Aug 16, 2018


The applicant Simone Sherman worked as a Chartered Accountant at Revenue Canada (“CRA”), and in 1994 Sherman left work for a work related injury and claimed Workers benefits. On 1996 Sherman returned to work on a part time basis. In August 28, 2000, Sherman was terminated from her position at the CRA due to an inability to perform essential tasks of her position.


“Sherman challenged her dismissal through the vehicle of an Independent Third Party Review (“ITPR”). This process established by the Agency under the authority of the Canada Customs and Revenue Agency Act 1999, c.17 allowing for independent review of terminations.”[1] The decision rendered in Sherman’s favour, in its findings stated that the CRA failed to properly accommodate her disability, and the CRA acted in bad faith. The ITPR ordered the CRA to reinstate her with back pay.


Public Service Staff Relations Board (the “PSSRB”) had permitted issue estoppel towards the ITPR findings of Ms. Sherman’s physical limitations, and appropriate expectations of accommodations on behalf of the CRA. However, PSSRB refused to allow issue estoppel for the WSIB decisions which counteracts their first issue estoppel of the level of accommodations CRA will provide Sherman.


Ironically, both the CRA and Sherman wanted the scope of their proceedings under judicial review before both the PSSRB and the Canadian Human Rights Tribunal had made a decision. Both parties came to an arrangement that neither would argue that either of their judicial review applications were premature.


The Tribunal refused to apply issue estoppel regarding the Reviewer’s findings, Sherman later applied for Judicial Review for an Interlocutory evidentiary ruling. Issue estoppel is to prevent re-litigation of issues that have been already been decided in previous proceedings, and ultimately creates procedural fairness by preventing undue delay. The interlocutory evidentiary ruling application that Sherman was requesting from the Courts was to compel the Tribunal to accept the decisions of the Reviewer. However, the Tribunal has a discretion not to apply issue estoppel even though all the elements of issue estoppel are readily apparent.


Justice Barnes who dismissed the application on prematurity, and believed the reasoning was not good enough to depart from a well established principle that Courts will not ordinarily intervene in relation to evidentiary or procedural rulings of an administrative tribunal, before the final decision is rendered.[2]


Sherman believed she had a special circumstance existing to warrant court’s immediate intervention. She argued that the Tribunal hearing process was too lengthy, and that the Courts had ordered a stay of proceedings on the Tribunal hearing while there was an application for judicial review. This extended the procedure even further, contradicting the purpose that the judicial review application was sought to prevent, which was undue delay.


Settlement Agreement (“Agreement”) in November 2006: Both the CRA and Sherman entered into an Agreement where Sherman agreed to withdraw her Human Rights complaint, the terms of the agreement were elaborate employment agreement where Sherman would get full time pay up till June 2010, then get paid for sick and vacation days up till June 2015 where she will retire, and the notice already provided for in the Settlement Agreement. The Agreement also mentions that Sherman is expected not to Enter any CRA premises , “for purposes related to her employment relationship”, will “not perform any duties or work activities”, and will “not represent herself or hold herself out to be an active employee of CRA”.[3]



Issues


1. Issue Estoppel: Sherman wanted the Canadian Human Rights Tribunal (the “Tribunal”) to apply issue estoppel regarding the Reviewers Findings.


2. Judicial Review on Interlocutory Evidentiary ruling of the Tribunal’s decision not to apply Issue Estoppel due to Special Circumstances. Special Circumstances that warranted Court intervention was the lengthy hearing in order for the Tribunal to resolve issues decided by the Reviewer. Tribunal lacks Procedural Fairness by delay in administrative process.


Outcome


Ontario Federal Court of Justice, Justice Barnes: had dismissed the Agency’s application for Judicial Review of the PSSRB’s decision because it was premature.


Ontario Federal Court of Justice, Finckenstein J: granted application for mandamus to compel the Agency to implement the ITPR’s decision as it related to compensation for lost wages, with retroactive pay with interest. Hansen J: Dismissed Sherman’s motion to find the CRA in contempt of court in regards to the Mandamus order by not paying the interest on the retroactive pay.


An Agreement between both CRA and Sherman arises where Sherman would be reinstated under a Settlement scheme, as the course of her employment she will be “on leave”, and Sherman agrees to give notice in the agreement of her retirement in 2015. The Agreement was a façade, creating a mutually beneficial outcome for both parties encompassing all issues: the CRA will not be compelled to actually reinstate Sherman, whereas Sherman gets paid a generous amount to retire from the CRA.


The significance of the case in admin law


The significance of this case is that Judicial review for an interlocutory order was not granted because courts rather see administrative tribunals decision taken to its logical conclusion. Courts do not want to create a loophole for Sherman as Justice Mactavish states that the “Hardship that Sherman faced was no different from the hardship normally faced by a litigant.”[4] Mactavish J went on to say that Interlocutory evidential rulings would only be made in special circumstances, otherwise courts would defer on administration with certain expertise.


Former Justice Dolores Hansen dismissed Sherman’s motion to prove beyond a reasonable doubt that the CRA is guilty of contempt of court order, but she also states “it is not necessary to consider the issue as to whether a Crown agency may be found in contempt”[5] showing a reluctance to entertain an important hypothetical unless it is essential.


Opinion


The courts are right to see rulings actually play themselves out. Both parties wanted the courts intervention on a matter that was in their favour, before the Tribunal made its decision. However, exceptions should be made to issues that are accepted by both parties as truths, such as the wrongful termination of Sherman or failure to accommodate her disability. It seems counterintuitive for the courts not to expedite the administrative tribunal process, especially considering that they are not subjected to the same Charter rights limitations of a decision being made timely as the courts.


It appears that the Tribunals reluctance to apple the doctrine of issue estoppel of decisions made by special tribunals or independent reviewers are a redundant step. Both parties appeared to be more open to mediation after recognizing how unreasonable the procedure of this Tribunal had been. Evidence of this was seen in the Settlement agreement where it outlined many issues that both parties accepted as uncontended.




[1] Sherman v Canada (Customs and Revenue Agency), [2006] F.C.J. No 912, para 8

[2] Ibid, para 37

[3] Sherman v Canada (Minister of National Revenue), [2014] T.C.J. Tax Court, No 228, para 8

[4] Sherman v Canada (Customs and Revenue Agency), [2006] F.C.J. No. 912, Summary

[5] Sherman v. Canada (Customs and Revenue Agency), [2006] F.C.J. No. 1413, para 31