Court File and Parties

COURT FILE NO.: CV-14-0109 DATE: 2017-03-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michael Lemesani, Plaintiff Jordan Lester, Counsel for the Plaintiff

• and -

Lowerys Inc., Defendant Daniel Matson, Counsel for the Defendant

HEARD: January 3-6, 2017 and January 25-26, 2017 at Thunder Bay, Ontario

Madam Justice H.M. Pierce

Reasons for Judgment

Introduction

[1] At its heart, this is a claim for damages for wrongful or constructive dismissal of a man who worked as a salesman for the defendant for more than fifteen years. Mr. Lemesani contends that he was constructively dismissed by the defendant due to harassment in the workplace. He argues that he is entitled to damages for discrimination on the grounds of disability, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 because Lowerys failed to accommodate his disability. He also claims punitive and aggravated damages. The onus is on him to prove these claims on a balance of probabilities.

[2] Mr. Lemesani claims damages of twenty months’ salary or $78,376.60 in lieu of notice; $40,000.00 in Human Rights damages; $60,000.00 in punitive damages; and $60,000.00 in aggravated damages.

[3] The defendant, Lowerys, Inc., is a retailer selling stationery supplies, office furniture, copiers and computers, water and related items. It has several avenues of defence. Firstly, it denies harassing the plaintiff, constructively dismissing him.

[4] Secondly, the defendant contends that the contract of employment was abandoned or frustrated.

[5] Thirdly, the defendant takes the position that Mr. Lemesani, who never sought an accommodation for his disability and that the employer was not in breach of its duty to accommodate him under the Human Rights Code. It also argues that the claim is statute-barred.

[6] As to damages, Lowerys submits that Mr. Lemesani failed to mitigate his damages. It submits that no damages are owed to the plaintiff, but if they are, they do not exceed seven months’ notice, reduced by earnings between 2012 and 2015. The defendant also submits that on the facts of this case, no punitive or aggravated damages are warranted.

[7] For reasons that follow, I have concluded that the claim is without merit and is dismissed.

Constructive Dismissal

[8] Generally, counsel agree on the principles of law relating to constructive dismissal. In Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at paras. 34 and 39, the Supreme Court of Canada established a two-part test for constructive dismissal. The court must:

1. determine whether the employer’s unilateral change to the employment contract constitutes a breach, such that it substantially altered an essential term of the contract, and;

2. if it has been objectively established that a breach occurred, determine whether, at the time of the breach, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment were being substantially changed.

[9] The determination of whether the employer has fundamentally breached the employment contract must be made on an objective appreciation of the employer’s conduct and not on the employee’s perception of that conduct. Where an employer unilaterally alters a substantive term of the employment contract, the employee is entitled to consider himself constructively dismissed. See: Rinaldo v. Royal Ontario Museum at para. 80.

[10] Put another way, the objective test asks, would a reasonable person in the same situation as the employee have felt that the essential terms of the employment contract were substantially altered such that the employer showed that it no longer intended to be bound by the contract? See: General Motors of Canada Ltd. v. Johnson, 2013 ONCA 50 at para. 67.

[11] Where a claim of constructive dismissal is based on harassment, the onus is on the plaintiff to establish that a poisoned workplace existed. This, too, is an objective test. At para. 66 of General Motors, the Court of Appeal held:

… A plaintiff’s subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created….

[12] At para. 67, of the General Motors case, the court clarified that generally, a single incident will not ground a complaint of a poisoned workplace. Instead, it determined that, except for “egregious, stand-alone incidents,” wrongful conduct that is serious enough to create a hostile or intolerable work environment must be persistent or repeated. The employee must show that the employer’s persistent conduct made continued employment intolerable (General Motors, at para. 91).

[13] Unpleasantness, rudeness, or a misunderstanding of the facts by a member of management will not create such an intolerable environment that a constructive dismissal occurs. A management style that is rough, uses profanities, or is otherwise insensitive does not necessarily lead to constructive dismissal – particularly not when the employee does not seek redress for his complaints through available means. The conduct must go beyond the bounds of reasonableness to constitute constructive dismissal. See: Mortensen v. Convergys CMG Canada Limited Partnership; also McMillan v. Selectrucks of Toronto Inc., 2011 ONSC 6128, [2011] O.J. No. 4602, at paras. 45 and 52.

[14] In Chartrand v. R.W. Travel Limited, 2011 ONSC 2148, [2011] O.J. No. 6420, at para. 7, the court observed that an employer is entitled to criticize an employee’s unsatisfactory work and take reasonable corrective measures as appropriate.

Was Mr. Lemesani Constructively Dismissed?

[15] Mr. Lemesani says that he was constructively dismissed on two grounds: first, on grounds of harassment, when the employer failed to address a toxic work environment that was intolerable; and second, when his benefits were cut off on June 30, 2013. Allegations of harassment will be examined first.

[16] Mr. Lemesani began his employment with Lowerys on June 5, 1996 when he was assigned to sell stationery products. His employment contract was straightforward. During the first six months, it provided for a monthly salary of $3,000.00 per month and for health benefits after a three month probationary period.

[17] After six months of employment and a performance review, compensation changed to a fixed salary of $1000.00 per month and 5% commission on regular sales, with certain exceptions related to gross profit margins. The contract stipulated that the territory was assigned by account. It stated, “These accounts will be yours exclusively for most of our product lines with the exception of commercial copiers, faxes, etc. and design/contract furniture projects.” Scott Christie was his first manager.

[18] In about 2001, Mr. Lemesani’s sales assignment changed. He began to sell office machines: faxes, copiers and printers. His salary increased, along with his bonus which was paid quarterly when sales topped $120,000 per quarter. Mr. Lemesani and the employer each paid half of the premiums for his health, dental, and long term disability plans. Andrew Christie became Mr. Lemesani’s manager.

[19] At the time of the events complained of, Mr. Lemesani reported to Andrew Christie, who was one of four owners of the company. The owners, Scott Christie, Andrew Christie, Kim Christie and Shawn Christie are also managers of the defendant company.

Harassment

[20] Mr. Lemesani suffered an acute anxiety attack on August 19, 2011 that led to hospital treatment. He never returned to work after that. He says that the anxiety attack was caused by the continuing harassment he suffered at work that the defendant refused to rectify. The defendant disputes that Mr. Lemesani was harassed.

[21] The plaintiff’s managers, Scott Christie and Andrew Christie, testified that the plaintiff did not complain of bullying or harassment. They deny that harassment occurred.

House Construction

[22] The first incident of harassment alleged by Mr. Lemesani occurred in the summer of 2010.

[23] He testified that one of the owner/managers, Scott Christie, was building a new house and having trouble with his builder. He and Scott were friends. He said that Scott Christie asked for his assistance to build the house as Mr. Lemesani had previous experience as a general contractor.

[24] Mr. Lemesani said he agreed to help, but not at the wage he was being paid at Lowerys. He stated that he reviewed the drawings, obtained quotations from heating, plumbing, and electrical contractors and arranged for the excavation of the site. He added that he drew up the permits and would supervise the building of the foundation and the laying of the weeping tiles.

[25] Mr. Lemesani presented an invoice in the amount of $5,000.00 to Scott Christie for his services. Scott expressed outrage at the invoice and accused him of taking advantage. Scott said that he had lost trust in Mr. Lemesani. He told him that he could get a carpenter for $50.00 an hour.

[26] Mr. Lemesani felt shocked at this reaction and told Scott Christie, “I can’t believe how you’re treating me.” He indicated that he would not build the house.

