries fails to provide the necessarynotice. [17] The second problem is that the claim does identify a recognized cause of action and pleads sufficient facts insupport of that cause of action, being wrongful dismissal. Specifically, the claim contends that Ms.

Soldan was in an indefinite contractof part-time employment with Plus Industries and that Plus Industries terminated her employment without cause when she became ill,thereby breaching the terms of the employment agreement. In short, Plus Industries’ argument that the statement of claim fails to plead areasonable cause of action cannot succeed. The Commission lacked jurisdiction to grant the relief sought in the claim, in particular in respect of punitive damages,aggravated damages and damages for inconvenience [18] The purpose of the Code is set out in s. 3 which states: 3 The objects of this Act are: (

a) to promote recognition of the inherent dignity and the equal and inalienable rights of all members of the human family; (

b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminatediscrimination. [19] The role of human rights legislation was described by the Supreme Court of Canada in Battlefords and DistrictCo-operative Ltd. v Gibbs, (SCC), [1996] 3 SCR 566 at para 18, as follows: [18] ... This Court has consistently held that human rights legislation is “fundamental” or “quasi-constitutional” and as such should beinterpreted in a broad and purposive manner. As Lamer J. (as he then was) stated in Insurance Corp. of British Columbia v.

Heerspink, (SCC), [1982] 2 S.C.R. 145, at pp. 157-58: When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in thatjurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that theyconsider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. … [20] When interpreting legislation, including the Code, the Court is guided by what is routinely described as themodern rule of statutory

interpretation: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. ... See: Ludco Enterprises Ltd. v Canada, 2001 SCC 62, [2001] 2 SCR 1082, and E.A. Driedger, Construction of Statutes, 2d ed (Toronto:Butterworths, 1983) at 87. [21] Ms. Soldan characterizes the decision of the Chief Commissioner as having ordered punitive, aggravated andinconvenience damages. She maintains that the Chief Commissioner lacks jurisdiction to award such damages.

This position is notentirely accurate as it mischaracterizes the authority that was exercised by the Chief Commissioner. The Chief Commissioner did notaward damages, punitive or otherwise. Rather, he assessed whether the offer of settlement of Plus Industries was fair and reasonable. Thepower exercised by the Chief Commissioner originates in s. 33(3) of the Code.

[ 22 ] It is of note that in addition to having the express power to assess the reasonableness of a proposed but unaccepted settlement, the Chief Commissioner is also required to approve all agreed-to settlements. Section 31(2) states: 31

(2) A complaint shall be considered settled for the purposes of this Act only if the Chief Commissioner has approved the terms of the settlement. [ 23 ] In other words, the structure of the Code is such that before a claim is settled, the Chief Commissioner must approve the settlement and, if a reasonable offer of settlement is made but not accepted, the Chief Commissioner has the power to dismiss a complaint if the Chief Commissioner finds the offer to be fair and reasonable.

This is a role and responsibility conferred by the Legislature on the Chief Commissioner, and on the Chief Commissioner alone. [ 24 ] Assessing whether a proposed settlement is reasonable requires an assessment of the claim and what might be awarded to the claimant in terms of compensation if the matter proceeded to Court for a hearing. That necessarily entails an assessment of what may be awarded by a court pursuant to ss. 39 and 40 of the Code . The Code provides in part: 2

(1) In this Act: … “court” means the Court of Queen’s Bench [King’s Bench]; … 39

(1) If the court finds that there has been a contravention of this Act or any other Act administered by the commission, the court may, subject to

section 41, order any person to do any act or thing that in the opinion of the court constitutes full compliance with that provision and to rectify any injury caused to any person and to make compensation for that injury, including: … (

c) requiring that person to compensate any person injured by that contravention for any or all of the wages and other benefits of which the injured person was deprived and for any expenses incurred by the injured person as a result of the contravention; (

d) requiring that person to pay any compensation that the court considers appropriate, to any person injured by that contravention, for any or all additional costs of obtaining alternative goods, services, facilities or accommodations and for any expenses incurred by the injured person as a result of the contravention; and … 40 In addition to any order the court may make pursuant to

