Can an application for sick pay be re-litigated?
Ontario, Canada
The following excerpt is from Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5 (CanLII):
The Hospital takes the position that the matter of the applicant’s entitlement to sick pay has been decided by the arbitrator and cannot be re-litigated. The applicant does not dispute this. In arriving at my determinations, I have accepted the arbitrator’s findings, to the extent they overlap with issues before me. I am satisfied that the legal doctrine of “issue estoppel” applies to prevent the applicant from challenging the essential issue decided by the arbitrator (whether the medical evidence supported a finding of total disability) and any constituent issue or fact put before the arbitrator on which she made a determination (see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460).
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