[27] Mr. Lemesani reduced his invoice to between $1,200.00 and $1,400.00 but it was still not acceptable. Scott would not pay more than $700.00. The plaintiff testified that Scott told him that if he did not accept that amount, his continued employment was questionable. The plaintiff said that Scott Christie shunned him and said that others in the office picked up on his attitude and shunned him, too. He said that, thereafter, Scott treated him roughly and displayed a cold, callous attitude towards him.

[28] Mr. Lemesani testified that he told his manager, Andrew Christie, that Scott had threatened his job over the dispute, but that Andrew did nothing.

[29] The defence evidence about this incident is quite different. Where it conflicts with that of the plaintiff, I prefer the defendant’s evidence. For reasons that follow, Mr. Lemesani’s credibility was seriously challenged.

[30] In cross-examination, Mr. Lemesani’s evidence disintegrated. He insisted that he was the general contractor for Scott Christie’s house but agreed that Scott’s name and not his appeared on the building permits as the general contractor. He also admitted that he and Scott never agreed on what Mr. Lemesani’s role would be on the project. He acknowledged that they never agreed on his remuneration for the project. On a previous occasion when he helped Scott with a cottage project, he admitted that he was not paid and did not expect to be paid.

[31] When the $5,000.00 invoice was tendered, Mr. Lemesani admitted that there was a hole in the ground and quotations for work to be done. He explained that he billed Scott Christie in advance for work, despite there being no agreement to pre-bill, let alone any hourly rate. The invoice contained no break-down of work done or hours of work performed. In cross-examination, Mr. Lemesani estimated the bill represented ten hours. He said he assumed that Scott would know what he was going to do.

[32] Mr. Lemesani explained in cross-examination that he worked on this project on Lowerys time, including when he made sales calls to suppliers, during work. When it was put to him that he was “double-dipping” by receiving pay from Lowerys to do their work and also charging Scott for working on Lowerys’ time, he responded, “I was double working.” It was his view that Scott was irrational when he tried to explain his invoice. He said both men raised their voices at the office.

[33] Scott Christie’s testimony about the matter casts a very different light on Mr. Lemesani’s evidence. He stated that the two men had been friends prior to this episode. Mr. Lemesani was handy and did the lock stone work at Scott’s camp one afternoon without compensation. The defendant also hired him to do an after-hours tiling job for $50.00 an hour at the defendant’s previous location.

[34] Scott testified that his relationship with Mr. Lemesani became strained when, in 2010, Mr. Lemesani was preoccupied in building multiple-unit houses. He was dealing with subcontractors while at work and on site, during the working day, leading to several complaints from other staff.

[35] Scott Christie testified that he asked Mr. Lemesani to help him with the building permit and an excavation quotation. He stated that he did not ask Mr. Lemesani to be his general contractor. He added that since Mr. Lemesani was his brother’s employee, he could not monopolize his time. Mr. Lemesani did work on Lowerys’ time to obtain the excavation quotation and helped Scott to obtain a building permit.

[36] As they had not discussed payment, Scott said the invoice was an unpleasant surprise. He agreed that he was agitated. The invoice contained no details. Scott asked for details. After several requests, Mr. Lemesani indicated that three hours of work had been performed whereas ten hours of work had been billed. No doubt this is the reason for the comment the plaintiff attributed to Scott: “I could get a carpenter for $50.00.”

[37] Scott Christie denies threatening Mr. Lemesani’s job. He explained, “I didn’t have the right. He was my brother’s employee. We all take care of our own positions.” He testified that as he considered the plaintiff a friend, he didn’t treat him differently over this dispute.

[38] Unlike Mr. Lemesani’s testimony, Scott Christie’s evidence was not undermined in cross-examination. He indicated that no formal agreement was drawn because he felt that any limited work Mr. Lemesani did was done on office time for which he was paid by Lowerys. He stated that there were ten days between when he asked Mr. Lemesani for help and when he decided not to proceed. During that time, a permit and an excavation quote were obtained. Ultimately, another general contractor was selected.

[39] Scott Christie believed that $700.00 was fair for three hours work although Mr. Lemesani was not happy with the amount.

[40] Mr. Lemesani’s manager, Andrew Christie, testified about the house building dispute. He indicated in examination-in-chief that Mr. Lemesani told him one morning that Scott was upset about his invoice for the new house. Andrew told Mr. Lemesani that this was between him and Scott, and that he should do what was right and fair.

[41] Andrew Christie was not challenged in cross-examination. He stated that Mr. Lemesani told him that Scott was upset about his invoice but never said that Scott had threatened his job. He stated that the dispute between Scott and Mr. Lemesani was a personal matter that had nothing to do with Lowerys. He said that it was not his responsibility. Scott was not Mr. Lemesani’s manager, and it was up to Andrew to hire and fire within his division.

[42] I accept that Andrew Christie stayed out of it. Within the corporate structure, Scott had no authority to fire Mr. Lemesani and he knew it. I do not find that Scott Christie threatened Mr. Lemesani’s employment, or that Mr. Lemesani reported such a threat to Andrew Christie.

[43] Paul Ivenore, who testified for the plaintiff, stated that he did not observe any major issues between the plaintiff and Scott Christie.

[44] Another co-worker of Mr. Lemesani’s, Dustin Reid, testified for the defendant. Mr. Reid worked in stationery and furniture. He was supervised by Scott Christie. Mr. Lemesani admitted that he and Mr. Reid did not get along. He said that he regarded Mr. Reid as a poor salesman who was “not worthy of my time.”

[45] Mr. Reid was questioned about Mr. Lemesani’s allegation that the other staff picked up on Scott’s negative treatment of the plaintiff and shunned the plaintiff.

[46] Mr. Reid testified that his relationship with Mr. Lemesani was strictly business. They worked in close quarters. He stated that if he did not initiate a “good morning” to Mr. Lemesani when he came in at the start of the day, Mr. Lemesani would not greet him. The plaintiff told him, “I’m your superior. You should say it first.” This evidence was not challenged in cross-examination.

[47] Mr. Lemesani was also critical of the company’s sales representative at Fort Frances. Evidently, he brought some attitude with him to the office. This may explain any chilly attitude on the part of the plaintiff’s co-workers. I do not conclude that there was any objective basis for the plaintiff’s complaint of harassment over construction of Scott Christie’s house.

Leasing Schedules

[48] The second complaint of harassment Mr. Lemesani made was that Andrew Christie withdrew leasing schedules for copiers that had previously been given to him. He said that this impaired his ability to service customers. He said that he was “handcuffed” by not having access to information about when a lease expired, what buy-out could be expected, and what new terms might apply. He testified that Andrew Christie explained that the schedules were withdrawn for security reasons.

[49] In cross-examination, Mr. Lemesani agreed that for security reasons, Andrew wanted to protect the sensitive information that was contained on the leasing schedules. He also agreed that the leasing schedules contained particulars of other salesmen’s clients, but he denied that he would “poach” their clients at the end of the lease. However, the evidence shows there was an issue about Mr. Lemesani poaching other salesmen’s clients.

[50] Mr. Lemesani conceded that Andrew Christie would advise him when the end of one of his client’s leases was approaching, but he complained that sometimes leases were missed or left too late.

[51] Another salesman, Robert Balak, worked in the copier division under Andrew Christie. He testified that Andrew controlled access to leasing details. Jon Remus, who testified for the plaintiff, confirmed this arrangement.

[52] Andrew Christie testified that formerly, the defendant’s lease partner would e-mail leasing details six to eight months in advance of the lease termination with particulars. These communications initially went directly to sales staff. But because the schedules contained confidential information, he did not think this information should be available to all sales staff. He withdrew the leasing schedules from all staff in the organization. Thus, Mr. Lemesani was not singled out for special treatment. Andrew stated that no one else complained. He also denied that sales were affected or that leads on expiring leases dried up as Mr. Lemesani contended.

