CASE COMMENT

THE DISCRETIONARY ASPECT OF ISSUE ESTOPPEL:
WHAT DOES DANYLUK ADD?

Sean C. Doyle

1. INTRODUCTION

The application of the doctrine of issue estoppel to a decision of an administrative tribunal can have a significant impact on the outcome of litigation. This is especially true in the employee law context,1 where issues of law and fact may be common to both a wrongful dismissal action and a prior human rights, employment standards or employment insurance adjudication.2 Where issue estoppel is applied, a party to a wrongful dismissal action may be bound by an adverse ruling in a previous administrative proceeding and be precluded from re-litigating that issue before the court.

The constituent elements of issue estoppel are well established: (1) the same parties or their privies were involved in the prior decision; (2) the decision in the prior proceeding was both judicial and final; and (3) the same issue or question was decided in the prior proceeding.3 As an equitable doctrine, issue estoppel remains a discretionary remedy, and a court may decline to apply it even where each element is present. Danyluk v Ainsworth Technologies Inc.4 is the first decision in which the Supreme Court of Canada has given extensive consideration to the principles governing the exercise of discretion.

2. PREVIOUS CASES ON DISCRETION

In early jurisprudence, courts tacitly espoused a restrictive approach to the discretionary aspect of issue estoppel. In Winter v. J.A. Dewar Co. Ltd.,5 for instance, the British Columbia Court of Appeal stated that the doctrine must be given effect in all proper cases, even where it would work an injustice. Similarly, in his dissenting judgment in Angle v. Minister of National Revenue,6 Laskin J. concluded that there was "no reason to introduce any anomalies or exceptions" to the application of the doctrine if "the facts call for it". Perhaps most explicitly in Naken v. General Motors Ltd.,7 the Supreme Court of Canada ruled that the scope of the discretion was very limited, and noted that the harsh results in which may flow from an assertion of res judicata had not been viewed as a pertinent consideration.

In the 1990s, however, the discretionary aspect of issue estoppel was the subject of much more extensive judicial commentary, particularly in the context of wrongful dismissal litigation.8 In a trilogy of cases,9 the Ontario Court of Appeal considered the circumstances which may justify a decision not to apply issue estoppel.10

In Rasanen, the Court of Appeal held that the trial judge had properly dismissed an action for constructive dismissal on the basis of issue estoppel because the central issue of whether the plaintiff had been offered reasonable alternative employment had already been conclusively determined by an employment standards referee. Although the focus on discretion was cursory, each of the three separate judgments shed some light on the question. According to Abella J.A., there was "no principled basis for exempting issues adjudicated by tribunals from the operation of issue estoppel in a subsequent action" where the party against whom the doctrine is invoked has an opportunity to know and meet the case against it, and the decision was within the jurisdiction of the tribunal.11 In a concurring judgment, Morden A.C.J.O. stated in obiter that the procedural deficiencies in the first decision could not properly be taken into account in deciding whether or not to apply issue estoppel in a subsequent proceeding.12 Carthy J.A. suggested, also in orbiter, that the absence of discovery and representation by counsel in an employment standards proceeding, as well as the more modest financial stakes, could make it unfair to bind a plaintiff in a subsequent wrongful dismissal action.¹³

In Minott, the Court of Appeal held that a trial judge had properly refused to strike out a wrongful dismissal claim on the basis of an issue estoppel alleged to have been created by the prior decision of an employment insurance board of referees. Discussing the principles governing issue estoppel, Laskin J.A. identified discretion as the primary vehicle for ensuring that justice is served:

Although he concluded that the defendant had failed to establish two of the requisite elements of issue estoppel,15 Laskin J.A. listed five grounds on which he would, in any event, have declined to apply the doctrine.16 First, the statutory scheme governing employment insurance contemplated the claims will be "adjudicated quickly, inexpensively and summarily." The application of issue estoppel would undermine this legislative aim, since employers and employees would be tempted to over-litigate such proceedings in an effort to avoid an adverse ruling that could influence a subsequent civil action.

