Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2021-04-30 Docket: C67398

Between: Vinay Nagpal, Plaintiff (Respondent) And: IBM Canada Ltd., Defendant (Appellant)

Before: Doherty, Pepall and Thorburn JJ.A.

Counsel: Jennifer Dolman and Aislinn Reid, for the appellant IBM Canada Ltd. Michael N. Freeman, for the respondent Vinay Nagpal

Heard: February 16, 2021 by videoconference

On appeal from: The judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated July 30, 2019, with reasons reported at 2019 ONSC 4547, 2019 C.L.L.C. 210-065.

Reasons by: Thorburn J.A.

A. OVERVIEW

[1] This is an appeal of an order dismissing IBM Canada Ltd.’s (“IBM”) motion for summary judgment and granting summary judgment in favour of IBM’s former employee, Vinay Nagpal.

[2] In so doing, the motion judge held that IBM had not established that Mr. Nagpal had resigned, abandoned his position at IBM, or that his contract of employment was frustrated. These were the issues placed before the motion judge by IBM.

[3] First, the motion judge held that, “there was no clear and unequivocal resignation by Mr. Nagpal. Nor can it be said that Mr. Nagpal’s actions, viewed objectively by a reasonable person, clearly and unequivocally indicated an intention to no longer be bound by his employment contract with IBM.” As such, the motion judge held that Mr. Nagpal did not resign or abandon his employment with IBM.

[4] Second, the motion judge found that IBM could not rely on the doctrine of frustration as IBM “had no basis to find that his illness was permanent, or even long-term” at the time his employment ended.

[5] Third, although he held it was not necessary for his decision, the motion judge was not satisfied that the Short-Term Disability (“STD”) Policy formed part of the employment contract which could be relied on by IBM to support its contention that Mr. Nagpal resigned.

[6] On the motion, the parties had agreed that, should IBM be unsuccessful in establishing that Mr. Nagpal either resigned, abandoned his position, or that the contract was frustrated, it would follow that Mr. Nagpal had been wrongfully dismissed. Noting this concession, the motion judge granted Mr. Nagpal summary judgment for wrongful dismissal, with damages to be assessed.

[7] On this appeal, IBM claims the motion judge:

1. Made palpable and overriding errors by misapprehending evidence that Mr. Nagpal had resigned, abandoned his employment or that his contract of employment was frustrated;

2. Erred in holding that the STD Policy was not part of Mr. Nagpal’s employment contract and that Mr. Nagpal was not estopped from denying that the STD Policy was enforceable; and,

3. Erred in finding that IBM had a duty to further discuss Mr. Nagpal’s medical condition with him.

[8] For the reasons that follow, I would dismiss the appeal.

B. BACKGROUND

Mr. Nagpal’s employment history

[9] Mr. Nagpal was employed by IBM for over two decades and spent fifteen years in leadership or management positions.

[10] In 2011, he applied for and was granted a new leadership position. Shortly thereafter, he began experiencing stress and mental health problems. Mr. Nagpal attributed these difficulties to a challenging employee and he sought support from his supervisor, Rick Simpson. The motion judge found that, by March 2012, Mr. Simpson was aware of Mr. Nagpal’s stress and mental health challenges but took few steps to address them. By November 2012, Mr. Simpson was tracking Mr. Nagpal’s absences from work and, in January 2013, Mr. Simpson gave Mr. Nagpal a poor performance evaluation, the first he had received.

[11] In March 2013, Mr. Nagpal called in sick. Mr. Nagpal advised IBM that his doctor recommended he take six weeks off and he commenced a leave of absence. He was referred to Manulife Financial Corp. (“Manulife”), which administers IBM’s STD Policy.

The STD Policy

[12] Under the STD Policy, qualified IBM employees with at least five years of service are provided 100% of their salary for the first 26 weeks of disability leave. To qualify, an employee must have an illness or injury that prevents the employee from performing the essential duties of the occupation. Documentation must be provided to Manulife in support of the claim.

