DIVISIONAL COURT FILE NO.: 483/15 DATE: 20160412
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
A.C.J.S.C. MARROCCO, PATTILLO AND BROAD JJ.
BETWEEN:
ANTHONY BETTS
Appellant
(Plaintiff)
– and –
IBM CANADA LIMITED/IBM CANADA LIMITEE
Respondent
(Defendant)
Lumi Pungea, for the Appellant (Plaintiff)
Jennifer Dolman, for the Respondent (Defendant)
HEARD at Toronto: April 12, 2016
L. A. PATTILLO J. (ORALLY)
1The appellant, Anthony Betts, appeals from the order of Diamond J. (the “Motion Judge”) dated August 25, 2015, wherein the Motion Judge:
(a) granted the respondent IBM’s motion for summary judgment and dismissed the appellant’s claim for wrongful dismissal; and
(b) correspondingly, dismissed the appellant’s motion for summary judgment.
2The appellant was employed by IBM as a Learning Specialist, first in Nova Scotia and then subsequently as a System Service Representative in New Brunswick. In 2008, the appellant had a depressive episode arising from a depressive disorder and an anxiety disorder which he suffered from. As a result, the appellant took a leave of absence from September 2008 to January 2009 and used IBM’s Short Term Disability Plan (“STD Plan”) administered by Manulife.
3In October 2013, the appellant suffered a second depressive episode soon after his father’s death. On October 16, 2013, the appellant’s depressive symptoms became too serious for him to go to work. On October 21, 2013, the appellant informed IBM that his absence from work would be longer than ten days. The appellant once again applied to the STD Plan.
4During the same period, the appellant moved to Mississauga, Ontario to live with his fiancée. There, he began psychotherapy with a psychologist named Dr. Deborah Dixon. On January 16 and February 26, 2014, Manulife rejected the appellant’s initial STD application and subsequent appeal, respectively. Manulife allows for two internal appeals.
5Starting in December 2013, IBM sent five letters it refers to as the “Absence Option Letters.” In these letters, IBM noted that, if the appellant did not return to work or submit medical documentation to Manulife by a certain date, it would consider his absence to be a voluntary resignation from his position. Each successive Absence Option provided a later date to either return to work or submit medical documentation.
6On several different occasions, the appellant provided Manulife letters and emails from Dr. Dixon recommending that he not return to work on account of his depression and anxiety. On no occasion did he provide a medical doctor’s opinion.
7After sending out four Absence Option Letters, IBM sent a final letter on May 14, 2014. In this letter, IBM asked the appellant to file additional medical documentation for the second Manulife appeal, failing which he would have to return to work by June 30, 2014. On June 20, 2014, the appellant informed IBM that he would not return to work because of Dr. Dixon’s recommendations.
8IBM registered the appellant as having resigned from his position, effective June 30, 2014.
9In granting IBM’s motion for summary judgment and dismissing the appellant’s claim of wrongful dismissal, the Motion Judge relied on the following reasoning at paras. 59 and 60 of his reasons to conclude that the appellant had “abandoned or resigned from his employment”:
59The defendant relies on three objective factors, which the defendant[s] submits taken singularly or collectively, confirm that the plaintiff indeed abandoned or resigned from his employment:
(a) a failure to report to work and fulfill his employment obligations for over 8 months (including a failure to heed the various warnings in the five option letters);
(b) a failure to follow the policies and procedures set forth in the Plan regarding applications for short term disability benefits and appeals therefrom; and
(c) a voluntary and undisclosed relocation from New Brunswick coupled with his lack of intention to return to New Brunswick and resume his employment with the defendant.
60I agree with the defendant. All of the above objective factors are indicia that the plaintiff abandoned his employment. While no one, including this Court, doubt that the plaintiff suffered from depression and anxiety disorders, having successfully obtained and concluded a previous leave of absence while on short term disability, the plaintiff was well aware of what was required of him, and the reasons why the defendant maintained its short term disability policy (a policy of which the plaintiff successfully availed himself in 2008). The absence option letters could not have been clearer, and simple and consequential language was used on each occasion. Deadlines were extended when the defendant was under no obligation to do so.
Issues
10The appellant raises the following issues on this appeal.
