Court of Appeal for Ontario

Date: September 27, 2018 Docket: C63844

Pepall, Roberts and Miller JJ.A.

Between

Dr. Amir Gholami Plaintiff (Appellant/Respondent by way of cross-appeal)

and

The Hospital for Sick Children, Dr. Bruce Macpherson, and Dr. Mark Crawford Defendants (Respondents/Appellants by way of cross-appeal)

Counsel:

• Chris Foulon and Behzad Hassibi, for the appellant/respondent by way of cross-appeal
• Robert Weir and Bethan Dinning, for the respondents/appellants by way of cross-appeal

Heard: April 12, 2018

On appeal from: The judgment of Justice Andra Pollak of the Superior Court of Justice, dated May 2, 2017, with reasons reported at 2017 ONSC 1200, and the costs endorsement, dated June 14, 2017.

By the Court:

A. Overview

[1] The appellant appeals from the dismissal of his claims for damages for wrongful dismissal, bad faith conduct of his employer in the manner of dismissal, and defamation. The respondents cross-appeal, asking for damages to be quantified and ordered if the appellant is successful. The appellant also appeals from the costs award of $137,250.

[2] The appellant claims that his employment with the Hospital for Sick Children ("HSC") was wrongfully terminated and his professional reputation and career as a specialist in pediatric cardiac anesthesiology in Canada and the United States were destroyed by the actions of the respondents.

[3] The main issues on appeal are whether the trial judge erred in concluding that the appellant was not wrongfully dismissed and whether she failed to provide adequate reasons with respect to issues of credibility.

[4] We conclude that the appellant was wrongfully dismissed from his position at HSC, but for the reasons that follow, we are unable to determine the damages to which he is entitled. We also conclude that the trial judge erred in her treatment of the issues of bad faith conduct in the manner of dismissal and defamation, and we return those issues and the quantification of damages to a judge of the Superior Court for a trial of these issues. Although we regret the need to order a further proceeding in this action, we are compelled to reach that conclusion due to the inadequacy of the trial judge's reasons.

B. Factual Background

[5] From October 4, 2010 to June 8, 2011, the appellant was employed by HSC as an associate physician in the Department of Anesthesia and Pain Medicine ("the Department"), under a fixed-term, one-year contract. The contract was subject to renewal on the successful completion of various conditions.

[6] The contract with HSC was part of the Pathway 4 licensing process, prescribed by the College of Physicians and Surgeons of Ontario (the "CPSO"), by which the appellant, a Canadian citizen licensed to practise medicine in the United States, sought to qualify to practise medicine in Canada. The contract with HSC was conditional on the appellant's compliance with and successful completion of the requirements under the Pathway 4 program.

[7] Pathway 4 allows US board-certified physicians to work in Ontario under a limited licence as a means to obtain full licensing in the province. Physicians who apply for registration in Ontario under a Pathway 4 Certificate of Registration are granted a conditional licence to practise. They must complete a one-year period of supervision and are assigned a supervisor from their workplace. At the end of the year, they must pass a Practice Ready Assessment conducted by the CPSO.

[8] By letter dated June 15, 2010, the appellant was offered an appointment in the Department. For the first year, he would be considered an associate staff member. His re-appointment beyond one year was contingent upon successful completion of the first year of clinical work, a Practice Ready Assessment, compliance with the policies and procedures of the CPSO, and his enrollment in a Masters training program in clinical epidemiology.

[9] The appellant aspired to specialize in pediatric cardiac anesthesiology. The offer letter provided that he would work in the Department, but that "[e]very effort will be made to integrate you into our sub-group of cardiac anesthesiologists."

[10] The offer was contingent upon the appellant obtaining a Certificate of Registration from the CPSO. In support of the appellant's CPSO application, the Associate Chief of the Department, the respondent, Dr. Bruce Macpherson, wrote on July 2, 2010: "Dr. Gholami is a skilled anesthesiologist" whose references "attest to his strong teaching abilities, clinical skills and superb interpersonal abilities."

