ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-426638
DATE: 20121001
BETWEEN:
Mykki Cavic Plaintiff – and – Costco Wholesale Canada Limited Defendant
Lior Samfiru; Lumi Pungea , for the Plaintiff
Michael F. Horvat , for the Defendant
HEARD: September 17-19, 2012
REASONS FOR DECISION
Carole J. Brown J.
[ 1 ] The plaintiff brings this action for wrongful dismissal pursuant to Rule 76 of the Rules of Civil Procedure, R. R. O. 1990, Reg. 194. She further alleges that she was discriminated against due to a personal injury arising from a workplace accident and seeks damages for breach of the Human Rights Code , R. S. O. 1990, C. H. 19 s. 46.1.
The Issues
[ 2 ] The issues to be determined by this Court are as follows:
Did the defendant have just cause to terminate the plaintiff?
If the plaintiff's employment was not properly terminated for cause, what reasonable notice would be applicable to her?
If the plaintiff's employment was not properly terminated for cause, is the plaintiff entitled to damages for bad faith, punitive and/or human rights damages arising from the manner of termination of her employment?
The Facts
[ 3 ] The plaintiff, Mykki Cavic ("Ms. Cavic"), had been employed with the defendant for 19 years in various positions. On April 15, 2011, her employment with Costco Wholesale Canada Limited ("Costco") was terminated for cause. At the time of her termination, the plaintiff held the position of Night Floor Merchandise Supervisor, a first level management position which she had held since April 14, 2008. She was responsible for supervising 20 to 25 employees. The plaintiff received an annual salary of $65,000, plus employment benefits, including health, dental, life, dependent life, accidental death and dismemberment and short and long-term disability insurance, all of which were fully paid by the defendant.
[ 4 ] Following her termination, she worked for a short time at Buffalo Wings. She sought other employment comparable to her employment at Costco but was unsuccessful, as she had only a Grade 12 education. She has now returned to school at Humber College.
[ 5 ] She is divorced and has a 17 year old son.
[ 6 ] It is the position of the plaintiff that she was wrongfully terminated, without cause. It is the position of the defendant, that she was terminated for cause as the result of falsification of health benefit claims provided through her employment and filed with the benefits insurer, and her failure to provide a truthful explanation of the circumstances of her conduct when given the opportunity on three separate occasions, one by Manulife and two by Costco.
The Benefits Program
[ 7 ] The benefits program offered to all Costco employees was managed by Manulife. The evidence indicates that Costco is a self-insurer, that it retained Manulife Financial (“Manulife”) to process and analyze all claims submitted by employees and to provide reimbursement for claims in the amount of 80%. Manulife thereafter would invoice Costco for all claims paid out by Manulife, and Costco would provide full reimbursement to Manulife as invoiced. Where Manulife found claims that it judged to be dubious or fraudulent, it would conduct an initial investigation and would then advise Costco of the potential dubious or fraudulent claim. Costco would thereafter conduct its own additional investigation, without the further involvement of Manulife.
[ 8 ] The parties agree that a new benefits plan was introduced at Costco on July 1, 2010, which allowed for more flexible options for employees. There were three levels of coverage, including Silver, Platinum, and Gold. Employees could do nothing and have their coverage "grandfathered" into the "Gold" level, which offered essentially the same coverage as the previous plan, or could opt into one of the other new plans which provided different levels of coverage. The benefits plan, which had previously been on a calendar year basis, was now to run on a fiscal year basis from July 1 to June 30 of each year.
[ 9 ] The evidence of the plaintiff, and her two witnesses, Nicole Stewart and Mauro Calvano, also employees of Costco and friends of hers, was that they were first aware of the introduction of a new plan when the new Employee Handbook was provided to the employees in late 2009. The defendant testified that a memo was circulated on April 1, 2010, which advised the employees that, during the transition from the previous benefits plan to the flexible benefits plan, the paramedical maximum reimbursements were to be reduced from $400 per year reimbursement to $200 for the period January 1 to June 30, 2010, after which the maximums would be reset for the new policy period commencing July 1. It was the evidence of the plaintiff, as well as that of her two witnesses, Ms. Stewart and Mr. Calvano, that they never saw this memo.