section 39 , the court may order the person who has contravened or is contravening that provision to pay any compensation to the person injured by that contravention that the court may determine, to a maximum of $20,000, if the court finds that: (

a) a person has wilfully and recklessly contravened or is wilfully and recklessly contravening this Act or any other Act administered by the commission; or (

b) the person injured by a contravention of this Act or any other Act administered by the commission has suffered with respect to dignity, feelings or self-respect as a result of the contravention. [ 25 ] Ms. Soldan’s counsel argues that ss. 39 and 40 of the Code do not permit the Commission to award aggravated, punitive or inconvenience damages. As a starting point, the powers set out in ss. 39 and 40 are granted to the Court, which the legislation defines as the Court of Queen’s Bench (now King’s Bench).

I agree that the Chief Commissioner and Commission do not have the power to award punitive, aggravated or inconvenience damages. This power rests with the Court. However, the Chief Commissioner was not awarding and did not award damages; rather, he assessed the reasonableness of the offer by looking at what might be awarded by the Court at a hearing. On page 6 of his decision, he says, “… it is reasonable to expect that a Court would award ….” [ 26 ] I do not accept the suggestion that the Code does not permit these types of damages from being awarded.

The language of the legislation allows the Court to award these damages. [ 27 ] Aggravated damages are damages to compensate for such things as a person’s feelings or loss of dignity. In principle, these are a part of and not in addition to general damages. See for example: Fidler v Sun Life Assurance Co. of Canada, 2004 BCCA 273 , 239 DLR (4th) 547 ; A.(M.) v Canada (Attorney General), 2003 SKCA 2 , 224 DLR (4th) 688 ; and Labre v ICR Property Management Inc. , 2022 SKKB 256 . [ 28 ]

Section 40(

b) deals specifically with the issues that aggravated damages are designed to address. Accordingly, there is jurisdiction within the Code for an award by the Court of aggravated damages. [ 29 ] Punitive damages are aimed not at compensating a successful claimant but are rather intended to punish the conduct of a wrongdoer. These damages are awarded in exceptional cases for malicious, oppressive and high-handed misconduct that offends the Court’s sense of decency.

See: Honda Canada Inc. v Keays, 2008 SCC 39 , [2008] 2 SCR 362 ; Whiten v Pilot Insurance Co. , 2002 SCC 18 at para 36 , [2002] 1 SCR 595 ; and Rekken v Saskatchewan (Health Region #1) , 2015 SKCA 36 at para 26 , 384 DLR (4th) 174 . [ 30 ] In 2018, the current Code was passed. Upon its introduction in 2017, Minister Morgan described the Code as: … essential legislation that promotes and protects individual dignity and equality rights. The code prohibits discrimination based on

grounds set out in the code and also includes a bill of rights, making it illegal for someone to violate another person’s fundamental rights and freedoms. This bill will repeal and replace The Saskatchewan Human Rights Code with a new bilingual Act. There are no changes in substance to the code, thereby ensuring that the protections offered continue to operate. [Saskatchewan, Legislative Assembly, Debates and Proceedings ( Hansard ), 28th Leg, 2d Sess (27 November 2017) at 3045 (Hon.

Don Morgan)] [ 31 ] As noted by the Chief Commissioner at page 4 of his decision, the amount set out in s. 40 of the Code was amended in 2014 from the original amount set out in the legislation, being $10,000. This amendment occurred under the previous iteration of the Code , The Saskatchewan Human Rights Code , SS 1979, c S-24.1 (rep), which until December 7, 2014, contained the following language at s. 31.4: Order respecting compensation 31.4 The court may, in addition to any other order the court may make pursuant to

section 31.3, order the person who has contravened or is contravening that provision to pay any compensation to the person injured by that contravention that the court may determine, to a maximum of $10,000, if the court finds that: (

a) a person has wilfully and recklessly contravened or is wilfully and recklessly contravening any provision of this Act or any other Act administered by the commission; or (

b) the person injured by a contravention of any provision of this Act or any other Act administered by the commission has suffered with respect to feeling, dignity or self-respect as a result of the contravention. [ 32 ] In 2014, by virtue of Bill No. 171 (Saskatchewan Legislative Assembly, online: <https://docs.legassembly.sk.ca/legdocs/Bills/27L4S/Bill27-171.pdf> (26 May 2023)), The Saskatchewan Human Rights Code Amendment Act , 2014 , SS 2014, c 33 [ Amendment Act ], s. 31.4 of the previous iteration of the Saskatchewan Human Rights Code was amended by striking out $10,000 and substituting $20,000.