[11] On October 1, 2010, the CPSO issued a restricted Certificate of Registration to the appellant. He was required to practice under supervision, which was coordinated by Dr. Macpherson. The Certificate stated that it automatically expired on the happening of certain events, including: the supervisor notifying the CPSO of any concerns regarding the appellant's knowledge, skill, judgment or attitude; the supervisor not providing the required reports, or if those reports were unsatisfactory in form or content; the supervisor being unable or unwilling to continue to supervise the appellant's practice; or if the CPSO found the assessment report unsatisfactory.

[12] Dr. Macpherson gave certain undertakings to the CPSO, including that he would provide the CPSO every six months with a report on the appellant's performance, and immediately advise the CPSO of any serious issues. The appellant understood that if Dr. Macpherson withdrew as his supervisor for any reason, his conditional licence to practise would automatically expire and his employment would come to an immediate end.

[13] From October 2010 to January 2011, the appellant worked in other areas in the Department. He worked from January to early April 2011 on cardiac cases under a preceptorship, where he was paired with various members of the cardiac team who assisted and familiarized the appellant with the room set-up, charting and specifics of cardiac surgery at HSC. During the month of May, the appellant pursued research studies and focused on transfusion cases outside of HSC, except when he returned on one or two occasions when on call.

[14] Up until about the middle of May, the appellant was advised that there were no serious concerns with his clinical performance, although there were some ongoing issues about his fit within the cardiac team.

[15] In his April 5, 2011 report, which mistakenly was not sent to the CPSO, Dr. Macpherson wrote that the appellant's "clinical performance has been more than adequate" and that he "is settling in nicely". Dr. Macpherson noted "very complimentary" unsolicited comments "with respect to his clinical performance as well as his inter professional interactions", and that, according to his own direct observation, he found him "to be technically sound, with a good knowledge base and a solid overall clinical performance".

[16] The only comment in Dr. Macpherson's report that was less than positive related to the appellant's interaction with the Operating Room ("OR") team, which Dr. Macpherson wrote was "OK". However, Dr. Macpherson qualified this by stating that after talking to the appellant about his "slightly more aggressive interactive approach to dealing with allied health care workers", he noticed "a softening of what was occasionally perceived by some as a slightly abrupt approach". Dr. Macpherson concluded that he did not see this as a major issue and that he had no concerns about the appellant's clinical performance, knowledge base, skill, judgment or attitude.

[17] Some members of the cardiac team were highly supportive of the appellant. There were, however, personality conflicts between the appellant and other members of the team. The appellant felt he was being unfairly micromanaged; the members of the cardiac team with whom he clashed (including the chair of the cardiac team, Dr. Helen Holtby) believed he was not amenable to instruction. As a result, on May 12, 2011, the Chief of the Department, the respondent, Dr. Mark Crawford, advised the appellant that he should work in a different area within the Department rather than on cardiac cases. Although the appellant maintained his preference for cardiac cases, he said he would think about it.

[18] Matters came to a head after a meeting on May 16, 2011, between the appellant and Dr. Crawford, during which the appellant repeated his desire to work on cardiac cases. He also allegedly advised Dr. Crawford that members of the cardiac department, including Dr. Macpherson, were jealous of and disloyal to Dr. Crawford. When Dr. Crawford shared this information with Dr. Macpherson on May 17, the latter determined that he could no longer act as the appellant's supervisor.

[19] In the meantime, and undisclosed to the appellant, Dr. Crawford had been making inquiries of staff members, who had worked with the appellant in the OR, about the appellant's clinical performance and personal interactions. On May 25, 2011, Dr. Bruce Dodgson, one of the most senior cardiac anesthesiologists in the Department, provided his comments and highlighted an intubation error and two drug errors which had occurred "earlier in the period when [the appellant] was being initiated into the cardiac anesthesia programme". In her letter dated May 30, 2011, Dr. Holtby wrote about her impression during the first three to four months of 2011. She felt that the appellant's deficiencies in clinical skills, although relatively minor, meant he was not ready to take calls unsupported. She concluded that he was incapable of recognizing and taking responsibility for his own errors. She also commented on his abrasiveness and lack of collegiality.