The Phantom Dependent
[ 10 ] The plaintiff testified that, in or about 2004, she noted that on her benefits profile a phantom dependent was listed, named Sara-Eve Dore, identified as her daughter. She contacted Manulife to have the phantom dependent removed from her profile. Approximately two years later, in 2006, she discovered that the dependent had not been removed from her plan and again contacted Manulife and was directed to speak with her employer, Costco. An Enrollment Confirmation form signed by the plaintiff and dated April 13, 2006 indicates that she attempted to delete Sara-Eve Dore from her plan. Her efforts were not successful and, in May of 2010, she went online, found that Sara-Eve Dore was still on her file and attempted to delete her name from the plan. She testified that in June of 2010, she discovered that Sara-Eve Dore remained on her benefits profile. She testified that she did not follow up in the intervals to verify that the phantom dependent had been removed.
[ 11 ] She testified that, when she discovered in 2010 that Sara-Eve Dore remained on her benefits profile, she was upset and frustrated, and decided to take matters into her own hands. She testified that, in an effort to gain the attention of Manulife with respect to this phantom dependent which she had unsuccessfully tried to remove from her profile, she decided to falsify documents and submit false claims in the name of Sara-Eve Dore. The parties agree that prior to this time, no claims were made in the name of Sara-Eve Dore. She admitted that she took receipts received from medical providers for paramedical treatments that she had received, including massage, chiropractic, and acupuncture treatments, falsified documents by typing the name Sara-Eve Dore on a separate piece of paper and superimposing it over her name on the receipt, thus replacing her name with that of the phantom dependent, photocopying the documents and submitting them. She submitted claims in the name of Sara-Eve Dore for massage therapy which she had received on June 9, 2010 in the amount of $75 and June 15, 2010 in the amount of $75, for chiropractic treatment on June 9 in the amount of $38, and an initial acupuncture treatment on June 9 in the amount of $34, in total $170.00. She admitted that she received reimbursement in the name of Sara-Eve Dore for the falsified claims submitted. It was her testimony that she did all of this to gain the attention of Manulife in order to finally have this phantom dependent removed from her benefits profile.
[ 12 ] However, she admitted at trial that when she subsequently received a telephone call from Manulife, inquiring about Sara-Eve Dore and whether this claimant was her daughter, she stated to Manulife that it was her daughter. Although she had now obtained the attention of Manulife, which she testified was her sole rationale for submitting false documents, she did not respond that she was pleased to have finally gained their attention and did not explain the situation to them or request that they remove Sara-Eve Dore from her benefits profile. Rather, she advised them that Sara-Eve Dore was in fact her daughter. She testified that she was afraid to tell the truth.
[ 13 ] The plaintiff's stated explanation for having falsified the paramedical benefits forms for Sara-Eve Dore, i.e. that she did this in an effort to finally gain the attention of Manulife in order to have Sara-Eve Dore removed from her profile, is wholly inconsistent with her response to Manulife when they called to inquire and confirm as to whether Sara-Eve Dore was her daughter. Her actions, in light of the explanation for falsification of documents are neither consistent nor are they logical.
[ 14 ] It is the theory of the defendant, Costco, that her reason for falsifying documents was to obtain additional benefits prior to termination of the medical plan which was to expire on June 30, 2010. It is Costco’s theory that by submitting certain paramedical expenses in the name of her dependants rather in her name, she would be able to obtain reimbursement for an amount greater than the $400 per person per area of treatment permitted under the policy, in particular as the amount of coverage under the old plan was to be prorated from January to June with the maximum coverage per area of treatment to be reduced from $400 to $200. The defendant, Daniel Parent, the National Director for Human Resources for Costco Canada, testified that the advantage to the plaintiff had been arithmetically calculated and analyzed during Costco’s investigation.
[ 15 ] The plaintiff categorically denied that she falsified and submitted medical documents in order to gain any advantage and testified that, indeed, she did not know that there was to be a prorating of her benefits entitlement coverage for the period from January to June of 2010. She testified, as stated above, that she never received the April 1, 2010 memo distributed to all employees, and suggested that the memo was never sent by the defendant to any employees. Her two witnesses, who are friends of hers and employees of Costco, also stated that they did not see the memo. The defendant has acknowledged that after the plaintiff's termination, and after the new policy had come into place, it was decided by Costco to cover employee benefit claims for amounts incurred from January to June to the original amount of $400 rather than the prorated amount of $200. Thus, in the end, the plaintiff would have been covered in any event had she not been terminated, although it is her belief as to the situation at the material time that is to be considered.
