r v. Canadian Tire Corp. Ltd., 2013 ONSC 2735

CITATION : Limebeer v. Canadian Tire Corp. Ltd., 2013 ONSC 2735 COURT FILE NO.: 220/11 DATE: 20130509 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CAMERON LIMEBEER Plaintiff v. CANADIAN TIRE CORPORATION LIMITED Defendant BEFORE: CONLAN J. COUNSEL: Raj Napal, for the Plaintiff Robert B. Bayne, for the Defendant REASONS FOR DECISION ON MOTION Conlan J. The Issues [ 1 ] Should the Plaintiff’s action be dismissed as being barred by subsection 97(2) of the Employment Standards Act, 2000, S.O. 2000,

Chapter 41 (“ ESA ”)? That is the primary issue before the Court. [ 2 ] Alternatively, should the action be dismissed under the doctrine of issue estoppel? [ 3 ] This long motion was heard in Orangeville on May 6, 2013. I reserved my decision. [ 4 ] I am thankful to counsel for their helpful submissions and the thorough materials filed. The Basic Facts [ 5 ] The Plaintiff, Cameron Limebeer (“Mr. Limebeer”), was an employee of the Defendant, Canadian Tire Corporation Limited (“CTC”), for about eleven years. [ 6 ] In January 2011, during the course of an investigation by CTC into the conduct of Mr.

Limebeer, the Plaintiff admitted to taking property out of CTC’s workplace without authorization. On the 12th of January 2011, Mr. Limebeer was fired. [ 7 ] Mr. Limebeer had a claim filed under the ESA , seeking termination and severance pay. Whether it was Mr. Limebeer himself or his wife who actually filed the matter is not that important. I find as a fact that Mr. Limebeer was at all material times aware of the

claim. If it was his wife that did it online, then she did so as his agent. [8] The claim was apparently “investigated”, although really what happened was that the Employment Standards Officer receivedsome information from CTC and then, about one week later and without speaking with Mr. Limebeer or his wife, decided that Mr.Limebeer committed theft. The Officer concluded that “the claim of the claimant is denied based on the evidence provided by theemployer”. That decision was made on February 15, 2011. [9] On August 3, 2011, CTC was served with Mr.

Limebeer’s Statement of Claim alleging his wrongful dismissal. [10] It is common ground that the subject matters of the ESA claim and the Court action are the same. [11] Although CTC has already delivered its Statement of Defence, on consent, this Court granted to CTC leave to bring this Motion,as required by Rule 2.02 of the Rules of Civil Procedure. The Motion is brought under Rule 21.

The Positions of the Parties [12] CTC argues that subsection 97(2) of the ESA clearly bars the Plaintiff’s action: “An employee who files a complaint under thisAct alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal if thecomplaint and the proceeding would relate to the same termination or severance of employment”. [13] Alternatively, CTC argues that the claim ought to be dismissed under the doctrine of issue estoppel. [14] Mr.

Limebeer submits that subsection 97(2) of the ESA grants some discretion to this Court to allow the action to survive. [15] Alternatively, Mr.

Limebeer argues that the Court can find comfort in the jurisprudence which has held that the two-week periodreferred to in subsection 97(4) of the ESA can be extended, which extension could be until a date even after the decision has been madeat first instance on the merits of the ESA claim. [16] Subsection 97(4) provides that “an employee who has filed a complaint may commence a civil proceeding…if he or shewithdraws the complaint within two weeks after it is filed”. [17] The gist of Mr.

Limebeer’s plea to this Court is that, if I dismiss his action, he may be left with nothing because he was deniednatural justice and basic fairness in the course of the “investigation” which led to the February 15, 2011 decision, and he may not be ableto have any appeal from that decision heard by the Ontario Labour Relations Board (“OLRB”) because of the ensuing delay. [18] I hear that plea. I am sympathetic to it. Unfortunately for Mr. Limebeer, I cannot find a way to go where he wants me to go. Icannot ignore the clear wording of the Act.