Section 10 of the Amendment Act reads: 10

Section 31.4 is amended in the portion preceding clause (

a) by striking out “$10,000” and substituting “$20,000”. [ 33 ] With respect to the increase from $10,000 to $20,000, the Hon. Mr. Wyant commented as follows during the second reading of Bill No. 171: The code contains a provision that allows the court to award compensation to an injured person where that person has suffered with respect to feeling dignity or self-respect or where the party who has contravened the code has done so in a wilful or reckless manner. This form of compensation is in addition to other losses suffered, such as lost wages.

The bill will increase compensation that the court can order with respect to dignity and wilful reckless behaviour from [$]10,000 to $20,000. … And I think some of the notions as we look at the bill itself overall, of raising fines from [$]10,000 to $20,000, those fines really act as a deterrent .... [Emphasis added] [Saskatchewan, Legislative Assembly, Debates and Proceedings ( Hansard ), 27th Leg, 4th Sess (3 December 2014) at 6237-6238 (Hon. Gordon Wyant)] [ 34 ]

Section 39 of the Code is about providing compensation for injuries sustained. Punitive damages are not about compensating a claimant but, rather, punishing a wrongdoer.

Section 40 (

a) allows the Court to award compensation where a person wilfully and recklessly contravenes the Code . This

section is clearly focused on the conduct of the wrongdoer rather than the loss sustained by the claimant. The intention of the Legislature is clear. This provision is focused on addressing the behavior of the wrongdoer. It is about punishing poor conduct and deterring others from such behaviour. The focus is not the claimant’s losses but the wrongdoer’s actions. Accordingly, the Code does allow the Court to award punitive damages subject to the provisions of s. 40 . [ 35 ] In terms of inconvenience damages, s. 39(1) allows the Court to provide compensation for “any injury”, including those listed in the section. The fact that the legislation uses the word “including” means that the

section is not limited to the list provided. The Court has the power to rectify any injury by awarding compensation for such injury. The language of ss. 39 and 40 of the Code together is broad enough to cover all manner of injuries arising in the context of an employment situation where the employer is found to have wrongfully terminated an employee, in breach of the Code . This

interpretation is consistent with the purposive approach and the language of the

section when placed in the context of the legislation as a whole, including consideration of its overall purpose. [ 36 ] The bottom line is that the Chief Commissioner must assess whether an offer is fair and reasonable. The only way to do that is to assess what the Court (as opposed to the Commission) may order at a hearing. The Court has broad powers pursuant to s. 39 and s. 40 of the Code , and those powers include the power to award damages, including punitive and aggravated damages for breach of the Code up to $20,000.

The Chief Commissioner did not award damages but, rather, assessed what a court may order pursuant to ss. 39 and 40 of the Code . This is exactly what s. 33(3) of the Code requires the Chief Commissioner to do. (

d) Striking the claim on the basis of res judicata [ 37 ] An application to strike a claim for abuse of process, issue estoppel or res judicata is based on an entirely different footing than an application to strike for failing to disclose a reasonable cause of action. Plus Industries’ application to dismiss an action on the basis of res judicata is based on the argument that the matter has already been decided. Res judicata may be made out

where either the issue has been decided (issue estoppel) or the cause of action has been determined in a previous proceeding (cause of action estoppel). The distinction between the two was described in Bouvier v Bouvier , 2023 SKCA 17 at para 14 , citing from Donald J.