[13] If short-term disability benefits are denied by Manulife, the employee may either return to work, appeal Manulife’s decision and remain on an administrative unpaid leave of absence until the appeal is adjudicated by Manulife, or apply for long-term disability. The STD Policy also provides that:

If you have not taken any action in support of your appeal within one month of the commencement of the unpaid leave, IBM will consider that you have abandoned your appeal. In this instance you will be expected to return to work immediately or will be presumed to have voluntarily resigned your employment with IBM. [Emphasis added.]

[14] While Manulife administers the STD Policy on behalf of IBM, the policy provides that “IBM in its sole discretion shall decide who is properly entitled to STD benefits”. It also provides that “IBM reserves the right to modify, discontinue, suspend, or improve” its disability policies and, further, that “[n]othing contained in [the policy] shall be construed as creating an express or implied obligation on the part of IBM” to maintain its disability policies.

Mr. Nagpal’s application for STD benefits

[15] In May 2013, Mr. Nagpal was told he had to provide documentation to support his claim for short-term disability benefits to Manulife.

[16] In June, Mr. Nagpal’s psychiatrist completed Manulife’s short questionnaire confirming that he was being treated for depression and anxiety, among other things.

[17] In early July, his psychologist completed Manulife’s questionnaire, advising that Mr. Nagpal had “poor stress coping, cognitive impairment, limited energy and tolerance” and that the duration of this was “unknown”. She stated that “return to work is premature” and would “likely exacerbate symptoms and stall recovery” and was “not recommended”. Manulife acknowledged receipt of these materials, thanked Mr. Nagpal for his quick response, and told him that, “[a]s the information is reviewed, we will follow-up with you.”

[18] Neither Mr. Nagpal’s psychiatrist nor psychologist provided their notes and reports to Manulife, as requested by the questionnaire. Manulife never followed up to request these additional materials, nor did Mr. Nagpal receive copies of the information his treating professionals sent to Manulife.

Manulife’s response

[19] On July 16, Manulife’s medical consultant, Dr. Hines, reviewed Mr. Nagpal’s file. On the basis of the responses to questionnaires, he observed that there was “some improvement” in Mr. Nagpal’s condition. He acknowledged that Mr. Nagpal was on medication for depression and that there were “workplace issues” but stated that Mr. Nagpal “should be able to receive treatment while working.” He did not contact Mr. Nagpal’s doctors. The motion judge noted that it was difficult to reconcile Dr. Hines’ conclusion with the views of those treating Mr. Nagpal.

[20] On July 19, Manulife told Mr. Nagpal that his benefits would be terminated based on the information received from his two physicians and Dr. Hines’ assessment. Mr. Nagpal was advised that he could appeal but that there would be no point in appealing unless he submitted information “that has not already been reviewed”.

[21] On July 22, IBM, through Mr. Simpson, informed Mr. Nagpal that he could return to work or appeal Manulife’s decision, and that he had until August 22, 2013 to provide “the appropriate documentation” required to support the appeal to Manulife, otherwise IBM would consider the appeal abandoned and “you will be required to return to work or will be considered to have voluntarily resigned your employment.”

The termination of Mr. Nagpal’s benefits and IBM’s response

[22] Mr. Nagpal did not commence an appeal and provided no new information to Manulife, although his benefits were to expire on July 30. He contacted his doctors, who confirmed that Manulife had not requested any additional information and that they were unable to offer anything “new” to Manulife. Mr. Nagpal deposed that, at this point, he thought IBM was putting him “between a rock and a hard place” and that he saw no point in appealing, as Manulife’s representative had told him there was nothing to be gained.

[23] Instead, he engaged legal counsel, Mr. Freeman, who advised IBM by letter dated July 29 that:

1. Mr. Nagpal “cannot return to work” (emphasis added);

2. “[T]here is no new information that would be brought forward in support of an appeal other than what was provided by Mr. Nagpal’s doctors” on June 2 and July 2, 2013;

3. The doctors “would be pleased to provide updated information if required”; and,

4. “Mr. Nagpal has no intention of resigning, nor will he be cajoled into doing so. He is, however, prepared to enter into negotiations that might lead to the development of an ‘exit package’ whereby he would agree to leave IBM provided that he is reasonably compensated for doing so….”

5. He looked forward to “the courtesy of your prompt reply”.

[24] Mr. Nagpal’s short-term disability benefits expired the following day.