[20] The appellant was unaware of Dr. Macpherson's decision to withdraw as his supervisor. At the first of three meetings with Dr. Crawford on May 30, 2011, the appellant asked again to work on cardiac cases, but Dr. Crawford maintained that he should work elsewhere in the Department. Later that day, the appellant advised Dr. Crawford that he had decided to seek employment outside of HSC and asked for his support. Dr. Crawford indicated that he had his full support. The appellant also advised that he wanted to work on cardiac cases until his departure, to which Dr. Crawford said they would have to see, pending the outcome of a departmental meeting to be held on June 15, 2011.

[21] Later that same day, at the last of their meetings, the appellant was reprimanded by Dr. Crawford for the appellant's treatment of Dr. Crawford's assistant, to whom the appellant had already apologized for his abruptness.

[22] Still on the same day, following the reprimand, the appellant sent a strongly-worded email to Dr. Crawford in which the appellant stated his concern that "there is a move underway in the department to make my continued employment here untenable". He went on to accuse Dr. Crawford and other members of the Department of unfair, discriminatory, misleading and professionally damaging treatment.

[23] The appellant nonetheless expressed the desire to come to a resolution "in a cooperative and rational way, that promotes goodwill and a balanced outcome wherein both the department and I maintain the benefits that can accrue from cooperation in good faith". Failing such a resolution, the appellant wrote that the outcome would be "acrimonious", and that the result "may end up damaging more than fixing any presently existing problems and concerns on both sides." The appellant wrote that he was prepared to take "all the actions available" to preserve his professional security and well-being. Not having received any response, the appellant sent a follow-up email on June 3, 2011.

[24] Unbeknownst to the appellant, on June 1, 2011, Dr. Crawford wrote to Dr. James Wright, VP Medicine and Surgeon-in-Chief of HSC, about Dr. Macpherson's decision to step down as the appellant's supervisor. He also indicated the advisability of the appellant immediately leaving HSC because of his "ruthless attempts to undermine relations and incite discord". Dr. Wright agreed with Dr. Crawford's recommendation and sought to review Dr. Macpherson's cover letter and report to the CPSO "given the great potential for legal action arising from this situation and having been involved in many similar situations". Dr. Wright instructed Dr. Macpherson to include in his report the various issues raised about the appellant's clinical performance and personal interactions, including the earlier drug errors.

[25] As a result, on June 8, 2011, Dr. Macpherson sent a report to the CPSO advising that he could no longer act as the appellant's supervisor, stating that the appellant had clinical performance and personal interaction issues. Dr. Macpherson listed the two drug errors and other incidents, all but one of which had occurred before but were not included in the earlier April 5th report that he had intended to send to the CPSO. Dr. Macpherson concluded his report with the following negative summary:

In summary, Dr. Gholami has had concerns raised about his clinical performance by senior members of the cardiac anesthesia team. His interactions with other staff and allied health care workers have consistently been described as aggressive, hostile and unprofessional. His recent outburst towards our administrative staff member seems to be typical of his behavioural profile. His recent attempts to undermine my professional relationship with Dr. Crawford, [are] contrary to the culture and values we abide by at The Hospital for Sick Children. For the above stated reasons, I wish to resign as Dr. Amir Gholami's supervisor in the Department of Anesthesia at The Hospital for Sick Children.

[26] On June 8, 2011, Drs. Crawford and Macpherson advised the appellant by letter and in a meeting that as Dr. Macpherson had resigned as his supervisor, his Pathway 4 Certificate would expire and he could no longer practise at HSC. The appellant was given a copy of Dr. Macpherson's June 8th report to the CPSO. The appellant was then walked to his locker to collect his belongings and escorted off the premises.

[27] On June 9, 2011, the CPSO advised the appellant that his Certificate automatically expired on the withdrawal of his supervisor.

[28] By letter dated June 10, 2011, Dr. Wright advised the appellant that his Certificate had expired and that he no longer fulfilled the conditions for his appointment and could no longer exercise any privileges, including the delivery of clinical services at HSC.