Lange, The Doctrine of Res Judicata in Canada, 5th ed (Toronto: LexisNexis, 2021) at 1: … issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding … See also: R v Sullivan , 2022 SCC 19 at para 67 [ Sullivan ]; British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 , [2011] 3 SCR 422; and Cliffs Over Maple Bay Investments (Re) , 2011 BCCA 180 , [2011] 8 WWR 266 [ Maple Bay ]. [ 38 ] In order for Plus Industries to succeed in an argument of issue estoppel, it must show that: (

a) the same question has been decided in an earlier proceeding; (

b) the decision made in the earlier proceeding is a final decision; and (

c) the parties to that previous decision are the same or their privies in the subsequent proceeding. [ 39 ] Where the above criteria are met, the Court nevertheless retains discretion to deny relief in order to achieve fairness in the circumstances of a given case. See: Danyluk and Maple Bay . [ 40 ] By contrast, cause of action estoppel would require that Plus Industries demonstrate that: (

a) there has been a final decision by a court of competent jurisdiction in a prior action; (

b) the parties must have been the same or in privity with the parties in the prior action; (

c) the cause of action in the current claim and previous matter must not be separate and distinct from the matter raised in the subsequent proceeding; and (

d) the basis of the cause of action and the subsequent lawsuit was argued or could have been argued in the prior action had the parties exercised reasonable diligence. See: The Catalyst Capital Group Inc. v VimpelCom Ltd. , 2019 ONCA 354 at paras 24-25 and 50-51 , 145 OR (3d) 759 , and Maple Bay . [ 41 ] As a starting point, when considering res judicata , it is necessary to identify the issues and causes of action raised in the statement of claim as well as the issues and causes of action dealt with in the previous proceeding, which, in this case, is the complaint brought before the Commission.

Allegations before the Commission as set out in the complaint and the decision Allegations set out in the statement of claim Complainant’s brief description of the nature of the violation: 1. I have been discriminated against by my employer, Plus Industries Inc., because of my disability. 2. On July 3, 2017, I was employed by Plus Industries Inc as a Supportive Living Care Worker. 3. On March 23, 2018, I informed by employer of my doctor’s advice to commence a medical leave until April 22, 2018. My medical leave was further extended by my doctor to August 30, 2018. 4.

On May 30, 2018, while still on a medical leave, my employer terminated my employment. 5. I have reason to believe and do believe that the actions of Plus Industries Inc. constitute discrimination in employment as they failed to accommodate my disability to the point of undue hardship and refused to continue to employ me because of my disability, contrary to

Section 16 of The Saskatchewan Human Rights Code . [Complaint, paragraphs 1-5, from June 25, 2018] 4. The Plaintiff was first employed with the Defendant on or about July 3, 2017 as a direct support worker, under an indefinite contract of part-time employment. 5. On or about February 16, 2018, the Plaintiff was no longer able to work, due to disability that stemmed from a house fire at the Plaintiff’s residence, and went on sick leave. … 9.

Without cause and without any notice to the Plaintiff, the Defendant terminated the Plaintiff’s employment, thereby breaching the terms of the employment contract of indefinite employment. … 14. The Plaintiff claims damages for wrongful dismissal and for failure to provide the Plaintiff with adequate notice of her dismissal. Such damages include, but are not limited to, salary, benefits, lost bonus, and other entitlements that the Plaintiff received from the Defendant during the course of her employment. … 18.

The Plaintiff further says that the Defendant has conducted itself in a high handed fashion and has acted in bad faith in

_________________________________ Ms.

Soldan claimed the following relief in thecontext of the matter before the Commission: • $29,750.00 in lost wages; • $29,640.00 in pension contributions; • Reinstatement to other former position withPlus; • Approximately $13,800.00 in out-of-pocketmedical and dental expenses; • $32,000.00 for life insurance benefits; • $21,000.00 for pay in lieu of notice oftermination (in addition to lost wages asclaimed above); • $481.56 for a Christmas bonus; • Legal fees in an amount to be determined; • A tax gross-up of 30%; • Punitive and aggravated damages in anunspecified amount. [Chief Commissioner’s letter of January 10,2020] wrongfully dismissing the Plaintiff and in itsdealings with the Plaintiff concerning thedismissal.