[ 16 ] There is no disagreement between the parties with respect to the fact that benefit claims were falsified and submitted. The parties differ however with respect to the reason for the falsification and whether it constitutes cause for termination. It is the position of the plaintiff that the falsification was done not with an intent to deceive but only to bring to the attention of the benefits insurer the error in her profile and to finally delete the phantom defendant therefrom. The defendant’s explanation is as set forth at para. 14, above. It is further the position of the defendant that the conduct itself was a fundamental breach of trust of someone in a management position upon whom significant reliance and trust were placed, that when provided the opportunity to provide a reasonable explanation for her actions, she failed to do so on three occasions, once with Manulife when she admits that she stated upon inquiry by Manulife that Sara-Eve Dore was her daughter, and twice with Costco during the meetings held in March and April 2011, and that following a thorough investigation of the matter, Costco concluded that the plaintiff's actions were a serious and fundamental breach of the trust placed upon her by Costco, as their employee and manager, which justified termination for cause and without payment of notice in lieu .
[ 17 ] The evidence indicates that the plaintiff also submitted another falsified document in the name of her son for treatment which she received on August 9, 2010, after the transition period had ended and the new flex benefits plan was in place. She stated that she did this because she misunderstood how flex benefits worked and believed that she was entitled, at her discretion, to allocate flex dollars between herself and her son interchangeably for treatment received by either of them. When Manulife called, after investigating the claim, to inquire about this claim and to verify whether the treatment had indeed been performed on her son, she indicated that her understanding of the flex dollars was that she could allocate her benefits as she wished, and was advised by Manulife that this was incorrect.
[ 18 ] There is no explanation as to why, if the plaintiff believed she was entitled, pursuant to the benefits plan, to allocate flex dollars between herself and her son as she wished, she went to such elaborate measures to superimpose over a receipt for herself, the name of her son as it appeared on another valid receipt in his name, and then photocopied it for submission of her receipt in his name to Manulife. If she believed that she could allocate her flex dollars to her son and vice versa , there was no need to falsify a document for submission to the insurer. Again, the plaintiff's explanations are not consistent or logical.
[ 19 ] I do not find the plaintiff's explanations of her falsification of medical claim forms for either Sara-Eve Dore or her son, Nicholas, to be logical, reasonable or credible and, where such evidence differs, I prefer the evidence of the defendant.
[ 20 ] In assessing credibility of the witnesses in this case, I am guided by the observation of D. Brown J. in Atlantic Financial Corp. v Henderson at al ., [2007] 15230 (SCJ), as follows:
In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J. A. in Faryna v Chorny , 1951 252 (BC CA) , [1952] 2 D. L. R. 354 (B. C. C. A.) where he stated, at page 357:
The credibility of interested witnesses, particularly in cases of conflict of interest, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[ 21 ] As is apparent from my reasons thus far, and as will be apparent in the reasons below, where the parties versions of the facts are divergent, I have preferred the evidence of the defendant to that of the plaintiff due to (i) internal contradictions and inconsistencies in her testimony and (ii) the improbability of her version of the facts which does not accord with common sense.
The Investigation
[ 22 ] Mr. Parent, the National Director for Human Resources for Costco Canada, testified that Costco takes great pride in having long-term employees and that company policy requires that a number of stipulated senior people in the company must be involved with respect to investigations of and the decision to terminate long-term employees, which Costco defines as those with more than five years tenure. In the case of the plaintiff, given her 19 years of tenure, these senior people were involved in the decision-making process with respect to her termination. They included the Vice President of Operations; the Senior Vice President, Eastern Canada; the Country Manager; the Executive Senior Vice President; and the President of the Company. The investigation was conducted by Mr. Parent, Tracy Knocker, Regional Manager, HR, Robert LeBlanc, Director of the Benefits Program, in addition to those listed above.
[ 23 ] On July 1, 2010, upon receipt of an online massage therapy claim for Sara-Eve Dore, Manulife selected the file for random audit. Manulife communicated with the chiropractic and massage provider who confirmed that Sara-Eve Dore was not a patient of theirs and had not received the treatment for which claims were made. Based on that written confirmation from the chiropractic/massage provider, Manulife communicated further with the chiropractic/ massage provider to verify the additional claims made in the name of Sara-Eve Dore and received the same response. Manulife subsequently notified Costco of the suspect claims and Costco conducted its investigation thereafter.