[25] No one at IBM responded to Mr. Nagpal counsel’s July 29, 2013 letter until September 10, when IBM offered Mr. Nagpal three options: (1) a return-to-work meeting “to discuss your barriers to returning to work”; (2) communicate directly with IBM “to address any workplace concerns”; and/or (3) contact the confidential employee assistance provider for information about “services such as Professional Counselling, Family Support, Nutrition and Health Coaching.” He was told that if he did not “engage any of these processes by September 27, 2013 we will consider you to have voluntarily resigned on September 27, 2013.”

[26] On September 19, his counsel responded, stating that “Mr. Nagpal’s healthcare providers advise that he is not capable of returning to work even with some form of accommodation…. [T]he only satisfactory resolution is that if Mr. Nagpal’s disability cannot be reinstated, his salary should continue to be paid to him. It appears the intent is to either starve Mr. Nagpal into settlement or force him to resign from his employment. Please rest assured that neither of these will happen.”

[27] Mr. Nagpal’s counsel received no response from IBM. On October 9, the company wrote to Mr. Nagpal stating that it considered him to “have abandoned [his] employment with IBM Canada Limited.” While there were further discussions with Mr. Nagpal’s counsel, IBM did not reinstate Mr. Nagpal as requested or provide him with an exit package.

[28] In December 2013, Mr. Nagpal commenced an action against IBM alleging, among other things, wrongful or constructive dismissal. In May 2014, he also commenced an action against Manulife, alleging breach of contract, which was settled by payment of a lump sum of an undisclosed amount prior to the motion on appeal.

Mr. Nagpal’s ongoing health challenges

[29] There is no dispute that Mr. Nagpal was unwell in 2013 and continued to have mental health challenges for several years following these events. The motion judge noted that, “[i]n the litigation, additional medical information, in the form of notes and reports have been produced that may well have supported continuing STD, and providing [long-term disability], benefits.”

[30] The motion judge found that these documents were in the doctors’ possession but not Mr. Nagpal’s and, as noted above, that Mr. Nagpal was unaware of the contents of the documents submitted to Manulife.

C. ANALYSIS OF THE Issues

1. Did the motion judge make palpable and overriding errors of fact in holding that Mr. Nagpal neither resigned nor abandoned his employment, nor was the contract frustrated?

The law

[31] As the motion judge observed, resignation must be clear and unequivocal. The evidence must objectively reflect an intention to resign, through words or conduct. Context is important. The totality of the circumstances must be considered: Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), at para. 27.

[32] The test for abandonment by contrast, is whether 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 and, in particular, the implied term of every employment contract that the employee must attend work unless excused or unable: Betts v. IBM Canada Ltd., 2015 ONSC 5298, 2016 C.L.L.C. 210-003 (“Betts (ONSC)”), at para. 57, aff’d 2016 ONSC 2496, 31 C.C.E.L. (4th) 60 (Div. Ct.) (“Betts (Div. Ct.)”); Pereira v. The Business Depot Ltd., 2009 BCSC 1178, at para. 29, rev’d on other grounds, 2011 BCCA 361, 20 B.C.L.R. (5th) 295.

[33] A contract is frustrated where, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract: Duong v. Linmar Corp, 2010 ONSC 3159, 82 C.C.E.L. (3d) 84, at paras. 33-36, aff’d 2011 ONCA 38 and Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943 at 967-968.

[34] The determination of whether a temporary incapacity to work constitutes frustration is also contextual. Illness alone is not a frustrating event and one must look at the length of the illness in relation to the duration of the employment contract: Duong, at para. 35; Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 35 C.C.E.L. (2d) 1 (Ont. C.J.), at para. 37, aff’d , 128 O.A.C. 236 (C.A.), at paras. 9-11.

[35] Evidence that relates to the post-termination nature and extent of an employee’s disability is permitted only if that evidence sheds light on the nature and extent of the employee’s disability at the time of the employee’s dismissal: Ciszkowski v. Canac Kitchens, 2015 ONSC 73, 20 C.C.E.L. (4th) 171, at para 156.

The motion judge’s decision

[36] The motion judge found that Mr. Nagpal said clearly, through his lawyer, that he had no intention of resigning or abandoning his employment.