[53] Andrew Christie also learned that Mr. Lemesani was stealing the leasing accounts from his fellow salesmen. Other staff would complain and Andrew would have to chastise Mr. Lemesani, reminding him, “It’s not your account.” Undoubtedly this conduct affected the goodwill that other staff felt towards Mr. Lemesani.

[54] I conclude that the decision to withdraw leasing schedules was made for objectively reasonable business purposes, and was not directed at Mr. Lemesani. It would not be seen as harassment by a reasonable objective bystander.

Expense Accounts

[55] Mr. Lemesani complained that part of the employer’s pattern of harassment involved the withdrawal of his expense account. For reasons that follow, I do not accept his position.

[56] Mr. Lemesani testified that it was his practice to expense items to the defendant monthly that were incurred to entertain clients: golfing, providing pizza, buying coffee or lunches. However, he admitted in cross-examination that only once had he taken a client golfing, and that was pre-approved. He believed he was in a different class of sales staff because he travelled out of town. He stated that he expensed entertainment of clients so long as it was not excessive.

[57] Mr. Lemesani did not allege that he lost sales when the expense account was withdrawn but complained that he lost one-to-one time with his clients. He felt that his expense account was withdrawn to control costs and to limit his interaction with clients. In cross-examination, he conceded that it was pure speculation on his part that Andrew Christie wanted to limit his tie with clients.

[58] Andrew Christie testified that sales associates in his division do not have expense accounts. In cross-examination he added that Mr. Lesesani could not expense costs for clients without prior approval. He stated that Mr. Lemesani did not have an expense account and so there none was taken away. He added that he did not want any sales staff to have expense accounts.

[59] Scott Christie was also asked about expense accounts. He testified that there were no formal expense accounts for sales people apart from coffee. If meals were purchased for clients, they must be pre-approved. He stated this was not a written policy.

[60] Dustin Reid was asked about expense accounts. He stated that the company policy required pre-approval by a manager to take a client to lunch. He added that the policy has not changed. It was his practice to buy a client coffee without expensing it to the defendant.

[61] Robert Balak testified that there was no actual expense account but that expenses for clients must be pre-approved by Andrew Christie.

[62] I conclude that the defendant’s policy was that sales staff did not have expense accounts, but that items expensed to the defendant on account of clients must be pre-approved by management. In my view, this policy was enforced companywide for objectively reasonable business purposes. It was not directed at Mr. Lemesani. It would not be viewed as harassment by a reasonable objective bystander. It did not constitute harassment.

Travel

[63] Mr. Lemesani complained that his employer’s withdrawal of travel to Kenora and Fort Frances constituted harassment.

[64] During a period when a Lowerys’ salesman based in Northwestern Ontario left the firm, Mr. Lemesani was asked to service Kenora, Fort Frances, Atikokan and Dryden to fill the gap. During this time, he traveled monthly to Kenora and Fort Frances. He was assigned to sell copiers and business machines and received mileage for this travel. He also traveled to Atikokan.

[65] Mr. Lemesani testified that another competitor had a strong foothold in this area. He thought it was necessary to lay a foundation in order to get more sales.

[66] In due course, the defendant hired staff to service that area and there was no longer any need for Mr. Lemesani to do so, although he retained Atikokan as part of his territory. From a business perspective, it was expensive to send a salesman when one was already in place. In addition, sales were slipping in Thunder Bay in Mr. Lemesani’s absence. Accordingly, Andrew Christie explained to Mr. Lemesani that sales were “anemic” and that travel to Kenora and Fort Frances would stop.

[67] In cross-examination, Mr. Lemesani agreed that Lowerys had hired another employee in Fort Frances to do the work, though he was not impressed with his salesmanship. He also agreed that sales in Kenora and Fort Frances were weak. He conceded that he and the defendant made more money when he remained in Thunder Bay to service local customers.

[68] I conclude that the decision to withdraw Mr. Lemesani from travel to Kenora and Fort Frances was made for legitimate business reasons and was objectively reasonable. It did not constitute harassment.

Furniture Sales

[69] Mr. Lemesani complained that he was harassed when in December, 2010, Scott and Andrew Christie directed him not to sell office furniture. He took the position that the defendant was trying to limit his income with this directive. He told management that he thought this decision was wrong from a business perspective as he believed no one was making these sales. He stated that if one of his copier clients wanted a chair, he would sell him a chair. He valued these sales at $4,000 - $5,000 per month.

[70] Scott and Andrew Christie both told him that his role was to be a copier salesman and that they wanted him to sell copiers. Mr. Lemesani stated that he felt “ripped off:” that he could not meet his sales goals without these additional sales.

[71] Once again, there is evidence that Mr. Lemesani failed to understand or accept the broader business plan of his employer. In cross-examination he agreed that he could sell furniture if he had prior approval from Andrew or Scott. If there was no sales representative assigned in the stationery division, he conceded that he could sell furniture.

[72] Kim Christie was the manager in charge of furniture sales. Leads with respect to furniture sales were directed to her. She would, in turn, assign these leads to a particular sales representative to follow up. Only in remote areas where there were no other sales representatives were sales staff allowed to sell all product lines.

[73] Scott Christie testified that Mr. Lemesani did not sell furniture when he was in the machine division unless he was out of town and there was no other account representative. He stated that Mr. Lemesani was told numerous times not to “dabble” in furniture. He denied that Mr. Lemesani was selling thousands of dollars in office furniture. He reprimanded Mr. Lemesani when he discovered he had been selling furniture and reminded him that it was not his side of the business.

[74] Andrew Christie testified that he did not want Mr. Lemesani selling furniture as it took time away from his division.

[75] Management had complaints from other staff about the plaintiff “poaching” their clients, resulting in lost commissions. Scott Christie found it necessary to speak to Mr. Lemesani about this on three or four occasions.

[76] An example of Mr. Lemesani poaching another sales representative’s client occurred in the Allied Construction Workers transaction. This client was assigned to Dustin Reid who had nurtured the relationship.

[77] Instead, Mr. Lemesani took the lead, engaged in product selection, and made the sale before his meddling was discovered. Mr. Reid testified that Mr. Lemesani had no training with respect to the product, in measurement or in other aspects of the sale.

[78] Scott Christie testified that Mr. Lemesani had been told many times not to interfere. If he learned of an inquiry, he was obliged to pass it on to the manager or sales representative if it was for an existing client. In order to make a point, management denied Mr. Lemesani the commission for the Allied Workers sale. Half of the commission went to Mr. Reid and half went to the defendant. Mr. Lemesani was aggrieved by this outcome, and complained to Kim, Brian and Andrew Christie. However, he conceded in cross-examination that half the commission was paid to the defendant because he wasn’t the sales representative on the file.

[79] Even from the plaintiff’s testimony, it is obvious that the defendant did not want Mr. Lemesani taking sales from other sales representatives. It is easy to understand how this poaching of clients within the organization would be disruptive.

[80] It was at odds with the defendant’s business plan and structure, including the payment of commission to its staff. In addition, it obviously undermined staff morale, caused confusion about who was in charge of a particular client’s account, led to gaps in training and product knowledge, detracted from time available to service clients within a division, and placed a sales representative between two managers.

[81] What is surprising is that Mr. Lemesani persistently ignored the direction of management not to take other representatives’ clients.

[82] I conclude that the defendant’s directive that Mr. Lemesani not sell office furniture without prior approval was a reasonable business goal and would be viewed as such by a reasonable objective bystander. It does not form the basis of harassment directed at the plaintiff.