[ 24 ] On February 15, 2011, the plaintiff was asked to meet with Dan Parent, and Tracy Knocker. According to the testimony of Mr. Parent, the purpose of the meeting was to provide the plaintiff with an opportunity to speak to the issue of the possible fraudulent claims. He testified that he advised the plaintiff that there was a possible fraudulent claim and asked the plaintiff if she had any comments with respect to that or if there was anything that she wished to talk about or to tell them with respect to any issues regarding claims filed. He stated that in response to his question, the plaintiff responded "no". She was asked if she would be agreeable to signing a consent to permit Costco to obtain documents from Manulife for purposes of the investigation. He stated that she was cooperative and signed the authorization requested.
[ 25 ] The plaintiff confirmed in testimony that she met with Mr. Parent and Ms. Knocker on February 15, 2011, that they questioned her about an email they received and asked if she knew of “something going on with Manulife.” She responded no. Her evidence is that she advised them, at that time, of her unsuccessful efforts, commencing back in 2006, to delete the name of Sara-Eve Dore from her benefits plan and it was at that time that they looked at her personnel file and found the original paper Enrollment Confirmation form which attempted to delete the name of Sara-Eve Dore. It was the evidence of the defendant that this discussion occurred at the second meeting held April 13, 2011.
[ 26 ] The parties agree that it was at the first meeting that the defendant requested a consent form to be signed by the plaintiff permitting them to obtain the confidential medical claims submitted by the plaintiff and held by Manulife. It was the defendant’s evidence that despite the fact that it was the self-insurer and ultimate payor of the medical benefits, it was not entitled to access the medical claims files of its employees without consent of the employees. At the meeting on February 15, 2011, the plaintiff was cooperative and signed the consent form permitting Costco to access her Manulife file.
[ 27 ] Mr. Parent testified that Manulife provided the benefits file of the plaintiff, which was reviewed and analyzed by Costco. Once all documentation had been reviewed, Mr. Parent requested to meet with the plaintiff on April 13, when she returned to work after a medical leave of absence and a vacation. She met with Mr. Parent and Tracy Knocker. He testified that he asked the plaintiff questions and Ms. Knocker took notes, which were produced in the defendant's brief of documents.
[ 28 ] Mr. Parent testified that he showed the plaintiff the documentation from Manulife and asked questions of the plaintiff regarding the potential falsification of documentation. He testified that she advised him that there was a fictitious person listed on her benefits profile and that she had tried to have this person removed over a period of four years, but without success. She did not admit to having falsified the documents and submitting claims on behalf of this fictitious person, although she admitted that the signature on the forms was hers. Rather, she gave various explanations as to how the falsification could have occurred, including someone having broken into the house and taken blank, signed forms which she left on her dining room table, someone having hacked into her computer and submitted the online claims or someone having broken into her home to use the computer. The plaintiff disputes this evidence and states that she was not giving Mr. Parent explanations as to how the falsifications could have occurred, but rather was giving explanations of her concerns about what might happen, going forward, given that this fictitious person was still on her profile and she did not know how the person had been added. While it was her testimony that she had these concerns about misuse by third parties of her benefits profile, she admitted that there had never been an instance of hacking or breaking into her computer, including no claim ever having been submitted in the name of Sara-Eve Dore over the previous four years. She further admitted that any claim that would have been submitted would have resulted in reimbursement by direct deposit into her bank account. Again, I do not find her evidence in this regard to be consistent, logical or credible and prefer the evidence of the defendant.
[ 29 ] As a result of their investigations, including review of the Manulife file and review of her personnel file, the defendant determined that the conduct of the plaintiff was not compatible with the employer/ employee relationship and was a fundamental breach of the trust placed in her as a supervisor/manager at Costco.
[ 30 ] It was the evidence of the defendant that, with respect to issues of termination of a longtime employee, which is defined by the defendant as an employee who has worked with Costco for over five years, there is a special policy and process for determination of whether an employee should be terminated. As stated at para. 22, above, the process involves consultation with the following persons: the Vice President of Operations for the District, Dave Skinner; the Senior VP, Eastern Canada, Pierre Riel, the Country Manager, Louise Wendling; the Executive Senior VP, Joe Paterra; and the Company President, Jim Senegal. In the case of the plaintiff, being a long-term employee of 19 years of service, this policy and process in arriving at the decision to terminate her was followed.