Second, an individual normally applies for employment insurance benefits immediately after losing his or her job. The claimant’s vulnerability, combined with the urgency of the situation, compromises his or her ability to defend allegations of disentitling behaviour. The application of issue estoppel in these circumstances could therefore lead to injustice. Moreover, an individual may be reluctant to file for benefits if an unfavourable ruling could foreclose other legal remedies.

Third, the financial stakes of an employment insurance claim are typically insignificant compared to those of an action for wrongful dismissal. Echoing Sharpe J.’s observation in Randhawa v. Everest & Jennings Canadian Ltd.,17 Laskin J.A. stated that it may be unfair to employers and employees alike to impose issue estoppel in an action having much more significant consequences than the earlier administrative proceeding.

Fourth, like Morden A.C.J.O. in Rasanen, Laskin J.A. concluded that the procedural differences between a hearing under what is now the Employment Insurance Act and a civil action for wrongful dismissal may justify a decision not to apply issue estoppel. Here, Laskin J.A. noted that the employee did not have access to prehearing discovery, was unrepresented by legal counsel, led no evidence, called no witnesses, and had no opportunity to build his case through cross-examination. In addition, the tribunal was in possession of, and likely acted upon, inaccurate information provided by the claimant’s former employer. However suitable for the purposes of the Employment Insurance Act, the procedures adopted by a board of referees may be entirely inappropriate to a common law wrongful dismissal suit.

Finally, Laskin J.A. held that a board of referees under the Act lacks the expertise to decide a wrongful dismissal action. The context in which the board adjudicates allegations of misconduct is a claim for benefits rather than a bipartite dispute relating to an employee’s summary dismissal. The test for misconduct under the Act is not the same as the requirement for just cause at common law.

In Schweneke, the third case in the trilogy, the Ontario Court of Appeal upheld a judge’s decision to strike out a wrongful dismissal action on the basis that findings of fact on the central issue had already been made by an employment insurance adjudicator.18 Recognizing the procedural limitations inherent in some administrative proceedings, the court cautioned against the mechanical application of issue estoppel. According to the Court, however, a party resisting the application of issue estoppel must demonstrate that the operation of the doctrine would work an injustice.19 Furthermore, the fact that the prior decision was made by an administrative tribunal which afforded no right of cross-examination was not, on its face, adequate evidence of injustice:

In the Court’s view, it was not sufficient merely to demonstrate that the process leading to the finding "did not provide the full panoply of procedural protections available in civil litigation." Rather, the party resisting the application of issue estoppel must establish that the shortcomings in procedure "were such that it would be unjust to give effect to that finding in subsequent civil litigation."21

Lastly, while the Court adopted the five indicia of possible injustice set out in Minott, it emphasized that a party seeking relief against the application of issue estoppel cannot simply rely on the potential for injustice as described by Laskin J.A., but must demonstrate actual injustice in the particular case. In deciding whether to exercise its discretion, a court "must respond to the realities of each case and not to abstract concerns that arise in virtually every case" where the prior decision was made by an administrative tribunal.22 Thus, the Court in Schweneke narrowed the broader approach to unfairness formulated in Minott.

3. THE DANYLUK DECISION

1. Facts and Judicial History

Following an unsuccessful attempt to resolve a dispute over unpaid wages and commissions with her employer, Ainsworth Technologies, Danyluk filed a claim under the Ontario Employment Standards Act.23 During the ensuing investigation, the employment standards officer met with Danyluk, but did not provide her with any of the documents or submissions provided by the employer; nor did the officer advise her of the employer’s position. Prior to the issuance of the officer’s decision, Danyluk filed an action for wrongful dismissal, seeking the wages and commissions which were already the subject matter of her statutory claim.24 The officer ultimately ordered the employer to pay Danyluk two weeks’ pay in lieu of notice, but dismissed her $300,000 claim in respect of unpaid commissions. Despite being advised both orally and in writing by the officer that she was entitled to seek a review of the decision, Danyluk opted instead to pursue her civil action.