The bad faith conduct of theDefendant includes, but is not limited to, thefollowing: a. the Defendant filed numerous Records ofEmployments [sic] with Service Canada, alllate and with improper or false information onthem, which prevented the Plaintiff fromreceiving Employment Insurance after herwrongful termination; b. the Defendant terminated the Plaintiffwithout asking for additional medicalinformation, claiming that the Plaintiffabandoned her job; and c. the Defendant alleged that the Plaintiffabandoned and quit her position with nosupport of the same. … 20.

The Plaintiff therefore claims against theDefendant: (

a) damages for wrongful dismissal in anamount to be determined at trial; (

b) damages pursuant to the principlesarticulated in Wallace v United Grain Growers, (SCC), [1997] 3 SCR 701and Honda v Keays, [2008 SCC 39], 2008 SCC39 , [2008] 2 SCR 362, includingaggravated and punitive damages, in an amountto be determined at trial; (

c) general damages for inconvenience in anamount to be determined at trial; (

d) interest pursuant to the provisions of ThePre-Judgment Interest Act, SS 1984-85-86,c. P-22.2; (

e) costs of this action; and (

f) such further and other relief the Plaintiffmay request and this Honourable Court mayallow. [Statement of Claim] [42] The Chief Commissioner, in his ruling of January 10, 2020, found: (

a) liability was established in that there was substantial evidence supporting a finding of a breach of s. 16 of the Code by PlusIndustries (page 2); (

b) general damages, hurt feelings, pain, suffering and punitive damages for breach of the Code are dealt with in s. 40 of the Code. Ms.Soldan suffered emotionally and developed a mental disorder after her home burned down. This rendered her unable to attend workthough she ultimately withdrew from medical care. The Commission accepted that Ms. Soldan suffered with respect to dignity, feelingsand self-respect and that the termination came at a time when she was vulnerable (pages 4-6); (

c) Ms. Soldan’s claim for loss of reputation and hurt feelings arising from a record of employment [ROE] suggesting she hadabandoned her employment had not been made out (pages 5-6); (

d) Ms. Soldan failed to fully mitigate her losses by failing to fully pursue regular benefits from Employment Insurance (page 6); (

e) in determining Ms. Soldan’s claim for lost wages, pay in lieu of notice, pension contributions, Christmas bonus and tax gross-up, theCommission notes on page 7: a. Human rights legislation must be interpreted in a broad and purposive manner. Remedies in human rights cases serve to act aseducational tools and deterrents to prevent future discrimination;

b. Inadequate damage awards can undermine human rights legislation and perpetuate discrimination by further marginalizing victims and minimizing the seriousness of contravening the Code ; c. Compensation for lost wages as a result of discriminatory conduct is provided for in all human rights codes in Canada. Although methods of loss calculation vary, “at its core, the measure of damages requires that an employer be required to compensate an employee for any financial loss suffered as a result of having been a victim of discriminatory employment practices”; d.

Damage assessment “must accord with the root principle that the injured party should be put back into the position she would have enjoyed had the wrong not occurred, to the extent that money is capable of accomplishing that goal”; and e. Lost wage compensation under human rights legislation “is not limited to what would be payable in an action for wrongful termination.” To provide a remedy in the case of wrongful dismissal, payment compensates for a notice period prior to termination. In the case of discrimination, compensation is intended to cover damages resulting from the discrimination. (

f) in terms of damages, the Commission found that if the matter were to proceed to a hearing, an appropriate award may consist of the following: s. 40 damages $10,000.00 lost wages $6,786.00 lost pension contributions from the employer $500.00 lost Christmas bonus $481.56 lost benefits (insurance, dental coverage, prescription medication) $1,000.00 total $18,767.56 (