[ 31 ] At the end of the meeting on April 13, 2011, based on the investigation and the results of the meeting with the plaintiff, Mr. Parent testified that he suspended the plaintiff. The decision to terminate the plaintiff required the involvement of those individuals indicated at paragraph 22, above. He testified that based on the fact that the plaintiff was an area management level supervisor, that she had falsified documents, that on two separate occasions, in meetings with him, she had been given the opportunity to come clean and had failed to do so, indicated that he could no longer trust her and it was his recommendation that she be terminated for cause.
[ 32 ] Although the termination policy does contemplate progressive discipline in certain cases, Mr. Parent testified that this was not the case for progressive discipline but rather for termination for cause. The Employee Handbook does set forth, as stipulated causes for termination the " falsification of Company records and/or time card, including omitting facts or willfully giving wrong or misleading information. This includes, but is not limited to: (c) benefit enrolment/claim forms" (Section 11.2(1)(c)).
[ 33 ] Over the next day, April 14, the results of the investigation and Mr. Parent's recommendations were reviewed by all of those who, pursuant to the Company policy, were to be involved in the decision to terminate any long-term employee. It was decided by them, based on all of the information reviewed, that the plaintiff's employment should be terminated for cause.
The Plaintiff’ s Workplace Accident
[ 34 ] On February 22, 2011, at approximately 7 PM, the plaintiff was unloading a delivery from a delivery truck with a forklift when the door on the truck broke and struck her on the head, neck and shoulder. She testified that she had a momentary loss of consciousness, although she remained standing in the forklift. The manager was called. Four managers attended at the scene, including the Marketing Manager, HR Manager, Director of Membership and the Front End Manager. She testified that she was taken behind the receiving desk, ice was obtained and put on her injuries and they checked to determine if she could comprehend. She testified that the managers, or some of them, appeared to be more concerned about removing the delivery from the truck than about her injuries and mentioned, in particular, Brian Quigley, the Assistant Warehouse Manager. She stated that no one offered to take her to the hospital, which is protocol for severe injuries. She pointed to the Employee Injury/Incident Record and Investigation Report which was completed at the time of her injury. While it is clear that this record is for workplace injuries, she emphasized the fact that Section 2 of the form regarding Injury/Incident Record Information did not have a checkmark by "Workers Comp Injury" nor by "serious injury". She felt that her injury was serious. She pointed to this as evidence that she was not being taken seriously with respect to her injury. She stated that it was clear to her that they were not concerned about her. She requested that they call her friend, Nicole Stewart, who was a witness in this action, to take her home. She stated that she was unable to see straight, was tired, and wanted to sleep. Ms. Stewart testified that she attended at the Warehouse, and found Ms. Cavic, whose eyes appeared disoriented. She had a goose egg on her head, with blood inside. She stated that the managers had analyzed and assessed her to determine whether Ms. Cavic was okay, and did not request that Ms. Stewart take the plaintiff to the hospital. She drove the plaintiff home, dropped her off, asked her son, Nicholas, to watch after her. She stated that the plaintiff complained of a headache and did not say much. She suggested that Ms. Cavic attend the hospital the next day.
[ 35 ] The plaintiff did not attend hospital, but rather attended a walk-in clinic the next day, where she was diagnosed with injuries to the head, neck and left shoulder. A Functional Abilities Form ("FAF") was completed by the doctor indicating that the plaintiff was physically unable to return to work for one to two days. A second FAF was completed on February 28, 2011 indicating that the plaintiff was "capable of returning to work with no restrictions" and for "regular full-time hours” commencing March 3, 2011. The plaintiff testified that she and the doctor had discussed her return to work and that she wanted to return on a full time basis. She attempted to return to work on March 4, while still on medications, and was unable to continue. She was off work from March 8 to March 14, 2011. A FAF dated March 15, 2011, produced in evidence, indicates that she was "capable of returning to work with restrictions" and for "modified hours" commencing March 15. Other than the FAFs and two short medical notes from her chiropractor regarding her return to work, no clinical notes or records of her doctors were produced by the plaintiff.