[37] He rejected IBM’s argument that, notwithstanding these statements, Mr. Nagpal’s conduct in failing to appeal Manulife’s decision or return to work amounted to abandonment or resignation. In his view, Mr. Nagpal’s conduct could not be looked at in isolation. IBM ignored the letters from Mr. Nagpal’s lawyer and simply relied on the process set out in the STD Policy, the application of which, it had delegated to Manulife. When that ran its course, IBM presented Mr. Nagpal with options that all contemplated a return to work, even though IBM knew Mr. Nagpal had been on STD leave for four months due to mental health issues, and had been told by Mr. Nagpal’s lawyer that Mr. Nagpal’s treating professionals had advised him against returning to work.

[38] The motion judge observed that IBM “made no attempt to engage with Mr. Freeman or obtain any further information about Mr. Nagpal’s condition, despite the fact that IBM knew he was under medical care…”. While the motion judge noted that Mr. Freeman failed to “identify the gap in information [provided by Mr. Nagpal] or pursue an appeal [with Manulife] which might have disclosed more about Mr. Nagpal’s condition to IBM”, this alone did not mean Mr. Nagpal resigned or abandoned his employment.

[39] Finally, he considered IBM’s argument that the STD Policy was part of Mr. Nagpal’s contract of employment such that Mr. Nagpal was deemed to have voluntarily resigned. The motion judge found that the STD Policy was not part of the employment contract that could be relied upon by IBM to conclude that he had resigned but held that this finding was not necessary for his decision. “[H]aving regard to the entire factual context”, he held that Mr. Nagpal did not resign, nor did his actions, viewed objectively, indicate that he no longer intended to be bound by the terms of his employment contract.

[40] Moreover, at para. 52, he held that the contract of employment was not frustrated because when his employment was terminated:

IBM had very limited evidence of Mr. Nagpal’s condition, and no basis to find that his illness was permanent, or even long-term. It made no inquiries either. To the extent that evidence subsequently disclosed demonstrated that he had a longer-term illness, this was something that could easily be tolerated by a large company like IBM. An ability to tolerate long-term absences is indicated by the availability of long-term disability benefits and by the fact that had Mr. Nagpal appealed Manulife’s decision his employment status would have continued, albeit without pay.

[41] Since IBM conceded on the motion for summary judgment that Mr. Nagpal was wrongfully dismissed if IBM’s arguments regarding resignation, abandonment, and frustration were unsuccessful, the motion judge granted summary judgment in favour of Mr. Nagpal.

Analysis and conclusion

[42] There is no dispute that deference is owed to the motion judge on appeal. Whether or not there is a genuine issue requiring trial is a question of mixed fact and law. Absent an error in principle or an error with regard to a purely legal question, the motion judge’s findings should be overturned only where there is palpable and overriding error: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84.

[43] I see no error in the motion judge’s finding that IBM did not satisfy its onus to establish that Mr. Nagpal resigned or abandoned his employment on or before October 9, 2013, because (i) he and his counsel made clear and unequivocal assertions that he was not resigning or abandoning his employment; (ii) he advised IBM that he was suffering from ongoing mental health issues and, (iii) Mr. Nagpal’s lawyer told IBM that Mr. Nagpal’s healthcare providers said he was “incapable of returning to work” and “they would be pleased to provide updated information if required”.

[44] Based on this undisputed evidence, I find there was no palpable and overriding error in the motion judge’s findings of fact or his conclusion that, viewed objectively, Mr. Nagpal’s actions do not reflect a clear intention to resign nor do they indicate an intention to no longer be bound by the employment contract. As discussed in greater detail below, nor do I accept IBM’s argument that, notwithstanding this evidence, Mr. Nagpal resigned by operation of the STD Policy. As such, IBM’s argument that the motion judge erred in finding that Mr. Nagpal neither resigned nor abandoned his employment must fail.

[45] I further find that the motion judge made no legal error in concluding that the contract of employment was not frustrated.

[46] IBM claims the motion judge made a palpable and overriding error of fact by failing to consider evidence that, at the time of Mr. Nagpal’s termination of employment, “there was no reasonable likelihood of him returning to work at IBM within a reasonable period and that the contract of employment was therefore frustrated. This evidence was in the form of letters from legal counsel referenced above, and medical evidence.”