The employer brought a motion to strike out portions of the statement of claim relating to unpaid wages and commissions on the basis that Danyluk was estopped. According to McCombs J. of the Ontario Court (General Division),25 the only issue was whether the decision of the employment standards officer could be considered final. In his view, the failure of Danyluk to appeal or seek a review invested the decision with sufficient finality. The Court concluded, therefore, that each of the requisite elements of issue estoppel was present, and allowed the employer’s motion.

2. Ontario Court of Appeal

Appealing to the Ontario Court of Appeal,26 Danyluk contended that the employment standards officer’s decision was neither final nor judicial, and that the procedural unfairness of the proceedings vitiated any estoppel. The Court dismissed these submissions, ruling that the officer’s decision, not having been challenged by either party pursuant to their right of internal review, was final. Furthermore, although the characterization of an administrative decision as judicial, quasi-judicial or ministerial is largely dependent upon legislative intention, the judicial nature of decisions of employment standards officers had been confirmed in Downing v. Graydon.27

With respect to the procedural deficiencies, the Court acknowledged that the employment standards officer had violated the rules of natural justice by denying the appellant an opportunity to know or meet the case against her. However, the Court concluded that a failure to act judicially does not preclude the operation of issue estoppel, at least where there exists an avenue of appeal. According to Rosenberg J.A., this conclusion was based upon two principles of administrative law: (1) the discretionary remedy of judicial review will be refused where there exists an adequate alternative remedy; and (2) the rule against collateral attack. In his view, "[w]here an appeal route is available the parties will not be permitted to ignore it in favour of the court process."28 In Susan Shoe Industries Ltd. v. Ricciardi,29 for example, the Court barred an employer from seeking judicial review of an employment standards officer’s decision on the ground that the employer had failed to apply for review by a referee. In this case, had Danyluk applied under the Employment Standards Act for a review of the officer’s decision, the adjudicator would have been required to hold a hearing. As the statutory review process offered an adequate alternative remedy, the Court held that the appellant was estopped and dismissed the appeal.

(c) Supreme Court of Canada

On further appeal by Danyluk, the Supreme Court of Canada ruled that the underlying purpose of issue estoppel is to balance the public interest in the finality of litigation against the corresponding public interest in ensuring that justice is done. The Court set out a two-step approach for determining whether issue estoppel should be applied in a given case. First, the party invoking estoppel must establish the constituent elements of the doctrine. Second, the court must determine whether, as a matter of discretion, issue estoppel ought to be applied. The primary issues here were whether the officer’s decision was sufficiently judicial, and whether the circumstances justified the Court in exercising its discretion not to apply issue estoppel.30

1. Failure to Act Judicially

The Ontario Court of Appeal had concluded that the failure of the employment standards officer to provide Danyluk with notice of the employer’s case or an opportunity to respond violated the rules of natural justice. In Rasanen, similarly, Abella J.A. had indicated that, in order for issue estoppel to apply, the parties in the previous proceeding must have been afforded an opportunity to know and meet the case against them.31 Nevertheless, the Supreme Court rejected Danyluk’s argument that the decision was not sufficiently judicial. In the Court’s opinion, the failure to act judicially does not necessarily deprive a decision of its judicial character. Binnie J. stated:

In my view, with respect, the theory that a denial of natural justice deprives the E.S.A. decision of its character as a "judicial" decision rests on a misconception. Flwed the decision may be, but "judicial" (as distinguished from administrative or legislative) it remains. Once it is determined that the decision-maker was capable of receiving and exercising adjudicative authority and that the particular decision was one that was required to be made in a judicial manner, the decision does not cease to have that character ("judicial") because the decision-maker erred in carrying out his or her functions … The decision remains a "judicial decision," although seriously flawed by the want of proper notice and the denial of the opportunity to be heard.32

According to Binnie J., while a decision made without jurisdiction from the outset cannot form the basis of an estoppel, once the conditions-precedent to the exercise of jurisdiction are satisfied, any subsequent errors in its exercise (including violations of natural justice) render the decision voidable rather than void. Consequently, although procedural deficiencies do not undermine the judicial nature of the decision, they are properly considered in the exercise of the discretion whether to apply issue estoppel.