Yard Sale

[83] The defendant held an annual yard sale at its premises to sell overstocked items, used copiers and “scratch and dent” items. Mr. Lemesani testified that he was instructed by Scott Christie to take some notices to the businesses in the neighbourhood to generate interest. He told him to take a new employee, Jon Remus, with him. Upon their return, the plaintiff told Scott that he had invited an embroidery company to attend the event and Scott blew up. Mr. Lemesani said that Scott cursed at him and called him “stupid” in front of Mr. Remus, to his embarrassment. He cited this as an instance of harassment.

[84] The testimony of Mr. Remus about the incident was qualitatively different. He testified for the plaintiff. Mr. Remus indicated that they were instructed to invite clients of the defendant and to deliver notices about the event. When they returned to the office, Scott Christie learned that they had invited an embroidery shop that was not a client. Scott became agitated because Lowerys served a larger embroidery shop in the neighbourhood and he felt it was a loyalty conflict. Mr. Remus was aware that Mr. Lemesani was being chastised but he said, “I’ve experienced the same.”

[85] Scott Christie also testified about the yard sale. He stated that Mr. Lemesani and Mr. Remus were instructed to walk around the block to invite clients to sell their goods at the yard sale. When he learned that Mr. Lemesani had invited a non-client, a competitor of an existing client, he became frustrated and scolded him. He denied calling him “stupid” or using expletives.

[86] It was Scott Christie’s view that Mr. Lemesani knew the existing clients. I accept his evidence on this point: Mr. Lemesani referred to bringing in a new client. Scott Christie commented that the plaintiff did not understand his logic in what was a business decision. The purpose of the yard sale was to reward existing clients for their patronage and to allow them to make some money at a commercial yard sale, with the synergy of a group sale.

[87] This is another example of Mr. Lemesani failing to take direction from management. He sees his own interests but fails to understand the broader business objectives.

[88] In my view, a reasonable objective bystander would not conclude that this incident led to a poisoned workplace environment. Accepting Mr. Lemesani’s testimony at its highest, which I do not, this was an isolated incident.

[89] I am not persuaded that the chastisement that Mr. Lemesani received on this occasion was part of persistent conduct that made the workplace intolerable. The employer is entitled to criticize the performance of its employees, even to the point of unpleasantness. Mr. Remus acknowledged that he, too, had been corrected in the workplace. On this occasion, the chastisement was done for objectively reasonable business purposes. That Mr. Lemesani felt subjectively offended is not the criteria for proof of harassment.

Tennis Party

[90] Mr. Lemesani testified in examination-in-chief that each summer, the Christies held a tennis party at their cottage at Amethyst Harbour and that each year he was invited to cook. He viewed it as an opportunity to make contacts. In the summer of 2011, he was not invited. No reason was given for why he was not invited. He attributed his exclusion as pay-back for the dispute over the housing invoice. Even though this was a volunteer activity, he believed this was evidence of workplace harassment.

[91] In cross-examination, the plaintiff agreed that this was not a Lowerys’ party. He admitted that he had not been invited to participate every year. There had been a gap of three or four years since he was previously invited to volunteer. He stated that he was the only employee who was invited to volunteer for the event. This was not correct. It was his perception that Christie family always needed help and there was no evidence they did not need help in 2011.

[92] In fact, there is such evidence. Scott Christie testified that the annual tennis party at Amethyst Harbour was hosted in rotation by the cottagers. When it was the Christies’ turn to host, Andrew asked Mr. Lemesani to come and help. He was not there as a guest, but rather as a volunteer worker.

[93] Scott Christie indicated that Mr. Lemesani was not invited in 2011 because the Christies were not hosting that year. He added that the dispute over the house construction bill had no bearing on whether Mr. Lemesani was invited to the tennis party. He explained that because as the plaintiff was Andrew Christie’s employee, Andrew was the one authorized to excuse Mr. Lemesani from work to prepare for the party. For this reason, Andrew issued the invitation, not Scott.

[94] This evidence was corroborated by the testimony of Dustin Reid, whose evidence on this point was not challenged in cross-examination. He said that he was invited to work at the Amethyst Harbour Campers’ Association tennis party the year the Christies hosted it but he was not invited to help in any other year.

[95] In my view, a reasonable objective bystander would not conclude that a poisoned workplace environment had been created by the employer not asking Mr. Lemesani to volunteer to help at the tennis party. This was an extra-curricular event.

[96] I do not accept Mr. Lemesani’s perception that he was being excluded from the tennis party in the summer of 2011 as pay-back. He is inclined to see his interactions with the defendant through a self-serving lens which is not in accordance with objective reality. He feels that if he has hurt feelings, it must be because the defendant has harassed him. I do not share his conclusion and cannot find there is objective evidence of harassment on this occasion.

Vacation

[97] Mr. Lemesani contends that he was harassed by the defendant over his request to take vacation in a block of four weeks, instead of the two-week block permitted as part of company policy.

[98] In examination-in-chief, Mr. Lemesani testified that in 2009, he vacationed in Panama for two weeks. In 2010, he requested a month. He said that it took two days of travel each way to get there. He stated that he made the request to Andrew Christie in November, after the run-in he had with Scott Christie over the house invoice. He said that despite many e-mails to Andrew Christie, he did not hear back until mid-December.

[99] He also testified that, ultimately, Andrew granted his request but he altered his bonus structure, cancelled out-of-town trips, and forbid him selling office furniture.

[100] Mr. Lemesani felt aggrieved by the decision to alter the bonus structure that year and argued that it was a wrong decision but he took his vacation anyway. He said, “It crushed me.”

[101] He testified that it was detrimental and indicated that he felt harassed. It was his position that this was punishment for his dispute with Scott Christie over his invoice. He added that upon his return from vacation, he was treated coolly. He stated, “They thought I was dead.”

[102] Upon reviewing the documentary record, I find that Mr. Lemesani is not credible with respect to this issue.

[103] Exhibit 4 shows that on October 18, 2010, Mr. Lemesani e-mailed Andrew Christie requesting 4-weeks’ vacation in February, 2011. He explained that he had accommodation pending that he would like to confirm.

[104] Andrew Christie responded to the e-mail the same day, noting that company policy was that vacations could not be longer than two-weeks at a time. He wrote:

I will allow the first 3 weeks of February and this way I won’t have to fight with you for the days that you will want to take the rest of the year.

[105] Later on October 18, Mr. Lemesani replied to Mr. Christie via e-mail as follows:

One reason for 4 weeks is that it will cost me less in the long run and because of the distance 4 days plus is for traveling this is why I asked for 4 weeks…. I do appreciate your quick response I hope you can understand I do realize that I will expend all vacation but this is how I can do it as I am looking for property down there and we are getting close.

[106] Andrew Christie replied to this message on October 27, 2010 in the following terms:

Michael, I have decided to allow this vacation. So in order to make this fair for the company as your salary is based on you selling $480,000 a year I will be holding off on your quarterly bonus system until the end of the year. So this means that if you make it over your bonus target of $120,000 in one quarter I will hold this to see if you make your $480,000 target. If you make your target I will pay out the bonus for the year in February 2013. [sic] I think this is only fair as you will have no sales for Feb with very little sales in March and April. Also, as you will not have anymore holidays left you will be docked pay if you require time off through the rest of the year. Company policy for sick days is 4 per year.

[107] Firstly, as can be seen by this e-mail chain, Mr. Lemesani did not have to send many e-mails in furtherance of his request. Secondly, Mr. Christie’s response was not delayed until mid-December, as Mr. Lemesani testified, but was prompt in response to the request.

[108] Thirdly, the response shows that the request was for an exception to company policy, and it was granted. Fourthly, there was no condition attached to the permission that Mr. Lemesani not work out-of-town or sell furniture.

[109] Andrew Christie explained his rationale for altering the commission structure in examination-in-chief. He testified that company policy did not allow an employee to take a three-week block of vacation until he had 15 years’ seniority and Mr. Lemesani was more junior. However, he wanted to help Lemesani realize his dream of owning property in Panama.

