In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.
He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism. The arbitrator dismissed the grievance on August 24, 2004. The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.
Then, more recently, on November 4, 2010, he issued a statement of claim.
There are a lot of big problems here.
Firstly, there's the problem of delay. For claims discovered before January 1, 2004, there was a six year limitations period. For claims discovered since then, we have had a 2 year limitations period. Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways. Limitations periods are fairly difficult to get around, in most cases. The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it. So this wall is pretty tough to get over. If you can't do it, the action gets dismissed.
The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator. Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:
- Mr. Doobay's lawyer was arguing that the arbitration process was tainted by a lack of appreciation of the nature of the disability and the availability of accommodation programs in the Town. Now, I'm not sure that this argument rightly could have succeeded, because it doesn't really address the test for res judicata, and moreover it asks the Court to evaluate the results of the arbitration process...which might not be so bad, but for a couple of problems:This was an action, not a judicial review application; and Mr. Doobay probably wouldn't have had standing to seek judicial review. (The judge notes that Mr. Doobay did not seek judicial review, which is "the customary way in which such decisions are challenged". This may gloss over the fact that it is the union, not the grievor, with standing to seek judicial review, which fact the judge does not appear to bear in mind.) So the fact that this isn't a judicial review application isn't just a wrong choice of venue; Mr. Doobay probably could not have chosen a different venue, outside of asking CUPE to do so.
- All that being said, the finding that this is res judicata is, strictly speaking, wrong. One of the essential elements of the test of res judicata is that the parties involved must be the same. The reason Mr. Doobay would not have had standing to apply for judicial review is that he was not a party to the proceeding, in the strictest sense. Not being a party, the doctrine of res judicata could not block him from seeking remedies elsewhere. Of course, other doctrines would block just about every other type of remedy conceivable based on facts that had formed the subject matter of an unsuccessful grievance arbitration.
But what becomes more interesting is the costs analysis. You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000. There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.
So Rule 49 really wasn't the way to go on that. But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action. I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.
No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.
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