Binnie J. further pointed out that the doctrine of issue estoppel is closely linked to the rule against collateral attack and the principles governing judicial review. The adoption of Danyluk’s theory would create an anomalous result on two grounds. First, if she was correct in asserting that the employment standards officer had lost jurisdiction as a result of the flawed decision-making process, the Harelkin33 barrier to judicial review "would be neatly sidestepped." Rather than seeking a review as stipulated by the legislation, she would be entitled to ignore the decision altogether.

Second, Danyluk’s wrongful dismissal action may amount to an improper collateral attack upon the decision of the employment standards officer, which had been impeached neither by administrative nor judicial review. In R. v. Consolidated Maybrun Mines Ltd.,34 the Supreme Court held that an act in excess of jurisdiction does not necessarily subject an administrative decision to collateral attack. Whether such a decision is open to collateral attack depends upon the forum in which the legislature intended the attack to be made – the administrative arena or the courts. Implicit in the reasoning of Binnie J. is the proposition that, having elected to pursue her claim in the administrative arena, Danyluk should have attacked the officer’s decision through the statutory review process.

2. Discretionary Factors

According to the Supreme Court, the appellant was entitled at some stage to an appropriate consideration of the discretionary factors attending the doctrine of issue estoppel, and the failure of the courts below to consider the relevant considerations constituted an error in principle. Binnie J. noted that the list of factors is open-ended, and may include both those identified in Maybrun in connection with the rule against collateral attack,35 as well as those outlined by Laskin J.A. in Minott. The Court then identified seven factors which were relevant to the exercise of discretion in the instant case. In the result, the Court exercised its discretion in favour of Danyluk, and allowed the appeal.

1. Wording of the Statute

A court must first consider the wording of the statute from which the power to issue the administrative order derives. As the Ontario Employment Standards Act explicitly provides that it does not suspend or affect any civil remedy of an employee against his or her employer, it can be presumed that the legislature did not intend employment standards proceedings to be the exclusive forum for the resolution of workplace disputes. Furthermore, because the appellant commenced her civil action before the employment standards officer had rendered a decision, the employer was well aware of the necessity to respond in parallel and potentially overlapping proceedings.

(B) Purpose of the Legislation

The focus of the prior administrative proceeding, Binnie J. noted, may be entirely different from that of the subsequent litigation, notwithstanding the similarity of one or more of issues. In British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc., for example, the Court declined to apply issue estoppel on the basis that, inter alia, a final decision on the right to recover losses arising from a forest fire was not within the reasonable expectation of either party at the time of the prior reimbursement proceedings.36 In this regard, Binnie J. adopted the reasons of Carthy J.A. in Rasanen, who had drawn attention to the potentially disproportionate stakes in the two proceedings. Where an employee has forsaken the right to discovery and representation by counsel in pursuit of limited relief by way of employment standards proceedings, it would be unfair to bind him or her to a decision made in the course of those proceedings in a subsequent civil action involving, perhaps, ten times the amount of money. Finally, Binnie J. endorsed the following passage from the American Restatement of the Law, where reference is made to:

Putting excessive weight on decisions arising from employment standards proceedings, the Court concluded, "would likely compel the parties … to mount a full-scale trial-type offence and defence," thereby defeating the statutory objective of providing a quick and inexpensive forum for resolving disputes.38

(C) Availability of an Appeal

The Supreme Court discussed the availability of an appeal in the context of the Harelkin principle, which prevents a party from seeking judicial review where there exists a satisfactory alternative remedy. Although in this case the appellant, strictly speaking, had no right of review, her failure to take advantage of the right to apply for review counted against her.