[110] He stated that Mr. Lemesani is a commissioned salesman; if he is not actively pursuing sales, they will diminish. He reasoned that sales would be slow in January, and if the plaintiff was away in February, he would be unlikely to meet his quarterly sales quota by March. From the company’s perspective, if the bonus structure were not altered, it would have to pay $3,000 per month (based on $40,000 in monthly sales) for three months in which there were no sales. However, if Mr. Lemesani did meet the sales target, the bonus would be paid at year-end.

[111] There is no suggestion that this adjustment to the payment of the bonus was intended to be permanent; rather, it appears to be an ad hoc response to the plaintiff’s request for an extended absence in the first quarter.

[112] Of course, Mr. Lemesani had the option of taking a shorter vacation, knowing that the bonus structure would be altered, but he did not do so. In my view, a reasonable objective bystander would not conclude that a poisoned workplace environment had been created by the employer’s alteration of the bonus structure in response to the employee’s request for an exception to company policy. If anything, the evidence supports the employer’s effort to accommodate Mr. Lemesani’s request for special consideration. This is not an incident of harassment.

Invoices

[113] During his employment, Mr. Lemesani ran an account with his employer and was invoiced monthly by the business office. He had an outstanding balance when he took a medical leave from work. In the ordinary course, the accounting office continued to invoice him. Mr. Lemesani regarded this monthly invoice as harassment. When Mr. Lemesani complained about this to Brian Christie, and pointed out that the defendant owed him money, the invoices stopped.

[114] In my view, a reasonable and objective bystander would not see monthly invoicing on an outstanding balance as harassment. Rather it is indicative of Mr. Lemesani’s sensitivity to conduct that others, who are more objective, would not see as a slight. When the complaint was made, it was promptly addressed.

[115] On the evidence, I find that there is no objective basis for Mr. Lemesani’s complaint about bullying and harassment. I also find that he made no complaint to Lowerys about bullying or harassment. I accept Andrew and Scott Christie’s evidence that the plaintiff never communicated directly with them about why he took a medical leave. Scott Christie indicated that he learned “via the grapevine” about a month after the plaintiff left work that he was on a stress leave.

[116] The evidence about whether the defendant had a policy about bullying and harassment in 2011 is equivocal. In cross-examination, Andrew Christie testified that a policy was implemented when the Occupational Health and Safety Act required it, but he did not know if it was in place in 2011. There is no other evidence on this point.

[117] Accordingly, the plaintiff’s case that he was constructively dismissed because of workplace harassment is not made out.

Termination of Benefits

[118] The second aspect of constructive dismissal alleged by the plaintiff relates to the defendant’s termination of his health benefits on June 30, 2013. He submits that the termination of these benefits without notice substantially altered and therefore breached his contract of employment.

[119] The plaintiff cites Briggs v. Treco Machine and Tool Ltd. at para. 4 in support of his argument that termination of an employee’s benefits constitutes constructive dismissal.

[120] The defendant takes the position that termination of the benefit plan did not alter an essential term of the employment contract. The defendant submits that, at its highest, the plaintiff was entitled to participate in any health plan that the company sponsored, not to receive benefits.

[121] The Briggs case was an undefended claim for wrongful dismissal. The decision does not discuss the terms of the employment contract relative to health benefits. The court simply notes that the plaintiff was delivered a notice that his company benefits were being terminated. Consequently, it is not persuasive.

[122] The terms of the defendant’s health and disability plan required the employee to pay 50% of the premium while the employer paid 50%. The plaintiff accessed long term disability under the plan from December 22, 2011 until the insurer terminated his benefits effective January 31, 2013 on the grounds that he was not totally disabled. His appeal was unsuccessful; the parties were notified of this fact in February, 2013.

[123] Mr. Lemesani accessed his dental coverage in May 2013, however, in mid-October when he tried to access his benefits, he learned that they were cut off effective June 25, 2013.

[124] Andrew Christie testified that Mr. Lemesani paid his share of the premium until he took a medical leave in August, 2011, and thereafter, Lowerys paid the entire premium. He stated that he was not aware that the defendant was paying the entire premium until the insurance agent brought it to his attention on June 30, 2013 when they were reviewing coverage.

[125] The insurance agent advised Mr. Christie that under the terms of the policy, the defendant could terminate the plaintiff’s coverage when he was not an active employee. Mr. Christie testified that he did not think he needed to warn the plaintiff of the termination when Mr. Lemesani was not paying his share of the premiums. The total amount of premiums the defendant paid on the plaintiff’s behalf was $2,578.26.

[126] Scott Christie’s evidence was to similar effect: that the Sun Life coverage could be cancelled after thirty days of non-employment. This evidence was not challenged in cross-examination.

[127] Was the plaintiff constructively dismissed when his benefits were cancelled?

[128] The employment contract makes scant reference to the defendant’s health plan. It simply states,

Health Plan – Company health benefits will not be available until after the 3 month probationary period.

[129] In my view, the employment contract does not guarantee medical coverage as a term of employment. It simply requires an employee to serve a three month probationary period before enrolling in the company’s health plan, whatever that is. It implies that the employer will maintain a group plan. However, the terms are not specified.

[130] Necessarily, an employee must comply with the terms of the policy in order to access coverage. In this case, the plan was structured so that the employee and the employer each paid half of the premium. During his medical leave, Mr. Lemesani did not do so. Nevertheless, the defendant carried his premiums for almost two years.

[131] The plan also requires an employee to be actively employed. Mr. Lemesani did not fulfill this requirement either. Consequently, the defendant was entitled, under the terms of the plan, to terminate his coverage. In my view, this did not amount to a substantial alteration of the employment contract as there was no guaranteed coverage under the plan. I conclude, therefore, that the plaintiff was not constructively dismissed on this ground.

Did the Plaintiff Abandon His Employment? Alternatively, was the Employment Contract Frustrated?

[132] The defendant contends that the plaintiff abandoned his employment contract or alternatively, that the contract was frustrated by his on-going disability. The plaintiff challenges both positions arguing that he was always willing to return to work and wanted to do so after the defendant addressed what he viewed as a poisoned work environment. Because the factual matrix dealing with these arguments is the same, I will consider the evidence bearing on these issues together.

[133] The defendant submits that the plaintiff abandoned his employment either as of June 30, 2013 or as of December 9, 2013. The plaintiff argues that the employer made no effort to contact him to determine his medical status, or his intentions to return to work.

[134] The parties agree that the test for abandonment is described in Betts v. IBM Canada Ltd., 2015 ONSC 5298 at para. 57 (aff’d by the Divisional Court in Betts v. IBM Canada Ltd., 2016 ONSC 2496). In Betts, the court held that the test for abandonment is objective: do the statements or actions of an employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

[135] At para. 60 of Betts, the court also determined that an employee need not state that he no longer intends to be bound by the contract of employment. The intention can be inferred from the facts if, when viewed objectively, they demonstrate that the employee no longer intended to be bound. For example, in Betts, the employee moved to another province. The court concluded that he abandoned his employment.

[136] In Lafond v. Belle River & District Community Council, the employee took a two month leave of absence for medical reasons, followed by a further one month extension. When he did not return after three months, the employer determined that the employee had resigned. The court held at para. 37 that there is an obligation on the employer to find out the employee’s intentions before concluding that he abandoned the contract or that the contract was frustrated. Failure to communicate with the employer is not an unequivocal indication that the employment has been abandoned.