g) The Chief Commissioner, in his conclusion, found that if Ms. Soldan’s complaint was to proceed to a hearing, she could reasonably expect an award of between $17,000 to $20,000 and, accordingly, the offer of $20,000.00 (without deduction) from Plus Industries was reasonable and the complaint was dismissed upon payment being made. Not an attempt to relitigate [ 43 ] In this case, when the criteria of issue estoppel and cause of action estoppel are examined in light of the decision of the Chief Commissioner, the complaint filed with the Commission and the allegations set out in the claim, it is evident that in relation to cause of action estoppel: (

a) there has been a final decision by a court of competent jurisdiction in a prior action: The Chief Commissioner rendered a decision that the settlement proposed by Plus Industries was/is reasonable. Judicial review was never sought in respect of such decision. (

b) the parties must have been the same or in privity with the parties in the prior action : The parties before the Commission are the same parties before the Court of King’s Bench. (

c) the cause of action in the current claim and previous matter must not be separate and distinct from the matter raised in the subsequent proceeding : The cause of action in both proceedings is the same, being wrongful dismissal. (

d) the basis of the cause of action and the subsequent action was argued or could have been argued in the prior action had the parties exercised reasonable diligence : The basic factual underpinning in both cases is the same. However, in my view, there are aspects of the claim which are not barred by res judicata . In particular, Ms. Soldan, in her affidavit at paragraphs 15-21, states: 15. After delivering the Payment, Plus submitted a total of 8 inaccurate Records of Employment (the “ROEs”) to Service Canada. Attached hereto as Exhibit “ G ” are copies of all the ROEs filed by Plus. 16.

Service Canada has since rendered a decision, which is attached hereto as Exhibit “ H ”, finding that my loss of employment was not the result of misconduct. 17. The incorrect ROEs caused significant inconvenience and financial harm to me by impacting my eligibility for employment insurance benefits. Despite repeated requests by my counsel to correct the same, Plus has failed to file a corrected ROE with Service Canada. 18. Plus has furthermore filed a T4 on my behalf which falsely reports that Plus provided me with a retirement allowance.

Attached hereto as Exhibit “ I ” is a copy of the T4, which has the potential to create significant negative tax consequences for me. 19. I have also been informed, and verily believe the same to be true, that Plus intentionally communicated confidential and inaccurate information regarding the termination of my employment to unrelated third parties. 20. Schyann Fuiten, a former PLUS employee, raised the issue of me allegedly having abandoned my job. Mrs. Fuiten informed me that she was told by Sharon Chatwynd and Candy Tyacke that I had abandoned my job. 21.

On or about May 28, 2020, in response to Plus’s ongoing misconduct, I filed the Statement of Claim in this action, seeking damages

for wrongful dismissal in addition to general inconvenience damages, punitive damages and aggravated damages. [ 44 ] The statement of claim does not detail all of these allegations, but it does allege that “the Defendant filed numerous Records of Employments [ sic ] with Service Canada, all late and with improper or false information on them, which prevented the Plaintiff from receiving Employment Insurance after her wrongful termination” (statement of claim, paragraph 18(a)). One of the ROE claims is dealt with squarely in the decision of the Chief Commissioner.

The balance are not. [ 45 ] As a starting point, it is fair to say that the duty of good faith and fair dealing is not temporally limited to the moment of dismissal. Dismissal includes post-termination conduct that might constitute a component of the manner of dismissal. See, for example: Porcupine Opportunities Program Inc. v Cooper , 2020 SKCA 33 at para 24 . What this means is that to the extent that Ms.

Soldan takes issue with post-termination conduct of Plus Industries occurring subsequent to the submissions made before the Chief Commissioner, the issues raised by those facts, and those facts only, remain very much alive. For example, the allegations of Ms. Soldan that Plus Industries filed multiple inaccurate ROEs after the Chief Commissioner’s decision which caused issues for Ms. Soldan in relation to an Employment Insurance entitlement remains a live issue.

Similarly, the issue of the alleged inaccurate T4 for 2020 remains a live issue. [ 46 ] In argument, Plus Industries’ counsel conceded that such claims, to the extent they exist, would not be barred by virtue of principles of res judicata or abuse of process. Of course, the statement of claim raises some of these issues but not all of them. Ms. Soldan may need to apply to amend her claim to make sure all outstanding issues are squarely before the Court.