(D) Procedural Safeguards

A court must also consider the procedural safeguards available to the parties in the prior administrative proceeding. Streamlined, expeditious procedures, though suitable in the employment standards forum, may be inadequate to deal with complex issues of fact or law. For instance, a tribunal may exclude evidence that a court may consider probative, or admit evidence that a court may deem unreliable. Here, the breach of natural justice committed by the employment standards officer was a key factor operating in Danyluk’s favour. Furthermore, Binnie J. noted, both Morden A.C.J.O. in Rasanen and Laskin J.A. in Minott had recognized that deficiencies in the prior administrative proceeding could properly be considered by the court in exercising its discretion.

(E) Expertise of the Decision-Maker

The Supreme Court pointed out that, in this case, a non-legally trained employment standards officer had been required to adjudicate a potentially complex issue of contract law. But the "rough-and-ready approach suitable to getting things done in the vast majority of E.S.A. claims," the Court added, "is not the expertise required here."39 Similar considerations may justify suspending the operation of the rule against collateral attack. In Maybrun, for example, it was held that a party may be permitted to attack the decision of an administrative tribunal in a different forum if the decision was based on considerations foreign to the tribunal’s expertise or raison d’ être.

(F) Circumstances Giving Rise to the Prior Proceeding

The appellant had pursued her employment standards claim at a time of personal vulnerability, with her dismissal looming. In Binnie J.’s view, it was unlikely that the legislature intended "a summary procedure for smallish claims to become a barrier to closer consideration of more substantial claims."40 Furthermore, endorsing the reasoning of Laskin J.A. in Minott, he stated that employees apply for statutory benefits when they are most vulnerable, which in turn compromises their ability to advance the claim or respond to allegations against them. On the other hand, as Danyluk had included in her employment standards complaint the claim for $300,000 in unpaid commissions, she was at least partly responsible for her ensuing difficulties.

(G) Potential for Injustice

Finally, and most importantly, a court must assess whether, in all the circumstances, the application of issue estoppel would cause an injustice, particularly with respect to the denial of a party’s right to be heard. In the present case, Binnie J. held that, regardless of the appellant’s procedural mistakes, "the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated."41

4. CONCLUSION

The Supreme Court of Canada’s judgment in Danyluk has significantly clarified the principles governing issue estoppel. Perhaps most importantly, the Court held that the failure of an administrative decision-maker to act judicially does not necessarily deprive the decision of its judicial character for the purpose of issue estoppel. Provided the decision-maker was vested with adjudicative authority and the decision was required to be reached in a judicial manner, any procedural deficiencies, including violations of natural justice, are properly remedied through the exercise of discretion. In this regard, the principles governing issue estoppel are now more consistent with both the rule against collateral attack and the Harelkin barrier to judicial review in the face of an adequate alternative remedy. Consequently, a plaintiff may not simply ignore an unfavourable result in an administrative proceeding but must demonstrate why, as a matter of discretion, the decision should not be given effect in a subsequent civil action.

Furthermore, in recognizing the relevance of discretionary factors such as the summary nature of employment standards proceedings, as well as the financial and emotional vulnerability of those seeking statutory benefits, the Court significantly lessened the risk to employees of filing employment standards or employment insurance claims. However, Danyluk was decided in the context of an initial rejection of a claim by an employment standards officer. The result may be different where an employee appeals a denial of benefits and receives a full hearing, including the right to present evidence, obtain disclosure, and cross-examine witnesses.

Finally, unlike the Ontario Court of Appeal in Schweneke, Binnie J. did not require a party resisting the application of issue estoppel to demonstrate any actual injustice or unfairness as a pre-condition to relief. Combined with the broad compass of the relevant discretionary factors, this has likely increased the persuasive burden on a party seeking to raise an estoppel. It remains to be seen whether the practical effect of Danyluk is to swallow whole the rule that issue estoppel may apply to decisions in employment standards and employment insurance proceedings.