Analysis [19] I conclude that subsection 97(2) of the ESA provides me no discretion in these circumstances. The use of the words “may notcommence a civil proceeding” as opposed to “shall not commence a civil proceeding” is explained by the exception in subsection 97(4). That expression does not suggest, as submitted by counsel for Mr. Limebeer, that a claimant could proceed in both venues in somecircumstances. [20] Mr. Limebeer is absolutely correct that the two-week period in subsection 97(4) is unreasonably short. It should be lengthened. But that is the purview of the legislators. [21] Mr.

Limebeer is also correct that I have the authority to extend the two-week period in subsection 97(4): Scarlett v. WolfeTransmission Ltd., (ON SC – Pepall J.) and Demelo v. Babcock & Wilcox Canada Ltd., (ON SC– Flynn J.). I agree with those decisions. [22] But I disagree that I can extend the two-week period to a date after February 15, 2011.

If that was the case, then everydisgruntled worker would simply make a claim under the ESA and, if unsuccessful, then ask the Court to extend the two-week period insubsection 97(4), ostensibly withdraw the claim (even though a decision has already been rendered) and take a second kick at the can atcourt. That cannot be sound policy. [23] The appropriate course for Mr. Limebeer to chart now is the following. He ought to take immediate steps to revive his appeal tothe OLRB. He ought to provide these Reasons for Decision to the OLRB.

He ought to exhaust all of his remedies under the ESA and, ifstill unsatisfied, he may then consider an Application for judicial review. [24] For what it is worth, I encourage the OLRB to adjudicate Mr. Limebeer’s appeal on its merits and grant to him a full hearing. Iam concerned that this man never had a chance to challenge the employer’s information before the decision maker at first instance. I amconcerned that Mr. Limebeer’s complaint appears to have been dismissed solely on the basis of the employer’s submissions. I amconcerned that Mr.

Limebeer’s alleged confession to CTC has been swallowed whole by the tribunal without any consideration for Mr.Limebeer’s position that it was, in essence, a false admission. [25] In the event that, notwithstanding my concerns about the interests of justice, the OLRB refuses to hear the appeal, then Mr.Limebeer has a potential remedy in terms of judicial review. [26] In the circumstances, it is unnecessary for me to address the CTC’s alternative argument regarding issue estoppel. Suffice it to

say that I would have dismissed that argument. I would not have applied the doctrine. I would have allowed the court action to proceed. I would have found that the three preconditions have been met (the same question in both proceedings; the earlier decision was final; and the same parties in both proceedings), however, I would have exercised my residual discretion to not apply the doctrine because its application here would cause a real injustice: Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 . [ 27 ] Unfortunately for Mr.

Limebeer, that same discretion does not assist him with regard to subsection 97(2) of the ESA . He filed a claim under that legislation. And although the “investigation” was rather perfunctory, Mr. Limebeer did not withdraw the claim before the decision was made to dismiss his complaint. He had an opportunity to do so. Conclusion [ 28 ] The Plaintiff’s action is barred by subsection 97(2) of the ESA . Thus, the Defendant’s Motion is granted.

The action is dismissed. [ 29 ] If counsel wish to address the issue of costs, they may contact the Trial Coordinator in Owen Sound within two weeks of the release of these Reasons for Decision to

schedule a brief teleconference with me. ___________________________ Conlan J. DATE: May 9, 2013 CITATION : Limebeer v. Canadian Tire Corp. Ltd., 2013 ONSC 2735 COURT FILE NO.: 220/11 DATE: 20130509

SUPERIOR COURT OF JUSTICE - ONTARIO RE: CAMERON LIMEBEER v. CANADIAN TIRE CORPORATION LIMITED BEFORE: CONLAN J. COUNSEL: Raj Napal, for the Plaintiff Robert B. Bayne, for the Defendant REASONS FOR DECISION ON MOTION Conlan J. DATE: May 9, 2013