[137] Frustration of contract occurs when a permanently disabled employee cannot return to work because the disability makes it impossible for the employee to perform the contract. In such circumstances, the onus is on the employer to prove that the contract was frustrated. If there is no reasonable likelihood at the time of termination that the employee will be able to return to work within a reasonable period of time, then frustration of contract applies. See: Nason v. Thunder Bay Orthopaedic Inc., 2015 ONSC 8097, 2015 CarswellOnt 19874, at para. 180.

[138] Put another way, frustration of contract may occur when the contractual obligation is incapable of being performed through no fault of the parties. If the inability to perform the contract continues into the foreseeable future, frustration is made out: Duong v. Linamar Corp., 2010 ONSC 3159 at paras 33 – 35.

[139] In Fraser v. UBS Global Asset Management, 2011 ONSC 5448, [2011] O.J. No. 6167, at paras. 28, 29, and 34, the court held that the plaintiff’s employment contract had been frustrated in circumstances where her illness and disability pre-dated the termination of her employment and the disability was permanent, such that she would never be able to return to work. In Fraser, the plaintiff had not worked for three and a half years.

[140] Each case turns on its facts.

[141] In addition to working for Lowerys, Mr. Lemesani had about three or four rental properties that he was managing at the time of his anxiety attack. He had started a popcorn business in April, 2011, working at about two functions a month that year. He and his girlfriend operated the popcorn business at fairs and parks from that time forward.

[142] The plaintiff testified that on August 19, 2011, he went to work in the morning and experienced symptoms that led him to believe he was having a heart attack. He sought medical attention and was diagnosed with acute stress. He took a couple of days off work and then consulted his family doctor, Dr. Mulligan on August 22, 2011. Dr. Mulligan gave him a note indicating that he would be off work indefinitely.

[143] The defendant prepared a record of employment and Mr. Lemesani applied for and received employment insurance benefits for the next three months. Scott Christie testified that Mr. Lemesani never mentioned why he needed time off work.

[144] The plaintiff testified that Andrew Christie came to his house on September 19, 2011 and presented him with a surveyor’s bill which had been directed to Lowerys but which was the responsibility of the plaintiff. Mr. Lemesani believed that Andrew accused him of dishonesty over charging the surveyor’s account to Lowerys. Mr. Lemesani stated that he gave Mr. Christie his doctor’s note and told him he would be off a couple more months.

[145] In December, Mr. Lemesani applied for long term disability benefits through the defendant’s disability insurer, Sun Life. The insurer granted the application and began paying benefits when his employment insurance ran out. He was under the care of his family doctor and a psychologist, Dr. Johnston. Later, he was referred to a psychiatrist, Dr. Stewart.

[146] On a couple of occasions, Mr. Lemesani had telephone contact with the defendant’s comptroller, Ms. Viik.

[147] Once Mr. Lemesani began to receive long term disability benefits, his medical status was reviewed periodically by Sun Life or its local agent. The information the defendant received about Mr. Lemesani’s condition and his readiness to return to work came from Sun Life and not from the plaintiff himself.

[148] In January, 2012, Mr. Lemesani reported to Sun Life that he was on medication for anxiety and depression and had engaged in three counselling sessions. He indicated that he hoped to return to work by the end of the year but was still having trouble coping emotionally. Lowerys confirmed with Sun Life on February 3, 2012 that once Mr. Lemesani was ready for a gradual return to work, to advise so that they would see if they could accommodate him. The defendant expressed a willingness to accommodate with modified hours and duties.

[149] In March, 2012, Sun Life followed up. Mr. Lemesani continued to experience anxiety and moodiness without an improvement. He continued to express a willingness to return to Lowerys or to a completely different occupation. However, in his testimony, he stated that he did not foresee working as a copier salesman full-time.

[150] Mr. Lemesani had a history of property renovation and management while he was employed at Lowerys. By May of 2012, Mr. Lemesani told Brian Christie that he was “doing a couple of houses.” I understand this to mean that he was building or renovating rental housing. During that season, Mr. Lemesani‘s properties were damaged by severe spring flooding. He continued to try to resolve damage claims with the city’s insurer well into the following year.

[151] On August 30, 2012, Sun Life confirmed with Lowerys that Mr. Lemesani’s job was still available.

[152] In October of 2012, Sun Life contacted Mr. Lemesani to determine his readiness to return to work. Sun Life advised him that his old job was filled but there was another position available. By this time, Sun Life had reviewed his medical information and determined that the plaintiff had demonstrated his ability to return to work because he was managing five rental homes and running a popcorn business, such that he was in the public and around crowds. It concluded that if his stress was workplace-related, he could work for another employer.

[153] Mr. Lemesani wanted to speak to his psychologist and psychiatrist about the matter. He stated that his doctor wrote a note that he was not ready to return to work and wanted more time. He testified that he wanted at least until June or maybe longer because he felt he was making progress. The disability insurer disagreed and after providing a three month discretionary payment, terminated his benefits.

[154] The plaintiff testified that the defendant made no offers to have him return to work in any capacity and did not advise him that there was a position available for him. His evidence is refuted by the documentary record.

[155] Exhibit 12 is a memo from Sun Life dated October, 24, 2012. It records that the defendant had a position available for Mr. Lemesani.

[156] Exhibit 22 is a clinical note from Dr. Stewart dated November 9, 2012. It records that Mr. Lemesani is distressed at Sun Life’s decision to discontinue his disability benefits since there is a job opening for him at Lowerys. It also indicated that the plaintiff was not ready to return to work. It is evident that the plaintiff was aware of the defendant’s job offer.

[157] Exhibit 27 is a clinical note from Dr. Stewart dated December 13, 2012. It states that Mr. Lemesani wants to get back to work but not at Lowerys and “not at this time.”

[158] Mr. Lemesani’s family physician, Dr. Mulligan wrote on January 24, 2013 to advise that the plaintiff could not work around other people because of his anxiety disorder and depression. He stated:

It is my opinion that he cannot return to work in his former job or related field and does require time for treatment and retraining.

[159] Mr. Lemesani appealed Sun Life’s decision; he was advised on February 27, 2013 that his appeal had been refused. Mr. Lemesani stated, “I was left to the wolves to fend for myself.”

[160] In March, 2013, Mr. Lemesani informed Sun Life that he could not work with other people. He indicated that he was still sick.

[161] Nevertheless, he continued with scaled-back medical treatment. He also stated, “I always assumed that Lowerys knew my medical status.” Mr. Lemesani did not say how they would know. He took no steps to forward medical information to the defendant. Once his long term disability coverage was terminated, no medical information was forwarded to the insurer either.

[162] The clinical note dated April 22, 2013 from Mr. Lemesani’s psychiatrist is instructive. He noted that the plaintiff was quite busy dealing with flood damage claims, and other matters, rarely used anti-anxiety medication, and did not complain of difficulties with concentration, attention or memory. However, Dr. Stewart noted that the plaintiff still considered himself unable to return to work because of the caustic atmosphere there.

[163] The plaintiff floated the idea of trying to get his disability benefits reinstated until Dr. Stewart commented:

…When I explained again that the report would have to include information which might dispute this such as the fact that he continues to run his own business, is able to organize and plan his daily functions fairly well, and describe symptoms [sic] are essentially well-managed with the combination of medication and ongoing psychotherapy.

[164] The note continues that Mr. Lemesani is planning to pursue some type of severance from Lowerys since he has not been formally terminated. He also noted that Mr. Lemesani intended to reduce the frequency of his visits both with his psychiatrist and his psychologist.

[165] The plaintiff never pursued Lowerys’ job offer in the fall of 2012. Nor did he indicate to the employer at any other time that he was ready to return to work, either as a salesman or in some other capacity. The sporadic contacts he made with Ms. Viik indicated that he was not yet ready to return to work. For example, in March of 2013, he spoke to her and told her that he was getting better but needed more time.