1. For a review of the impact of issue estoppel in the employment law context, see J.E. Goodman & J. Murray, "Ties that Bind at Common Law: Estoppel, Employment Standards and Unemployment Insurance Adjudication" (1997), 24 C.C.E.L. (2d) 291; J.E. Goodman, "Approach with Caution: Issue Estoppel and Employment Insurance Adjudications" (2001), 8 C.L.E.L.J. 462; and G. Demeyere, "Issue Estoppel in Employment Law Disputes: Rasanen v. Rosemount Instruments and its Aftermath" (1998), 6 C.L.E.L.J. 299.
   
2. In Ontario, pursuant to recent amendments, an employee may not commence an action for wrongful dismissal if he or she has previously filed a claim alleging entitlement to termination or severance pay: Employment Standards Act, 2000, S.O. 2000, c. 41, s. 97.
   
3. Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544; see also Grdic v. R., [1985] 1 S.C.R. 810, 19 D.L.R. (4th) 385. The test articulated in Angle has been applied in subsequent cases.
   
4. (2001), 201 D.L.R. (4th) 193 (S.C.C.) [hereinafter Danyluk].
   
5. (1929), 41 B.C.R. 336 (C.A.), at p. 340.
   
6. Supra, note 3, at p. 268.
   
7. [1983] 1 S.C.R. 72, 144 D.L.R. (2d) 385, per Estey J.
   
8. For a recent pronouncement upon the discretionary aspect of issue estoppel outside the employment law context, see British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R., (3d) 1 (C.A.), at p. 11, Finch J.A. (now C.J.B.C.) stated:
   
   It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application… The doctrine if issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.
9. Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267, 112 D.L.R. (4th) 683 (C.A.) [hereinafter Rasanen]; Minott v. O'Shanter Development Co.Ltd. (1999), 42 O.R. (3d) 321, 168 D.L.R. (4th) 270 (C.A.) [hereinafter Minott]; and Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.) [hereinafter Schweneke].
   
10. But see Hough v. Brunswick Centres Inc. (1997), 9 C.P.C. (4th) 111 (Ont. Gen. Div.), where Langon J. stated at p. 133 that Knight v. Indian Head School District No. 19, [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, and Wong v. Shell, infra, note 31, "both tell compellingly against any discretionary application of the principle of issue estoppel."
    
11. Rasanen, supra, note 9, at p. 280. For a critique of the reasoning of Abelle J.A. in respect of the "same issue" requirement, see Demeyere, supra, note 1.
    
12. Rasanen, supra, note 9, at p. 294
    
13. Ibid., at p. 290. Carthy J.A. ultimately determined that the "same parties" requirement had not been satisfied, a conclusion which was premised upon the unfairness of applying issue estoppel in the circumstances: "[I]n this case, it would be unfair to the appellant to consider him as closely associated with the proceedings under the E.S.A. as to invoke issue estoppel against his common law claim for wrongful dismissal damages."
    
14. Minott, supra, note 9, at p. 340.
    
15. Laskin J.A. concluded that neither the "same issue" test nor the "same parties" requirement had been satisfied, since the standard for misconduct under the former Unemployment Insurance Act, R.S.C. 1985, c. U-I, s. 28(1) (now the Employment Insurance Act, S.C. 1996, c. 23) was not the same as that for just cause at common law. Furthermore, the employer had merely provided information to the Unemployment Insurance Commission without actively participating in the proceedings.
    
16. Minott, supra, note 9, at pp. 341-343.
    
17. (1996), 22 C.C.E.L. (2d) 19 (Ont. Gen. Div.).
    
18. It was determined in the employment insurance adjudication that the claimant had been dismissed for misconduct pursuant to s. 20(1)(c) of O. Reg. 881, R.R.O. 1990, under the Public Service Act, R.S.O. 1990, c. P.47, for having worked for another employer while employed by the Ontario government. The same statutory ground of defence was pleaded in the wrongful dismissal action.
    