[29] By letter dated June 28, 2011, the Chair of the Registration Committee of the CPSO advised the appellant that his conditional licence had expired because of the withdrawal of his supervisor and the issues with his performance. The Chair also wrote: "The Registration Committee advises you that it is very concerned with the information provided by Dr. Macpherson".

[30] On June 28, 2011, the Chair requested additional information from Dr. Macpherson because of the CPSO's concern about the issues raised regarding the appellant's clinical performance. Dr. Macpherson provided further information to the CPSO by letter dated July 15, 2011.

[31] On July 22, 2011, the appellant's counsel offered that the appellant would return to work at HSC to complete his Pathway 4 process to mitigate his damages. No response was provided.

[32] The appellant sought and obtained employment in July 2011 as an anesthesiologist in the United States. Dr. Crawford and others from HSC sent very positive letters of reference on his behalf.

[33] On July 25, 2012, the appellant commenced an action against the respondents, alleging that he was wrongfully dismissed and that he had suffered enormous damage to his reputation and his career prospects because of the respondents' wrongful actions, which he alleged were in breach of their contractual duty of good faith. He sought damages for unlawful interference with economic relations, inducing breach of contract, civil conspiracy, misfeasance in public office, defamation, and negligent and/or intentional misrepresentations. He also sought damages for mental distress, arising out of the alleged bad faith manner of his dismissal, and punitive damages.

[34] At the commencement of trial, the respondents withdrew their allegation of just cause for dismissal but denied that the appellant was entitled to any damages, contending that he had caused his own damages by refusing to accept assignments in other areas of the Department in accordance with the terms of his employment contract. They claimed that they acted reasonably, honestly and in good faith in accordance with their duties to HSC and their obligations under the Pathway 4 process.

C. The Trial Judge's Reasons

[35] The trial judge dismissed the action. She found that the contract between the appellant and HSC did not guarantee the appellant that he would work on cardiac cases; it provided that he would work as an associate in the anaesthesiology department. She stated, at para. 41:

It was also apparent from Dr. Gholami's evidence that he thought that the emphasis Sick Kids placed on his ability to "integrate into the cardiac group" was unreasonable and unnecessary. Unfortunately, this belief and attitude influenced Dr. Gholami's decision to refuse the offer made by Drs. Crawford and Macpherson at the May 21 meeting. It is apparent from the evidence that if Dr. Gholami had accepted this offer, Dr. Macpherson would not have felt that he was forced to resign as Dr. Gholami's supervisor and that if necessary another more appropriate supervisor could have been found to replace Dr. Macpherson.

[36] The trial judge did not characterize the nature of the appellant's termination as a wrongful dismissal from employment, nor did she make a finding that HSC terminated the employment contract. Rather, she found no breach by HSC of the agreement. She noted that when integration into the cardiac group proved impossible, he could still work in the Department, as required by the agreement. The appellant's own actions had "destroyed any prospect of building or re-building cohesive, collaborative, and/or productive relationships with his colleagues", and that, in the circumstances, HSC had no obligation to find the appellant another supervisor. She determined that all the negative effects complained of by the appellant could have been either entirely avoided or greatly mitigated if the appellant had accepted HSC's May 2011 offer to work in another group within the Department. She made a further finding at para. 52:

I further find that Sick Kids did not breach its Agreement with Dr. Gholami as the Agreement could not be continued because Dr. Gholami lost his Certificate. On the basis of the evidence, it is my view that Sick Kids acted reasonably in the circumstances and did make reasonable attempts to assist Dr. Gholami and to mitigate his damages. Unfortunately, these attempts by Sick Kids were rejected by Dr. Gholami.