[166] When the plaintiff learned in October, 2013 that he no longer had health-care benefits through Lowerys, he called Ms. Viik to clarify his employment status. When she indicated that he was still employed, he asked to have his benefits reinstated.

[167] On November 5, 2013, Mr. Lemesani wrote a brief letter to Andrew Christie. The text of the letter read:

Will you please let me know the status of my employment with Lowerys.

I ask that you please reply by mail only, upon receipt of this letter. I look forward to a prompt reply.

[168] Mr. Christie replied on December 9, 2013. The letter said:

With respect to your correspondence of November 5, 2013, we confirm that on termination of your benefits on June 30, 2013, you failed to return to work, communicate your intentions, or take any steps whatsoever to resume employment. You have also failed to update us on your condition as required. You have accordingly abandoned your employment with Lowerys.

[169] In cross-examination, Mr. Lemesani agreed that he never communicated to Sun Life that he was ready to return to work at Lowerys because of what he viewed was a toxic work environment. He also conceded that during the two or three telephone conversations he had with Ms. Viik, he never told her that he was returning to work. Rather, the information conveyed to the defendant through Ms. Viik was that he could not return to work. At no time did he indicate to Sun Life or to the defendant that he wanted to be assigned a less stressful position upon returning to work.

[170] Although the plaintiff complained that he was hurt that the defendant had not inquired about his well-being, he admitted that he told Brian Christie that he did not want calls from Scott or Andrew Christie. The Christies understood that the plaintiff did not want to hear from them and respected his privacy. The plaintiff acknowledged that if they had contacted him, he would have told them he was not ready to return to work.

[171] Scott Christie testified and I find that Mr. Lemesani never communicated to him his desire to return to work.

[172] On July 8, 2015, after this litigation commenced, the plaintiff’s psychologist offered an opinion about Mr. Lemesani’s medical condition and his ability to return to work. He commented that Mr. Lemesani perceived his working environment as being poisoned, and that it would be difficult for him to change that perception. He offered this comment:

I believe that Mr. Lemesani could have returned to work at Lowerys although I doubt that it would have been either productive or long lived because of the apparent clash between Mr. Lemesani’s personality characteristics (views of himself, interpersonal style) and his perceptions of the people at Lowerys.

[173] The plaintiff’s anxiety about returning to work at Lowerys generalized to other employment settings, such that he believed he could only be self-employed. He stated that “if he was self-employed, he wouldn’t have an employer bitching at me.”

[174] During cross-examination he commented, “Even now if someone offered me a job, it would be difficult.” Mr. Lemesani was also asked, “Are you incapable of returning to Lowerys or to any other employer as of this day?” Mr. Lemesani answered, “Yes”.

[175] Mr. Lemesani had an entrenched belief that Lowerys was a poisoned workplace to which he could not return until the defendant made changes. He maintained that the defendant was aware of what it had to change, but conceded that he never told the defendant his conditions for returning to work or what he expected Lowerys to change.

[176] In my view, there are indications in the evidence that Mr. Lemesani had given up any intention of returning to Lowerys. For example, he mused with his psychiatrist about obtaining severance from the defendant. He gave no response to an offer of employment relayed by Sun Life. He never communicated that he wanted to return to work, with or without accommodations.

[177] However, apart from the plaintiff’s continuing absence, there is no indication that Lowerys were aware of these indicators. In other words, there is no evidence that the plaintiff communicated to Lowerys clearly and unequivocally that he no longer intended to work for the defendant. In fact, the contrary might be inferred from his request to have his medical coverage reinstated and his correspondence seeking clarification of his employment status. Therefore, I do not conclude that the statements or actions of the plaintiff, viewed objectively by a reasonable person clearly and unequivocally indicate an intention no longer to be bound by the employment contract.

[178] Alternatively, was the contract frustrated? The onus is on the employer to prove frustration. In my view, the defendant has done so.

[179] The plaintiff submits that since the employer did not inquire about his intentions, the contract was not frustrated.

[180] I do not agree. In my view, the defendant is entitled to rely on periodic reports from the disability insurer as to the employee’s progress and his response to its offer to return to work. It is also entitled to rely on information conveyed by the plaintiff to the defendant’s comptroller that he is not ready to return to work.

[181] The plaintiff advised the defendant that he did not want contact from the managers, who respected his wish for privacy. It does not now lie in his mouth to complain that they did not contact him to ascertain his intentions.

[182] I conclude that the employment contract between the parties was frustrated as of June 30, 2013.

[183] As recently as the trial, Mr. Lemesani confirmed that he was incapable of returning to Lowerys. His statement exemplifies the definition of frustration of contract: Mr. Lemesani cannot return to work because his condition makes it impossible for him to perform the contract. Even his psychologist opined that, should he return to work, it would not have been “productive or long-lived” because of the plaintiff’s personality factors. At the time of termination, there was no reasonable likelihood that Mr. Lemesani would return to work within a reasonable time.

[184] The claim for wrongful dismissal is therefore dismissed.

Accommodation

[185] Section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 prohibits discrimination in employment on account of disability. Section 5(2) of the Act provides that employees are entitled to be free of harassment in the workplace because of disability (or other grounds), whether by the employer, agent of the employer, or others.

[186] Under s. 17 (2) of the Act, and at common law, the employer has a duty to accommodate an employee who is disabled unless that accommodation causes undue hardship on the employer, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. However, s. 17(1) of the Act provides that discrimination in employment on grounds of disability is not made out if the person is “incapable of performing or fulfilling the essential duties or requirements of the employment because of the disability.

[187] In dealing with the duty to accommodate a physical disability, the Ontario Human Rights Tribunal concluded at paras. 91 and 92 of Tanimowo-Reyes v. T.D. Insurance, 2012 HRTO 1427 that the duty to accommodate is triggered when the employee informs the employer of her disability-related needs. Specifically, the employer must be told about how the employee’s disability-related needs and effects of her condition and how these interact with the workplace duties and environment. See also: Brosseau v. Hamilton-Wentworth District School Board, 2013 HRTO 1905, at para. 27.

[188] In this case, the duty to accommodate is not engaged because Mr. Lemesani never communicated a desire to return to work, let alone a wish to be accommodated. In any event, the defendant was willing to accommodate him if he returned to work.

[189] The claim for damages under the Ontario Human Rights Code is dismissed.

Damages

[190] The court is obliged to assess damages when an individual is dismissed without cause or reasonable notice. Even if the plaintiff’s claim is dismissed, damages are to be assessed.

[191] In a case called Bardal v. Globe and Mail Ltd., [1960] O.J. No. 149, 24 D.L.R. (2d) 140, (H.C.J.), Chief Justice McRurer developed principles for assessing damages in wrongful dismissal cases which have been widely applied. These principles, called the Bardal factors, were discussed by the Supreme Court of Canada in Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362, [2008] S.C.J. No. 40.

[192] The Court of Appeal referred to the Bardal factors at para. 38 of Strudwick v. Applied Consumer and Clinical Evaluations Inc., 2016 ONCA 520 as follows:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant, and the availability of similar employment, having regard to experience, training and qualifications of the servant.

[193] At paras. 38 – 42 of Strudwick, the court clarified the application of the Bardal factors:

(a) No one Bardal factor should be given disproportionate weight; (b) The period of notice is determined by a fact-specific and contextual approach, limited by a range of reasonableness; (c) There is no upper limit on notice periods; (d) Courts should strive to ensure that notice periods are consistent with the case law, and; (e) A base notice period in excess of 24 months will only be supported in exceptional circumstances.

[194] The plaintiff relies on Lafond v. Belle River & District Community Council at para. 6 for the proposition that reasonable notice must also be given when an employee is disabled.