[47] I disagree. IBM’s argument on the motion and before this court was that it was not provided with sufficient information to know the extent of Mr. Nagpal’s illness or when he could return to work. Since IBM did not know and did not ask Mr. Nagpal’s counsel to provide the information from Mr. Nagpal’s treating medical professionals, whom he said “would be pleased to provide updated information if required”, IBM could not satisfy its onus to establish that the contract of employment was frustrated at the time his employment terminated.

[48] IBM cited Ciszkowski to support its position on appeal that post-termination evidence is permitted so long as it relates to the nature and extent of an employee's disability at the time of termination of employment.

[49] The Ciszkowski decision was noted by the motion judge. He held, however, that the case also provides that an employer is not permitted to rely on post‑termination evidence if it is not relevant to the dismissal date. The medical notes IBM introduced on the motion were written prior to Mr. Nagpal’s dismissal but were not in IBM’s possession at the time of dismissal. They are evidence that demonstrates only that, sometime later, IBM discovered he had a longer-term illness.

[50] Moreover, the letters from Mr. Nagpal’s lawyer, which were available to IBM at the time his employment was terminated, were before the motion judge and his interpretation of those letters attracts deference. The letters do not establish that Mr. Nagpal’s illness was so severe that he was likely unable to continue his employment after the expiration of the term of IBM’s long-term disability policy.

[51] For these reasons, IBM’s claim that the contract of employment was frustrated must fail.

2. Did the motion judge err in holding that the STD Policy was not part of Mr. Nagpal’s employment contract?

[52] IBM raises several arguments concerning the motion judge’s treatment of the STD Policy. IBM claims (i) the motion judge erred by granting summary judgment on a basis not pleaded, namely that the STD Plan did not form part of Mr. Nagpal’s contract of employment; (ii) the motion judge applied incorrect legal principles in determining that the STD Policy did not form part of the contract of employment; and in any event, (iii) Mr. Nagpal was estopped from denying the enforceability of the STD Policy.

[53] In short, IBM claims that the STD Policy confers benefits on employees that they are not otherwise entitled to under statute or common law. The condition of receiving those benefits is that employees comply with the terms set out in the policy. As such, IBM claims the motion judge was wrong to decide that the STD Policy did not form part of the contract of employment and erred in failing to give effect to the STD Policy’s presumption of resignation.

[54] As noted by IBM, this STD Policy has been found by other courts to be enforceable, insofar as noncompliance with procedures set out in the policy (i) may justify dismissal or (ii) may support a finding of resignation or abandonment: Betts (ONSC), at para. 62; Betts (Div. Ct.), at para. 19.

[55] The motion judge nonetheless held that the STD Policy could not be “relied on by IBM to conclude that Mr. Nagpal’s failure to appeal Manulife’s decision and his subsequent failure to return to work amounted to a resignation”. He observed that termination provisions – rebutting an employee’s common-law entitlement to termination only on reasonable notice – require clear, express, and unambiguous language in the contract of employment. In his view, the STD Policy did not form part of the contract of employment because there was no evidence of a common intention to be bound by its terms, as IBM could change those terms unilaterally at any time. His analysis of this issue is consistent with the authorities in Leeming v. IBM Canada Ltd., 2015 ONSC 1447, at paras. 48-51; Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), at paras. 10-28, per McLachlin J. (as she then was); Cheong v. Grand Pacific Travel & Trade (Canada) Corp., 2016 BCSC 1321, 35 C.C.E.L. (4th) 316, at para. 48.

[56] He held however, at para. 45, that it was not necessary for him to decide whether the STD Policy formed part of Mr. Nagpal’s contract of employment.

[57] I agree with the motion judge that it is not necessary to decide whether this STD Policy forms part of the contract of employment because, even if it were part of the employment contract, the provision of the STD Policy at issue provides only that Mr. Nagpal will be “presumed to have voluntarily resigned” (emphasis added).