I make no decision in respect of any application to amend the statement of claim or whether amendments ought to be permitted as such application is not before the Court. Similarly, I make no determination on any objections that may be raised in the context of such an application. Again, those issues are not before me. [ 47 ] To the extent that the claim relates to conduct occurring after submissions were made to the Chief Commissioner, such conduct is not barred by cause of action estoppel.

However, to the extent that the claim raises the same cause of action arising from the same conduct or conduct that was either before the Chief Commissioner or could have been raised when the matter was before the Chief Commissioner, such claims are barred by cause of action estoppel. [ 48 ] The same conclusion is reached when looking at the test for issue estoppel: (

a) the same question has been decided in an earlier proceeding : In the matter before the Commission, Ms. Soldan argued that she had been wrongfully dismissed and that she suffered damages as a result. Those are the same questions that lie at the heart of her statement of claim. (

b) the decision made in the earlier proceeding is a final decision : The decision of the Chief Commissioner is now more than three years old, and there is no evidence before the Court to suggest that any effort to judicially review such decision was ever taken. (

c) the parties to that previous decision are the same or their privies in the subsequent proceeding: The parties before the Commission were Ms. Soldan and Plus Industries. Those are the same parties to the action. Discretion [ 49 ] It is clear that the basic elements of issue estoppel are met. The question is therefore whether discretion should be exercised to allow the claim or portions of it to proceed notwithstanding the fact that issue estoppel has been made out. [ 50 ] In this case, there are a number of allegations relating to conduct occurring after submissions were made to the Chief Commissioner.

Such allegations are not barred by either issue estoppel or cause of action estoppel. [ 51 ] In short, res judicata applies to those causes of action and issues that were put or could have been put before the Chief Commissioner. [ 52 ] It is a finding of the Court that the decision of the Chief Commissioner disposed of the following issues, claims and causes of action: (

a) discrimination under s. 16 of the Code and loss arising from such discrimination; (

b) wrongful termination which was caused or contributed to by the discrimination; (

c) initial submission of an ROE to Service Canada that Ms. Soldan had abandoned her position, for which damages were not proven; (

d) damages arising from discrimination and wrongful termination, including damages for lost wages/pay in lieu of notice of termination, lost benefits, pension contributions, life insurance, prescription medication, dental coverage and other benefits; (

e) damage to dignity, aggravated damages, damages for inconvenience, punitive damages and loss of reputation arising from a breach of the Code and the wrongful termination, but excluding conduct arising after the Chief Commissioner’s decision; and (

f) matters pertaining to the wrongful dismissal and conduct of Plus Industries up to and including the date of the last submissions made to the Chief Commissioner. [ 53 ] These are the issues that were litigated before the Saskatchewan Human Rights Commission and were disposed of in the Chief Commissioner’s ruling of January 10, 2020. They cannot be relitigated in the context of the current action.

Abuse of process [54] Striking a claim on the basis of abuse of process is based on a different test than is the case for res judicata.Specifically, the doctrine of abuse of process is broader and more flexible than is the case under the doctrine of res judicata as noted inBehn v Moulton Contracting Ltd., 2013 SCC 26 at paras 40-41, [2013] 2 SCR 227: [40] The doctrine of abuse of process is characterized by its flexibility.

Unlike the concepts of res judicata and issue estoppel, abuseof process is unencumbered by specific requirements. … [41] As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process. InCanam Enterprises [(2000), (ON CA), 51 OR (3d) 481 (Ont CA)] and in C.U.P.E. [2003 SCC 63, [2003] 3 SCR 77],the doctrine was used to preclude relitigation of an issue in circumstances in which the requirements for issue estoppel were not met. Butit is not limited to preventing relitigation. For example, in Blencoe v.

British Columbia (Human Rights Commission), 2000 SCC 44,[2000] 2 S.C.R. 307, the Court held that an unreasonable delay that causes serious prejudice could amount to an abuse of process:paras. 101-21. The doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought intodisrepute. [55] Abuse of process is about ensuring that the power of the court is not misused in a manner that would be unfair toa party or might bring the administration of justice into disrepute.