[37] She rejected the claim of bad faith and intentional harm on the part of the respondents, stating, at para. 45:

…I agree with the submissions of Sick Kids that there could not have been and should not have been a guarantee that Dr. Gholami be assigned to cardiac cases. There was extensive evidence with respect to the high standards and high quality of work performed by the Sick Kids cardiac group in very stressful cases. I cannot find any evidence of bad faith on the part of any of the Defendants. Rather, I find that having regard to the work performed by Sick Kids, they acted reasonably in insisting that Dr. Gholami be properly able to integrate into the cardiac group and that they did make every effort to integrate him into the group. Further, when such integration was not possible, they advised him he could still work as an associate in the anaesthesiology department, which was required by the Agreement.

[38] With respect to the defamation claim, the trial judge observed that the individual respondents had testified that their communications with the CPSO were truthful and professional and that they claimed the communications were protected by qualified privilege. She further noted, at para. 26, that they had also submitted that their comments to the CPSO were "expressions of opinion, and were fair comment, based on facts, which were true in substance, made in good faith and without malice." The trial judge accepted and agreed with these arguments.

[39] The only explicit reference to the issues and evidence in respect of the appellant's claim alleging mental distress appears at para. 18 of the trial judge's reasons under the heading of "Dr. Gholami's Pleadings":

Dr. Gholami pleads that he suffered mental distress as a result of the actions of the Defendants. Dr. Gholami testified that he was not able to sleep, and suffered migraine headaches as a result of the severe stress and anxiety. There is no medical evidence to support this claim. He claims that he is therefore also entitled to moral damages against Sick Kids in the amount of $500,000.

[40] Having found no breach, the trial judge did not address this issue further, nor did she quantify the damages.

D. Issues

[41] At the hearing before this court, the appellant pursued the following interrelated arguments:

(i) The trial judge erred in finding that the appellant was not wrongfully dismissed.

(ii) The trial judge erred in failing to assess the conflicting evidence regarding the renewal of the appellant's contract.

(iii) The trial judge erred in failing to find that the respondents acted in bad faith and in failing to address the manner of dismissal and mental distress suffered by the appellant.

(iv) The trial judge erred in failing to address defamation.

[42] The respondents cross-appeal asking that, if the appellant is successful, damages be quantified and ordered.

E. Analysis

(1) The Trial Judge Erred in Finding That the Appellant Was Not Wrongfully Dismissed

[43] In our view, the trial judge erred in concluding that the appellant was not wrongfully dismissed. The trial judge was required to address the legal issue of wrongful dismissal as it had been pleaded and presented at trial. HSC defended this action by pleading that it had just cause to terminate the appellant's employment. At the outset of trial, HSC withdrew its allegation of just cause and contended that the appellant was entitled to damages in the range of three to six months, subject to an argument that he had failed to properly mitigate. Accordingly, given HSC's concession that it terminated the appellant's employment without just cause and without notice or pay in lieu of notice, it was not open to the trial judge to find that HSC had not breached the employment agreement. In light of these concessions and the pleadings, the only conclusion open to the trial judge was that HSC had wrongfully terminated the appellant's employment.

[44] Moreover, the legal basis for the trial judge's conclusion that HSC did not breach the contract is unclear. She appears to have accepted the respondents' submission at trial that the appellant unreasonably refused their suggestion that he work in another area of the Department, prior to the termination of his employment by drawing an analogy to the principle that an employee has an obligation to mitigate his damages after termination. In other words, the appellant was the author of his own misfortune.

[45] If this were so, the trial judge erred. A failure to mitigate cannot flow from the appellant's refusal to accept work in non-cardiac cases prior to the termination of his employment.

[46] We also note that the trial judge made reference, at para. 52 of her reasons, to the fact that the agreement could not be continued because the appellant lost his Certificate. Where a licence is a fundamental work requirement, a licence revocation or the inability to obtain a licence may constitute an event of frustration entitling the employer to terminate the employment: Thomas v. Lafleche Union Hospital (1989), 82 Sask. R. 70 (Q.B.), aff'd (1991), 93 Sask. R. 150 (C.A.) and Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357, [2012] C.L.L.C. 210-010.

[47] However, in this case, the Fresh as Amended Statement of Defence does not allege that the employment agreement was frustrated when the CPSO revoked the appellant's Certificate. Moreover, the respondents acknowledged in their factum that the legal principle of frustration was not pleaded.