19. Schweneke, supra, note 9, at p. 108.
    
20. Ibid.
    
21. Ibid.
    
22. Ibid., at p. 109.
    
23. Her employer ultimately took the position that she had been escorted from the premises after resigning.
    
24. At that time, an employee was entitled to pursue an employment standards complaint concurrently with a civil claim for wrongful dismissal. The Act was subsequently amended to require an employee to make an election as between the two forums: supra, note 2.
    
25. Unreported, June 10, 1996 (Ont. Gen. Div.).
    
26. (1998), 42 O.R. (3d) 235, 167 D.L.R. (4th) 385 (C.A.).
    
27. (1978), 21 O.R. (2d) 292, 92 D.L.R. (3d) 355 (C.A.).
    
28. Supra, note 26, at p. 252.
    
29. (1994), 18 O.R. (3d) 660 (C.A.).
    
30. The Court concluded that the "same parties" requirement had been met, notwithstanding that the participation of the employer was limited to providing documents in support of its position. This conclusion implicitly contradicts earlier jurisprudence in which it was held that an employer who does not participate in an employment insurance adjudication is not a party to the proceeding for the purposes of issue estoppel: see generally, Goodman & Murray, supra, note 1, at pp. 309-310. Consequently, an employer seeking to avoid the operation of issue estoppel by declining to participate in an employment standards or employment insurance proceeding should exercise caution in furnishing information to the decision-maker.
    
31. This reasoning was subsequently adopted by several trial courts. See, for example, Munyal v. Sears Canada Inc. (1997), 29 C.C.E.L. (2d) 58 (Ont. Gen. Div.), where Métivier J. affirmed at p. 60 that issue estoppel is applicable to the decision of an administrative tribunal "…only where the decision is the result of a fair, unbiased adjudicative process where 'the hearing process provides the parties with an opportunity to know and meet the case against them.' " See also Machado v. Pratt & Whitney Canada Inc. (1995), 12 C.C.E.L. (2d) 132 (Ont. Gen. Div.); Randhawa, supra, note 17; Perez v. GE Capital Technology Management Services Canada Inc. (1999), 47 C.C.E.L. (2d) 145 (Ont. S.C.J.); Alderman v. North Shore Studio Management Ltd., [1997] 5 W.W.R. 535, 26 C.C.E.L. (2d) 228 (B.C.S.C.); and Wong v. Shell Canada Ltd. (1995), 174 A.R. 287, 15 C.C.E.L. (2d) 182 (C.A.), leave to appeal refused (1996), 193 A.R. 80n (S.C.C.).
    
32. Supra, note 4, at p. 213 [emphasis added].
    
33. Harelkin v. University of Regina, [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14 [hereinafter Harelkin]. In Harelkin, a student who had been ordered to withdraw from the university appealed the decision to a faculty committee. Although required to act judicially, the committee confirmed the order without providing the student with proper notice or an opportunity to be heard. While an appeal lay to the senate of the university, the student sought judicial review of the committee's decision. Notwithstanding the violation of natural justice, Beetz J. concluded that the discretionary remedies of certiorari and mandamus should be refused where an adequate alternative remedy exists.
    
34. [1998] 1 S.C.R. 706, 158 D.L.R. (4th) 193 [hereinafter Maybrun].
    
35. The Maybrun factors include: (1) the wording of the statute from which the power to issue the order derives; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of the collateral attack, taking into account the expertise and raison d' être of the appeal tribunal; and (5) the penalty for failing to comply with the order.
    
36. Supra, note 8. The "reasonable expectations" approach to issue estoppel had no precedent in Canada, although it was implicitly applied in Imken v. Paulry Holding Inc. (1996), 64 A.C.W.S. (3d) 806 (Ont. C.A.); see D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 1998), at pp. 31-33.
    
37. American Law Institute, Restatement of the Law, Second: Judgments (2d), vol. 2 (St. Paul, Minn.: American Law Institute Publishers, (1982).
    
38. Supra, note 4, at p. 220.
    
39. Ibid., at p. 221.
    
40. Ibid., at p. 222.
    
41. Ibid.
    

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