[ 36 ] The plaintiff testified that from her first return to work on March 4, she felt belittled by her supervisor and stated that she felt that they did not care that she had been injured and that she was having difficulty completing her tasks’ and she felt that they did not care about her well-being. I note that her FAF at that time indicated that she was “capable of returning to work with no restrictions” and that her return to work would have been premised on that FAF. She further testified that when she returned to work on March 15th, she felt that her supervisors did not believe her with respect to her injuries or the seriousness thereof. She testified that, on the 16th or 17th of March, she was told to go onto the floor, although she stated that pursuant to the FAF in place at the time, she was not supposed to do so. The defendant submits, based on an email from the supervisor in response to a WSIB inquiry, that she was not requested to do physical work on the floor, but rather was asked to go out on the floor to supervise her employees, which would be within the parameters of the FAF in place at that time. She states that throughout her illness, her supervisor, Brian Quigley, the Assistant Warehouse Manager, was belittling, demeaning and rude, and would not accept her explanations of how the medication was making her feel, but would simply reprimand her for not finishing and closing up on time and for other matters. It is on this basis that she claims that she was being harassed because of her workplace injuries or disability in breach of the Human Rights Code.
The Law and Analysis
The Plaintiff’s Termination for Cause
[ 37 ] The onus is on the employer to show cause for dismissal: Hill v. Dow Chemical Canada Ltd. , 1993 7097 (AB KB) , 1993, CarswellAlta 46 (Alta Q.B.) at para. 11 . There is no catalogue of those actions that would constitute cause for termination, as each case is dependent on and must be judged on its own facts.
[ 38 ] The Supreme Court of Canada has provided guidance with respect to determining whether just cause exists. In McKinley v BC Tel , 2001 SCC 38 () , 2001 Carswell BC 1335 (S. C. C.), at paragraph 57 , Iacobucci J. for the Court stated:
… I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.
[ 39 ] The employee’s conduct and the character it reveals, must be such as to undermine or seriously impair the essential trust and confidence the employer is entitled to place in the employee in the circumstance of their particular relationship. In essence, the conduct must be such that the employer can point to it as good reason for having lost confidence in the employee’s ability to faithfully discharge his/her duties: Thompson v Boise Cascade Canada Limited . (1994), 1994 7385 (ON SC) , 7 C. C. E. L. (2d) 17 at p. 34 (Ont. C. J.).
[ 40 ] Dishonesty, falsification of documents, misappropriation of benefits and forgery have, individually and in conjunction with one another, been held to be a justifiable cause for dismissal with cause: Thompson v Boise Cascade Canada Ltd , supra at p. 37; Rochette v Office Equipment of Canada Inc . (1997), 34 C. C. E. L. (2d ) 20 at p. 24 (Ont. C. J.); Lovelock v DuPont Canada Inc. , [1998] O. J. 4971 at para. 26 (C. J.) . Trust and honesty are fundamental to the employment relationship, particularly in a retail business and/or of a supervisor. A breach of trust or dishonest conduct by an employee will constitute cause for termination: Courchesne v Inco Ltd., 2005 20802 (ON SC) , [2005] O.J. No. 2366 at paras. 39 to 40 (S. C. J.); Agosta v Longo Brothers Fruit Markets Inc . (2006), 2006 16843 (ON SC) , 50 C.C. E. L. (3d) 77 at 90 (Ont. S. C. J.).
[ 41 ] There is no question but that the plaintiff had been a long time, dedicated employee, who had been promoted to a lower level management position with supervisory responsibility for 20 to 25 employees in 2008. There is also no question that Costco valued and took pride in having long-term employees. The evidence of Daniel Parent was that Costco treated the termination of a long-term employee seriously and had specific policies regarding the decision to terminate such long-term employees.
[ 42 ] In this case, the plaintiff was a manager of Costco and the company reposed trust in her and expected honesty and integrity of her. It was the defendant's submission that in the case of falsification of claims to the third-party insurer for ultimate reimbursement by Costco, there was even more responsibility on the part of the employee to exercise honesty and integrity in making such claims, as they were not to be reviewed by Costco, but only paid by Costco and were done by the employee without opportunity for supervision by the employer.
[ 43 ] The Employee Handbook states under "Standard of Ethics – Management" that "In accepting a position of management, you must be committed to and demonstrate a role of honesty and forthrightness. Anytime there is the slightest doubt about an activity that could be questioned regarding honesty, integrity or intent, you must discuss it with your Manager or Regional Vice President to remove any doubt. Managers above all else lead by example.