[48] In consequence, in light of the way this case was framed, the only relevant issues regarding the wrongful dismissal claim for the trial judge's determination should have been: (1) the damages that flowed from the dismissal; (2) whether the appellant had an obligation to mitigate his damages under his fixed-term contract by finding comparable employment following the termination of his employment; (3) whether the respondents acted in bad faith in the manner of the appellant's dismissal of employment; and (4) whether the appellant suffered any damages as a result of any bad faith conduct.

(2) Quantification of the Wrongful Dismissal Damages and the Renewal of the Contract

[49] The trial judge did not assess the appellant's damages in relation to his claims for wrongful dismissal. The respondents in their cross-appeal submit that if the appeal is allowed, this court should quantify the appellant's damages, subject to a deduction for monies earned in mitigation.

[50] We agree that the trial record permits us to determine the period for which those damages are payable.

[51] The trial judge found that the appellant and HSC entered into a contract that "was effective for a one-year term". While not stated by the trial judge in her reasons, there is no dispute that this contract was for a fixed term, subject to renewal if certain conditions were met, specifically, the appellant's successful completion of the year in the Pathway 4 program. The respondents abandoned their defence of just cause for dismissal and therefore the trial judge was required to consider whether any damages flowed from the dismissal. This in turn required a consideration of whether, prior to the dismissal, the contract had been renewed.

[52] In reviewing the respondents' pleadings and evidence, the trial judge referred to the renewal issue at para. 24:

The Defendants also testified that no misrepresentations were made to Dr. Gholami. He knew the conditions of his Certificate and he knew the conditions of his Agreement with Sick Kids. They testified that he was not given any assurances of long-term, secure or stable work at Sick Kids and they did not induce him to work at Sick Kids. Further, they denied that he was encouraged to buy a house in Toronto. I accept their evidence on this point.

[53] The evidence regarding the parties' respective versions of what occurred with respect to any renewal differed. The appellant submits that the trial judge was required to confront these inconsistencies.

[54] The appellant testified that Dr. Crawford confirmed his contract would be renewed in response to an inquiry made on or about April 12, 2011. The appellant maintained that he purchased a house in Toronto on the strength of Dr. Crawford's assurance.

[55] In addition, Drs. Crawford and Macpherson in May 2011 indicated that the appellant should consider working elsewhere in the Department and that his return to cardiac would be revisited in "a year or two".

[56] Contrary to the appellant's evidence, Dr. Crawford testified that, while he provided suggestions to the appellant on various neighbourhoods, the decision to buy a house was the appellant's alone. He denied that he had renewed the appellant's contract because he had no authority to do so at that point when the contractual conditions of a successful first year and the CPSO's Practice Ready Assessment had not been completed.

[57] The appellant acknowledged that Dr. Crawford could not waive those conditions. Dr. Macpherson testified that the Practice Ready Assessment involved an independent external review by the CPSO and was not merely a formality.

[58] Although there was a conflict in the evidence, nothing turns on this. The renewal was conditional on a satisfactory assessment by the CPSO. Moreover, even if Dr. Crawford made the alleged statement, he had no authority to renew the appellant's contract before the end of the supervisory period and the completion of a successful Practice Ready Assessment by the CPSO. As a result, in these circumstances, there could be no early renewal of the appellant's contract by Dr. Crawford. Accordingly, the appellant's wrongful dismissal damages should be assessed only to October 4, 2011, the end of the fixed one-year supervisory period.

[59] However, we are not able to quantify the wages that the appellant would have received if he had remained employed by HSC to October 4, 2011. The trial judge made no finding in this regard. It is not possible on this record to calculate the amount of the appellant's damages because of the parties' evidentiary dispute about his bonuses.

[60] Neither the parties nor the trial judge considered whether the appellant had a duty to mitigate his damages under this fixed-term contract.

[61] These remaining issues relating to the quantification of wrongful dismissal damages will have to be determined at the further trial of the specific issues identified.