[195] As to the range of damages, the plaintiff seeks damages of 20 months as upheld on appeal in Strudwick. In that case, the employee was harassed in the workplace when she suffered from deafness, leading to her constructive dismissal. She was 56 at the time of dismissal and earned $12.85 per hour, mainly as a data entry clerk.

[196] Mr. Lemesani also relies on Clark v. BMO Nesbitt Burns Inc., 2008 ONCA 663 at para. 28. In that case, the plaintiff had worked for the employer as an investment advisor for 17 years. He was terminated at 52 years of age. When he was unable to find work following termination, he started his own business. This was held to be a reasonable effort to mitigate damages. His damages were assessed at 18 months’ pay in lieu of notice.

[197] The plaintiff cites Rinaldo at paras 125 – 126. In that case, the plaintiff was awarded 16 months’ pay in lieu of notice. He was 39 when terminated and had worked for the employer for 15 years, mainly as a manager. At the time of trial, he was having difficulties returning to the work force due to mental distress.

[198] The plaintiff submits that he should receive twenty months’ salary in lieu of reasonable notice, based on his last full year of service with the defendant in 2010. This amounts to $47,026/12 months times 20 months = $78,376.60. He argues that at the time of dismissal, he was 49 years old, had 17 years of service with Lowerys (15 years of active service), was a senior sales representative, suffered from a disability at the time of dismissal, and had a highly specialized degree of training and expertise related to a very specific product, photocopiers.

[199] The defendant submits that the plaintiff’s income should be averaged over five years (2006 – 2010) to achieve a base amount of $45,349.80 for purposes of notice. I do not agree. By averaging Mr. Lemesani’s income, the employer fails to recognize the plaintiff’s actual sales performance at the time he stopped working for the defendant.

[200] The defendant submits that seven months’ pay in lieu of notice is appropriate based on Rochette v. Office Equipment of Canada Inc.. In that case, the plaintiff was a copier sales person with nine years of service. He was dismissed for cause after the defendant became aware that he had forged customers’ signatures on certain contracts. Consequently, his claim for wrongful dismissal was dismissed.

[201] In assessing damages, the court considered Mr. Rochette’s position as a commercial salesman; the fact that he obtained a new position shortly after his termination; his age, 31, at dismissal; and the fact that he had no supervisory position or responsibility. The court held that damages would be reduced by income earned during this period of time.

[202] I am not persuaded that notice in the range set out in Clark is appropriate in this case. In Clark, the plaintiff was charged with a criminal offence that prompted the employer to fire him despite the fact that he was presumed innocent at law. He was unable to find alternate employment when he disclosed the fact of the pending criminal charge. He suffered additional damages because of the manner of his termination and the purchase of his book of business by the bank at under value.

[203] In this case, Mr. Lemesani initiated his leave of absence from work with a medical leave. He is younger than Mr. Clark and his earnings are 50% less. There is no evidence that he attempted to re-enter business as a salesman.

[204] In Rinaldo, the plaintiff had a managerial position. After complaints about his work, he was placed on a period of probation with the prospect of dismissal and a severance package if the term of probation was not satisfactory. Shortly after the term of probation was announced, the plaintiff took a medical leave at the recommendation of his psychiatrist. Initially, the employer believed that the period of disability was a means to circumvent the probationary period. Later, the employer took the position that the leave of absence on short-term disability was acceptable until a fixed date, following which the employer terminated the plaintiff. The court held that because of the employer’s refusal to recognize the plaintiff’s sick leave, the plaintiff could not have been reasonably expected to return to work.

[205] In this case, the defendant did not object to Mr. Lemesani’s leave of absence. There is no objective basis for his allegation of a poisoned work environment. He was offered an opportunity to return to work but declined.

[206] Mr. Lemesani was 49 years old when his employment was terminated, having actively worked in the company for fifteen years. He took over from a retiring employee, assuming that employee’s clientele.

[207] Mr. Lemesani completed high school and took some university courses before working for the defendant. I infer that he learned about sales and in particular, copier sales, while in the defendant’s employ. He did not have a management role and was not involved in supervisory responsibilities although he did mentor new staff. The defendant regarded him as a capable salesman, a skill that translates to other sales environments.

[208] After he took a leave of absence from the defendant, he continued property management and began a popcorn business. He contends that, because of his emotional state, he is not able to work in a setting with other people, where he must answer to others. However, there is no evidence that he attempted a return to work, either with the defendant, or with another employer.

[209] An employee is obliged to mitigate his losses. If the employee claims that he cannot mitigate because of a medical condition, medical evidence must be called to establish that fact (See: Sinnathamby v. Chesterfield Shop Ltd., 2016 ONSC 6966 at paras. 118 – 122).

[210] Mr. Lemesani submits that he made reasonable efforts to mitigate his losses by starting a popcorn company and managing rental units. He submits that the court should deduct half of his earnings in mitigation from the notice period. No authority was advanced for this submission. The earnings set out below are attributed solely to him on his income tax summaries.

[211] In my view, the appropriate notice is 10 months less the income earned in mitigation of loss. His monthly income from self-employment in 2013 was $122.50 per month; for 2014, $604.25 per month.

Punitive and Aggravated Damages

[212] The plaintiff claims $60,000 in punitive damages on the grounds that he experienced bullying and harassing conduct over a period of one year which the defendant ignored. He also claims that Lowerys failed to have in place a policy about workplace bullying and harassment as it was obliged to do under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[213] As the plaintiff’s claim has been dismissed, his claim for punitive and aggravated damages also fails. However, as I have assessed general damages, I offer the following observations about these further claims.

[214] In Keays at para 62, the court made a distinction between damages for wrongful dismissal and punitive damages. It observed:

Damages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own.

[215] Firstly, I have concluded that there was no objective basis for Mr. Lemesani’s complaint about bullying and harassment. I have also determined that he made no complaint to Lowerys about bullying or harassment. I accept Andrew Christie’s evidence and Scott Christie’s evidence that the plaintiff never communicated directly with them about why he took a medical leave. Scott Christie indicated that he learned “via the grapevine” about a month after the plaintiff left work that he was on a stress leave.

[216] Secondly, as I have said, the evidence about whether the defendant had a policy about bullying and harassment in 2011 is equivocal.

[217] The plaintiff also claims aggravated damages in the amount of $60,000. In Keays, the Supreme Court held that aggravated damages were applicable in cases in which an egregious display of bad faith occurred in the dismissal.

[218] In Strudwick, at paras. 101 – 103, the Court of Appeal awarded the plaintiff aggravated damages for the abusive manner of the employer’s conduct at and after her dismissal. This included being confronted and yelled demeaning names in front of at least 13 other employees, being advised of her termination for a senseless reason, being presented with paperwork designed to deprive her of her legal rights; tendering a record of employment that delayed her claim for employment insurance; and refusing to pay wages owed. The cumulative effect of this conduct was to cause the plaintiff psychological harm. The plaintiff was awarded $70,000 in aggravated damages less “Wallace damages.”

[219] No such egregious conduct has been proven in this case. The employer continued to pay health benefits for Mr. Lemesani for many months after he ceased active employment. The manner of his termination was discreet. He was not embarrassed in front of others. There is no evidence that he suffered harm as a result of it.

Costs

[220] If the parties cannot agree on costs, either party may apply to the trial coordinator within thirty days for an appointment to argue same. Costs briefs are not to exceed five pages exclusive of offers to settle, dockets, or disbursements.

The Hon. Madam Justice H.M. Pierce

Released: March 20, 2017

COURT FILE NO.: CV-14-0109 DATE: 2017-03-20

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Michael Lemesani, Plaintiff

• and - Lowerys Inc., Defendant

REASONS FOR JUDGMENT Pierce J.

Released: March 20, 2017

/lvp