[ 44 ] While the plaintiff has explained the reason for her falsification of and submission of documents, for the reasons given above, at paragraphs 13, 18-21, I do not find her explanation to be reasonable or credible. Moreover, I note that even when she had finally obtained the attention of Manulife, which was the justification which she gave for submitting the falsified documents, she did not advise Manulife of the fact that Sara-Eve Dore was a phantom dependent who should be removed from her profile. Instead, inexplicably, she falsely advised Manulife that Sara-Eve Dore was her daughter. The submission of falsified documents, the confirming statement to Manulife, when they inquired about the claims, that Sara-Eve Dore was her daughter, her failure to come clean and explain why she had submitted falsified claims at two meetings with Costco during the investigation, caused Costco to lose trust in this manager, according to the testimony of Mr. Parent. I find that the plaintiff's behavior constituted conduct that goes beyond poor judgment to the root of the employment relationship, and is not compatible with the employer/employee relationship, given her position as a supervisor/manager.
[ 45 ] I find that the conduct of the Plaintifff in falsifying and submitting medical benefits claims forms, in lying to Manulife about Sara-Eve Dore being her daughter when asked, and in failing to forthrightly tell her employer when asked during the investigation that she had falsified the documents and her justification therefore, constituted conduct so fundamental to the employer-employee relationship and to her managerial position that it constituted cause for termination without reasonable notice or pay in lieu thereof.
[ 46 ] Given my finding, the plaintiff is not entitled to payment of bad faith or punitive damages.
Allegations of Discrimination
[ 47 ] The defendant has argued that in the event that I dismiss the plaintiff 's claim for wrongful dismissal, I need not determine the issue of breach of the Human Rights Code . It is the position of the plaintiff that this is part of the claim and must be determined. I treat this claim as separate from the wrongful dismissal claim and will deal with the issue below.
[ 48 ] Pursuant to the Ontario Human Rights Code , every employee has a right to equal treatment with respect to employment without discrimination and a right to freedom from harassment in the workplace because of disability. "Disability" is defined to include an injury for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act. Harassment is defined to mean “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Human Rights Code , R. S. O. 1990, c. H. 19, ss. 5 and 10 (1). The onus is on the plaintiff to prove discrimination.
[ 49 ] It is the submission of counsel for the plaintiff that the actions of the defendant, which the plaintiff termed as belittling, demeaning, bullying and harassing when she returned from her medical leave, constituted discrimination under the Human Rights Code . While the plaintiff testified that she felt as though her injuries had not been taken seriously by her employer, that her employer was not accommodating her, but rather was belittling her, the evidence indicates that she never raised the issue of such treatment with any of her supervisors, nor with Mr. Parent and Ms. Knocker at the time of the investigation. The evidence of her witness, Ms. Stewart, was that she felt good about Costco, that it was a great company to work for. She did testify that she overheard the plaintiff's supervisor, Brian Quigley, stating to the plaintiff when she brought in the chiropractor’s note that he needed a FAF. While she testified that the way in which he asked it would have caused her to be upset or to have taken it personally, she did not however testify that she found his interaction with the plaintiff to have been harassing, bullying or demeaning.
[ 50 ] Ms. Cavic’s testimony indicates that she felt that the treatment she received from her supervisor following her injury was insensitive and did not show concern for her well-being or her personal situation. However, the issue before the Court is whether the conduct described by the plaintiff constituted harassment.
[ 51 ] In the circumstances of this case, I find that the plaintiff has not met the onus on her of proving harassment within the meaning of the Human Rights Code . Based on the evidence before me, I do not find that the conduct of her supervisor, as described in her testimony, to be discrimination within the meaning of the Human Rights Code.
[ 52 ] Counsel for the plaintiff further argued, in his statement of fact and law, that, pursuant to the Ontario Workplace Safety and Insurance Act , where an employer terminates an employee within six months after return to work following a WSIB injury, the employer is presumed not to have fulfilled its obligations under the Statute. At the time of final submissions, counsel advised me that they had agreed that this argument would not be pursued due to WSIB jurisdiction.
[ 53 ] Based on all the foregoing, I dismiss the plaintiff's claims for wrongful dismissal and breach of the Ontario Human Rights Code.
Costs
[ 54 ] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown J.
Released: October 1, 2012
COURT FILE NO.: CV-11- 426638
DATE: 20121001
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Mykki Cavic Plaintiff – and – Costco Wholesale Canada Limited Defendant
REASONS FOR DECISION
Carole J. Brown J.
Released: October 1, 2012