(i) The Motion Judge erred in determining that the appellant abandoned his employment at IBM.
(ii) The Motion Judge erred in relying on IBM’s denial of STD benefits.
(iii) The Motion Judge erred in relying on the appellant’s relocation to Ontario.
(iv) The Motion Judge erred in determining IBM had no duty to accommodate the appellant’s disability beyond the STD Plan.
Court’s Jurisdiction
11Pursuant to s. 19(1.2)(d) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this Court from a final order of a judge of the Superior Court of Justice dismissing a claim for an amount that is more than $50,000, but in which the judge would have awarded an amount that is less than $50,000.00.
12In this case, the appellant claimed in excess of $305,000 in damages in his action. The Motion Judge in his reasons determined the appellant’s damages to be less than $50,000. Accordingly this Court has jurisdiction.
Standard of Review
13The appellant agrees that the Motion Judge set out the correct test for resignation/ abandonment in para. 57 of his reasons.
14The issue is whether the Motion Judge correctly applied the test having regard to the facts as he found them. Accordingly, the standard of review is palpable and overriding error: Housen v. Nikolaisen, [2002] S.C.C. 33.
Abandonment
15In our view, the Motion Judge did not err on the facts as he found them in determining that the appellant abandoned his position with IBM.
16The appellant failed to submit any medical evidence to establish that he was medically unable to perform his job, notwithstanding IBM requested that information on numerous occasions. Over a period of 8½ months, IBM offered the appellant numerous chances to submit appropriate medical evidence to establish that he could not return to work. As the Motion Judge noted, even an employee suffering from medical issues is not immune from being found to have abandoned his employment.
17The appellant further argues that in applying the test for abandonment/resignation, the Motion Judge improperly incorporated the concept of termination for cause which was not pleaded by IBM in its defence.
18While the Motion Judge referred in his reasons to the fact that the appellant’s conduct in moving to Ontario could have amounted to cause for dismissal, that comment did not impact on his decision that the appellant, through his actions, abandoned his employment with IBM.
IBM’s Reliance on the STD Plan
19Nor do we consider that the Motion Judge erred in relying on the fact that the appellant failed to comply with the STD Plan. The STD Plan was linked to the appellant’s employment. Simply put, if the appellant could not establish through medical evidence that he was not able to perform his job for medical reasons, the Motion Judge was entitled to rely on that fact in reaching his decision that the appellant, after 8½ months and many warnings, abandoned his employment.
Relocation
20Similarly, there was evidence before the Motion Judge upon which he was entitled to rely to find that by leaving New Brunswick and moving to Ontario, that the appellant abandoned his employment with IBM which was in New Brunswick.
Duty to Accommodate
21The appellant further submits that the Motion Judge erred in finding that IBM had no duty to accommodate his condition over and above the STD Plan.
22Whether such a duty exists depends, in our view, on the circumstances of employment. In this case, IBM’s actions in dealing with the appellant in respect to the STD Plan incorporated significant accommodation to the appellant. On the facts as found by the Motion Judge, we agree with the Motion Judge that IBM had no independent duty to accommodate the appellant over and above its STD Plan.
Conclusion
23For these reasons, therefore, we dismiss the appeal.
A.C.J.S.C. MARROCCO
COSTS
24I have endorsed the Appeal Book, “For oral reasons given today the appeal is dismissed. Costs to the respondent in the amount of $7,500 all inclusive.”
___________________________ L.A. PATTILLO J.
A.C.J.S.C. MARROCCO
D. A. BROAD J.
Date of Reasons for Judgment: April 12, 2016
Date of Release: May 11, 2016
CITATION: Betts v. IBM Canada Limited, 2016 ONSC 2496
DIVISIONAL COURT FILE NO.: 483/15 DATE: 20160412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, PATTILLO AND BROAD JJ.
BETWEEN:
ANTHONY BETTS
Appellant
(Plaintiff)
– and –
IBM CANADA LIMITED/IBM CANADA LIMITEE
Respondent
(Defendant)
ORAL REASONS FOR JUDGMENT
L. A. PATTILLO J.
Date of Reasons for Judgment: April 12, 2016
Date of Release: May 11, 2016