(3) The Trial Judge Failed to Provide Adequate Reasons on the Remaining Issues of Bad Faith and Defamation

[62] This brings us to the next issue. The appellant alleges that the reasons of the trial judge are devoid of a meaningful explanation for her findings of fact and that they prevent proper appellate review. In particular, the appellant contends that the trial judge failed to provide adequate reasons with respect to issues of credibility.

[63] Appellate intervention may be warranted where the insufficiency of trial reasons prevents meaningful appellate review. Reasons that permit meaningful appellate review justify and explain the result, inform the losing party why he lost, enable informed consideration as to whether to appeal and enable the public to determine whether justice has been done: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487, 227 O.A.C. 51, at para. 11; Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 21-22; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10-35. Appellate courts take a contextual and functional approach to determining whether reasons permit meaningful and effective appellate review.

[64] Even if the reasons of the trial judge do not on their face reveal "what" was decided and "why" it was decided, this court is obliged to consider the trial record to determine if the reasons are more comprehensible when read in that context: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras. 30-32. This is desirable as it eliminates the expense and delay associated with another trial.

[65] It is well-established that a trial judge is not required to reconcile or refer to every discrepancy in the evidence. A particular challenge arises when credibility findings are required but not made, or if no analysis for the rejection of important conflicting evidence is provided. Where a case turns largely on a determination of credibility, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26 and Dovbush, at paras. 28-29.

[66] We agree that the trial judge failed to explain her findings and conclusions on the issues of bad faith and defamation. She simply recited the respondents' legal position and indicated that she agreed with it. She did not resolve the conflicting evidence between the appellant's and respondents' diametrically opposed versions of events. Nor can we determine the basis for the trial judge's credibility findings that were central to the determination of that dispute.

[67] It is well-established that an employer is required to treat the employee fairly on the termination of employment. An employer's failure to act in good faith in the manner of an employee's dismissal can lead to foreseeable and compensable damages: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at paras. 58-59. That will be the case when, for example, the employer is "untruthful, misleading or unduly insensitive": Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 98; Honda Canada Inc., at para. 57.

[68] The trial judge failed to engage in a thorough analysis of the circumstances surrounding the dismissal.

[69] The trial judge erred by focusing only on the appellant's conduct and confining her analysis to the appellant's May 30, 2011 letter. As a result, she failed to consider whether the respondents' actions (and inactions) following the receipt of that letter amounted to bad faith conduct, resulting in the damages claimed by the appellant. Without limiting the necessary analysis, we point to the following examples.

[70] The trial judge did not consider the timing of the dismissal. The appellant was told in the May 30th meeting that a decision would be made at a later departmental meeting about the appellant's desire to work on cardiac cases until his departure. However, by that date, Dr. Macpherson had already made the decision that he could no longer act as the appellant's supervisor.

[71] She also did not consider the failure of the respondents to respond to the appellant's letters of May 30th and June 3rd, or to give earlier notice of Dr. Macpherson's withdrawal and the termination of the appellant's employment, in the circumstances of this case.

[72] Nor did the trial judge critically analyze Dr. Macpherson's June 8th letter to the CPSO, which was an important component of the appellant's allegation of bad faith conduct in the manner of his dismissal. The June 8th letter set out alleged problems with the appellant's practical competencies, some of which pre-dated his earlier very positive April 5th report that Dr. Macpherson had intended to send to the CPSO. The June 8th letter stood in stark contrast to the April 5th report. As Dr. Macpherson admitted during his cross-examination, up to April 5th, there were no issues with the appellant's performance that he felt should be reported to the CPSO, nor was the appellant told there were any serious issues with his performance. The serious discrepancies between these reports merited consideration by the trial judge.

[73] Moreover, the trial judge did not consider the discrepancy between the concerns expressed in the June 8th report and the subsequent positive letters of recommendation by Dr. Crawford and two other members of the cardiac group, Drs. Igor Luginbuehl and Steven Berdock. Neither did she consider the subsequent assurances made by Dr. Crawford to the appellant that "there were no clinical concerns behind the end of your appointment and that the issues were of an interpersonal nature in a small cardiac group."

