Nuttall v. Kenora District Services Board, 2018 ONSC 3859

Citation and Court Information

CITATION: Nuttall v. Kenora District Services Board, 2018 ONSC 3859

DIVISIONAL COURT FILE NO.: DC-18-003 DATE: 20180619

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, HARVISON YOUNG and McEWEN JJ.

BETWEEN:

LESLIE NUTTALL AS ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF THOMAS DAVID NUTTALL

Jordan Lester, for the Plaintiff (Respondent)

Plaintiff (Respondent)

– and –

KENORA DISTRICT SERVICES BOARD

Allan D. McKitrick, for the Defendant (Appellant)

Defendant (Appellant)

HEARD at Thunder Bay: June 19, 2018

Oral Reasons for Judgment

SWINTON J. (Orally)

Background

1The appellant Kenora District Services Board (the “Board”) appeals, with leave, the order of Warkentin R.S.J. dated June 20, 2017 dismissing the appellant’s motion for summary judgment in this wrongful dismissal action.

2The late Thomas Nuttall (the “respondent”) was employed by the Board as the Maintenance, Repair and Building Custodian at Patricia Plaza in Sioux Lookout. He was employed for just over 9 years when terminated for cause on December 19, 2014.

3The Board is a publicly-funded services administration board for the District of Kenora. It owns and operates Patricia Plaza. The respondent was both employed at and resided at Patricia Plaza.

4The Board states that it was justified in terminating the respondent’s employment because of two incidents. First, the respondent assaulted his former girlfriend EA in his apartment at Patricia Plaza in November 2014. Second, the Board states that during the investigation of that assault, it learned that the respondent had assaulted EA’s pregnant daughter JA in January 2013.

5The record shows that the respondent assaulted JA while he was on sick leave and receiving treatment for cancer. The record also shows that there was a history of aggressive conduct by EA against the respondent, and she was subject to a “No Trespass” order regarding Patricia Plaza.

6The respondent pleaded guilty to both of these assaults. He received a conditional discharge for the assault against JA and an absolute discharge for the assault against EA. Both the assaults occurred while he was off duty.

7The Board informed the respondent that as a result of his conduct, they had lost their trust in him to perform his duties without causing harm to their other residents and the Board’s reputation, and they considered him to be a risk to their other residents because of his access to the buildings in which they live.

8In this action, the respondent argues that there was not just cause for dismissal. In particular, he alleges that the investigation was flawed and unfair, and the Board failed to consider mitigating circumstances relating to the assaults or the respondent’s developmental disability, among other considerations.

Analysis

9The Board argues that the motions judge erred in failing to grant its motion for summary judgment. We disagree.

10The motions judge correctly set out the legal principles to be applied in a motion for summary judgment. She concluded that this is not an appropriate case to grant summary judgment, as there were genuine issues for trial – for example, (1) whether the appellant had prior knowledge of the 2013 incident of assault on JA; (2) whether the Board had knowledge of the respondent’s developmental limitations, and whether the respondent’s human rights were violated during the investigation; and (3) whether mitigating factors had been taken into account. She observed that the facts relative to the mitigating factors were in dispute.

11The Board argues that the motions judge’s reasons were inadequate. We disagree. These reasons are clear and sufficient to permit meaningful appellate review.

12The Board invokes s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and suggests this Court can substitute its view on the merits of this case and that it would be fair to do so, particularly in light of the respondent’s death shortly after the decision of the motions judge. In our view, we have no jurisdiction to intervene without first finding an error by the motions judge. In our view, there has been no error.

13We see no error in the motions judge’s approach to the evidence. She reviewed the record and concluded that there are facts in dispute that require a trial. For example, there is an issue of the Board’s knowledge of the 2013 assault, particularly given the absence of evidence from Mr. Sterling, the respondent’s long-time supervisor. In addition, the evidence accepted by the motions judge, including the report of a psychologist and the respondent and his mother, brought into serious question Ms. Pollock’s evidence that the Board was unaware of any disability. If so, there is an issue to be determined with respect to the respondent’s rights under the Human Rights Code. Finally, the judge concluded that there are factual disputes in relation to mitigating circumstances that require a trial. In our view, this would include the circumstances surrounding the assaults.

14We see no error on the part of the motions judge in accepting the report of the psychologist. The Board did not object to the admissibility of the report at the time, nor did it seek to cross-examine the psychologist.

15The motions judge reasonably concluded that there are genuine issues requiring a trial. The first factual issue she raised is material to the question of whether the Board knew about the first incident before the investigation in November 2014 and chose not to act on it. This goes to the issues of condonation and the credibility of the Board’s conclusion about the seriousness of the conduct in the circumstances. The second issue is relevant to determining the fairness of the investigation prior to the termination of employment. The third issue is relevant to determining whether termination for cause was an appropriate sanction.

16The motions judge reasonably concluded that there is a need for a trial here, so that the full factual context surrounding the dismissal can be examined in order to determine whether the respondent was wrongfully dismissed. On the record provided by the Board, the motions judge reasonably – indeed, correctly – concluded that she could not determine that the Board was entitled to summary judgment, given the factual disputes between the parties.

17The Board submits that the motions judge erred in suggesting that domestic relationships may mitigate against the employment law consequences of the assaults. We see nothing in her reasons that supports this submission.

18The Board now asks that the Court consider the impact on the former partner and her daughter if they should be required to testify at trial. We are not satisfied that these individuals would be witnesses. In any event, this is not a relevant consideration in determining whether summary judgment should be granted.

19Nor would we give effect to the argument that the respondent is deceased, and therefore, a trial would be unfair. That is an issue to be addressed in the trial process.

20Finally, the Board argues that the motions judge should have considered whether to use her powers to order a mini-trial. She was not asked to do this. In any event, we agree with her conclusion that a trial is necessary to resolve the factual disputes.

Disposition

21For these reasons, the appeal is dismissed.

22The Board asks that this Court provide directions to expedite the resolution of this matter. That request, effectively for case management, should be addressed to the Regional Senior Justice or a judge that she delegates.

Costs

23Costs to the respondent are fixed at $7,000.00 all inclusive, an amount agreed upon by the parties.

___________________________ Swinton J.

I agree

Harvison Young J.

I agree

McEwen J.