For example, abuse of process can be used to prevent relitigation evenwhere the strict test for issue estoppel and/or cause of action estoppel are not met. See also: Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA) at para 19, and Sullivan, at para 67. [56] Allowing the claim to proceed without limiting it to the factual circumstances occurring after submissions weremade to the Chief Commissioner would bring the administration of justice into disrepute. It would allow relitigation of the issuesdisposed of. It would allow Ms.

Soldan who, in the context of the complaint to the Commission, sought damages for wage loss, benefits,pension losses, bonuses, reasonable notice, punitive damage and aggravated damages to raise these same issues and claims again. This issimply not permitted. As noted in the very recent decision of our Court of Appeal in Livingston v Saskatchewan Human RightsCommission, 2022 SKCA 127 at paras 17-18, creating a multiplicity of proceedings is a basis for finding an abuse of process. That isexactly what Ms.

Soldan has done by commencing this action and not limiting it to events occurring after the date the parties madesubmissions to the Chief Commissioner. [57] To allow the claim in its current form to proceed would allow Ms. Soldan to relitigate the same issues in anotherforum after the first forum (being a forum of her own choosing) found she was entitled to damages, just not the amount she wanted. Toallow this to occur could lead to inconsistent results, discourage finality of proceedings and would bring the administration of justice intodisrepute. In short, it would amount to an abuse of process.

Collateral Attack [58] To the extent that the Chief Commissioner had jurisdiction, and I have found that he did, the position taken byMs. Soldan represents a collateral attack on the decision of the Chief Commissioner. The law as it relates to collateral attack is aptlysummarized in Mitchell v Candle Lake (Resort Village), 2021 SKCA 44 at paras 33-36: [33] Mr. Mitchell’s appeal raises the doctrine against collateral attack.

Collateral attack occurs when a party attempts to overturn anearlier decision within the context of subsequent proceedings, even though the prior order was either not appealed or unsuccessfullyappealed: “This Rule holds that ‘a court order, made by a court having jurisdiction to make it’, may not be attacked ‘in proceedings otherthan those whose specific object is the reversal, variation, or nullification of the order or judgment’” (R v Litchfield, (SCC), [1993] 4 SCR 333 at 349 [Litchfield], quoting R v Wilson, (SCC), [1983] 2 SCR 594 at 599). … [59] The current claim, brought without seeking judicial review of the decision of the Chief Commissioner, is acollateral attack on that decision, and this is not permitted.

Conclusion [60] In the end result, Ms. Soldan is barred on the basis of res judicata, abuse of process and collateral attack fromraising the following issues in the current claim: (

a) discrimination under s. 16 of the Code and loss arising from such discrimination; (

b) wrongful termination which was caused or contributed to by the discrimination; (

c) initial submission of an ROE to Service Canada that Ms. Soldan had abandoned her position, for which damages were notproven; (

d) damages arising from discrimination and wrongful termination, including damages for lost wages/pay in lieu of notice oftermination, lost benefits, pension contributions, life insurance, prescription medication, dental coverage and other benefits; (

e) damage to dignity, aggravated damages, damages for inconvenience, punitive damages and loss of reputation arising from abreach of the Code and wrongful termination; and (

f) matters pertaining to the wrongful dismissal and conduct of Plus Industries up to and including the date of the last submissionsmade to the Chief Commissioner. [61] Ms. Soldan is not barred on the basis of res judicata, abuse of process or collateral attack from raising claimsrelating to facts set out in paragraphs 15 to 21 of her affidavit to the extent that such claims are based on conduct occurring after

submissions were made to the Chief Commissioner. This finding is not intended to preclude any defences that may be raised by Plus Industries in respect of such issues or conduct except to the extent expressly limited by this decision. [ 62 ] Plus Industries sought to strike the claim in its entirety. They were largely, though not entirely, successful. Costs shall be in the cause. [ 63 ] I want to thank counsel for their submissions and briefs which were of great assistance to the Court. “N. Bardai” J. N. BARDAI