[74] The issue of Dr. Macpherson's June 8, 2011 report to the CPSO is also relevant to the appellant's claim for defamation. In her reasons, the trial judge sets out the respondents' defence that their communications with the CPSO about the appellant were "truthful and professional", "expressions of opinion, and were fair comment, based on facts, which were true in substance, made in good faith and without malice" and "on an occasion of privilege". Other than those references, the trial judge makes no further mention of the appellant's claim for defamation, other than to say that she agreed with the respondents' submissions.

[75] The trial judge's blanket finding that the respondents did not act in bad faith is not adequate to dispose of the appellant's claim for defamation. The June 8th report to the CPSO grounds the appellant's defamation claim. In consequence, the trial judge was required to undertake some analysis of the report in the context of the defamation claim. She was required to determine whether it was defamatory of the appellant, whether it was subject to the defence of qualified privilege, whether it was motivated by express malice, and if so, whether the defence of qualified privilege and fair comment failed, and whether the appellant suffered any harm as a result of it.

[76] In sum, the trial judge failed to refer to and critically analyze relevant evidence and failed to make essential credibility findings in accepting certain evidence on the issues of bad faith and defamation. It is not possible for this court to make the factual findings necessary to determine these issues on the existing trial record and, accordingly, we return these issues to a judge of the Superior Court for determination.

[77] These reasons should not be interpreted as a reflection of the strengths or weaknesses of the issues in this case. Determination of these issues will require the presiding judge to properly assess afresh all the relevant evidence and to make the findings of fact necessary to resolve the parties' dispute.

[78] Having determined that a trial of the issues is required with respect to the allegation of bad faith conduct in the manner of dismissal and defamation, we make no determination of any damages that might flow in that regard. In considering the damages issue, the judge hearing the trial of these issues will have to consider whether the absence of medical evidence of mental distress is fatal to a claim for damages in the circumstances of this case.

F. Disposition

[79] For these reasons, we allow the appeal and conclude that the appellant was wrongfully dismissed. We dismiss the cross-appeal. The following issues are remitted to a judge of the Superior Court for determination: (1) the quantification of wrongful dismissal damages; (2) whether the respondents engaged in bad faith conduct in the manner of the appellant's dismissal; (3) defamation; and (4) if the appellant establishes bad faith conduct and/or defamation, the quantification of any resulting damages.

[80] As agreed, the appellant is entitled to his partial indemnity costs of this appeal in the amount of $25,000, inclusive of disbursements and applicable taxes.

[81] Given that we have ordered a further proceeding on certain issues, costs of the trial will be in the cause. As such, there is no need to consider the costs, including the scale of costs, awarded by the trial judge.

Released: September 27, 2018

"S.E. Pepall J.A." "L.B. Roberts J.A." "B.W. Miller J.A."

Footnotes

[1] The restricted Certificate of Registration applied during the supervisory period. Following the one-year supervisory period and successful completion of the Practice Ready Assessment by the CPSO, the appellant would have been eligible for a permanent Certificate to practice independently in the scope of practice that was assessed.

[2] The appellant does not appear to have pursued his claim for civil conspiracy against the individual respondents at trial. At the conclusion of trial, he abandoned his claim against Dr. Macpherson for alleged misfeasance in public office. The appellant does not advance any appeal in respect of the dismissal of his claims for unlawful interference with economic relations, inducing breach of contract, civil conspiracy, negligent misrepresentation, or punitive damages.

[3] Based on the record, it would appear that the meeting took place on May 12 and that the trial judge's reference to a May 21 meeting was a typographical error.

[4] This is assuming that the appellant had a duty to mitigate in the circumstances of this fixed-term contract, which is not always the case: see, for example, Howard v. Benson Group Inc., 2016 ONCA 256, 129 O.R. (3d) 677, at para. 44 and Mohamed v. Information Systems Architects Inc., 2018 ONCA 428, 423 D.L.R. (4th) 174, at para. 26.