[58] I accept that, regardless of whether it forms part of the contract of employment, the presumption contained in the STD Policy could be relevant to a determination of whether Mr. Nagpal in fact clearly and unequivocally resigned his employment, as suggested by the Divisional Court in Betts, at para. 19. But this presumption must be looked at in the context of the other evidence that (i) Mr. Nagpal and his counsel clearly and consistently said that he did not intend to resign, and (ii) the above medical opinions substantiate Mr. Nagpal’s claim that he was suffering from mental health issues and there were concerns about his ability to return to work. Even if the presumption of resignation were part of the employment contract, it was open to the motion judge to find that the evidence, taken as a whole and viewed objectively, does not clearly and unequivocally indicate Mr. Nagpal’s intention to resign or abandon his employment contract, particularly given the evidence that he was unable to work when he was seen by his psychologist.

[59] In my view, Mr. Nagpal’s conduct, and that of his lawyer, was not without fault. But the motion judge was alive to these issues. As he noted, “[e]ach case turns on its own facts.” He considered and distinguished Betts and found on the evidence before him that, notwithstanding the language of the STD Policy, Mr. Nagpal did not resign. This finding is entitled to deference.

[60] I cannot accept IBM’s argument that the motion judge erred by deciding the motion on a basis not pleaded by Mr. Nagpal. IBM raised the effect of the STD Policy on its motion; Mr. Nagpal was entitled to dispute IBM’s assertions. The motion judge was invited to consider the effect of the STD Policy and, in any event, did not decide the motion on the basis of its unenforceability. Moreover, there was no unfairness in granting Mr. Nagpal summary judgment given IBM’s concession that liability would follow from the failure of its motion.

[61] Finally, because the motion judge did not decide the motion for summary judgment on the basis of the enforceability of the STD Policy, I need not address IBM’s estoppel argument.

3. Whether the motion judge erred in finding that IBM had a duty to discuss Mr. Nagpal’s medical condition further with him

[62] IBM also claims that the motion judge erred by asserting that IBM had a duty to discuss Mr. Nagpal’s medical condition with him.

[63] The motion judge remarked, at para. 38, that:

IBM should have done more when Mr. Nagpal clearly expressed an intention to return to work when he was able to do so and said he could not do so because of his continuing illness, on the advice of his doctors. Instead, on September 10, rather than reaching out to Mr. Freeman [Mr. Nagpal’s lawyer] and inquiring into why Mr. Nagpal, a senior, a [sic] long-time employee was not able to return to work, Ms. Runnalls [from IBM] gave him an ultimatum and Mr. Simpson [from IBM] initiated steps to permanently replace Mr. Nagpal.

[64] This statement was made in the context of the motion judge’s analysis of whether IBM had established that Mr. Nagpal resigned or abandoned his employment, not in the context of a free-standing duty on IBM’s part.

[65] Furthermore, as noted at para. 30 of the motion judge’s reasons, the parties agreed that unless IBM was able to establish that Mr. Nagpal resigned or abandoned his employment, or that his contract of employment was frustrated, IBM would concede that Mr. Nagpal was wrongfully dismissed.

[66] Consistent with that agreement, the motion judge held, at para. 54 of his reasons, that:

In light of my findings that Mr. Nagpal did not resign or abandon his employment, and that the employment contract was not frustrated, IBM’s motion for summary judgment is dismissed. It follows, then, that Mr. Nagpal was wrongfully dismissed, and I grant summary judgment in favour of the plaintiff accordingly. Although Mr. Nagpal brought no motion for summary judgment, the Court can grant judgment in such circumstances when all of the relevant evidence is before the Court, as here, and where, as here, the parties’ agreed that the only remaining issue if IBM failed on its motion, is to determine damages. [Emphasis added]

[67] Given the above concession that the wrongful dismissal claim succeeds if the claims of resignation, abandonment, and frustration are unsuccessful, the only remaining issue is the determination of damages.

D. CONCLUSION

[68] For the above reasons, I would dismiss the appeal and remit the issue of damages to the motion judge.

[69] The parties did not reach an agreement on costs of the appeal and the motion below. I would order that, if the parties are unable to reach an agreement, the respondent shall make written submissions, not exceeding five pages, within 14 days of the release of these reasons. The appellant shall make written submissions, not exceeding five pages, within 10 days after the respondent makes his submissions.

Released: April 30, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. S.E. Pepall J.A.”