Editor’s Note: Corrigendum released on January 18, 2013. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: 240/08
DATE: 2013/01/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY ANNA LOUELLE ENGLISH
G.W.J. Robson, for the plaintiff
Plaintiff
- and -
TRAVEL CENTRES CANADA LLP and TRAVEL CENTRES CANADA INC., TAMMY MARRIAGE and WILL BECKETT
K. R. Taylor, for the defendants TravelCentres Canada L.P., TravelCentres Canada Inc. and Will Beckett
Defendants
HEARD: September 25, 26, 27 & 28, 2012
GRACE J.:
[1] Two issues are at the core of Cindy English’s dispute with TravelCentres Canada L.P. (“TravelCentres”):[^1] first, in causing the proceeds of fundraising activities to be used for corporate rather than charitable purposes, was Ms. English guilty of misconduct or merely an error in judgment and second, if the former, was the misconduct sufficiently serious to warrant dismissal for cause?
A. The Events Leading up to Ms. English’s termination
[2] Ms. English was hired to work at the 730 Truck Stop in Cardinal, Ontario in 1993. In February, 2001 she moved to Woodstock, Ontario to help hire and train staff for a new location her employer was opening there.
[3] Her placement in Woodstock became permanent and she became an employee of a related company, 230 Truck Stop. She progressed from assistant to restaurant manager.
[4] TravelCentres purchased the Woodstock location in 2003 when the owner became insolvent. It agreed to employ Ms. English and agreed to respect the date her employment started in Woodstock.
[5] Ms. English performed her duties well. In December, 2006, she was promoted to the position of general manager.
[6] In that role, Ms. English was responsible for the day-to-day operations of a multi-service centre which offered food, convenience items, gasoline, diesel fuel, a laundry and mechanical services/repairs. Employing more than 100 staff, the Woodstock location generated gross revenue of approximately $70-$75 million annually.
[7] Ms. English earned an annual salary of approximately $65k and was a member of the employee group health and dental plans. While a performance bonus program existed, none of the financial milestones were reached during her tenure as general manager.
[8] Among the employees Ms. English supervised were restaurant manager Tammy Marriage, assistant restaurant manager Rebecca Sparks and kitchen manager Will Beckett. They feature prominently later in the chronology.
[9] Ms. English reported to TravelCentres’ head office near Cleveland, Ohio. Initially Tom Moore was her immediate supervisor. He was replaced by Dan Matuszewski in or around April, 2007. Mr. Matuszewski visited the Woodstock location from time-to-time and spoke with Ms. English by telephone regularly. They routinely discussed financial results and other issues as they arose.
[10] TravelCentres did not occupy all of the space it owned in Woodstock. Excess space was leased to a number of commercial tenants including NAL Insurance Inc. (“NAL”).
[11] As a result of that relationship, Ms. English came to know NAL employee Aaron Lindsay.
[12] NAL supported a children’s charity (the “charity”).[^2] In his testimony, Mr. Lindsay explained that NAL launched the Truckers For Wishes campaign to raise money for the charity.
[13] Ms. English decided that TravelCentres would also raise money for the charity’s cause.[^3]
[14] TravelCentres’ involvement took several forms. Donation boxes were placed at strategic locations within the Woodstock location. TravelCentres organized and conducted a garage/yard sale.[^4] It also offered candles for sale on one[^5] or two[^6] occasions. In each case, representations were made to staff and members of the public that monies were being raised for the charity.
[15] For example, the donation boxes were prepared for and distributed by the charity. Its name was prominently displayed. Signs were posted encouraging the public to buy candles because the proceeds were for the charity’s benefit. The garage sale was advertised in the June 15, 2007 edition of the Woodstock Sentinel-Review. The advertisement read:
WANTED: ITEMS donated for charity yard sale. All proceeds go to “Make-a-Wish” Foundation. Items can be dropped off at TA TravelCentres (formerly 230 Truck Stop) in the main building, 535 Mill St., Woodstock. All donations gratefully accepted.
[16] Ms. English readily admitted she likely drafted the advertisement.
[17] Approximately $1,500 was raised through the donation boxes, candle sales and the garage/yard sale. These efforts – and the collection of proceeds – were overseen by Ms. English in her role as general manager.
[18] Around the same time, Ms. English learned that NAL had agreed to participate in the 2007 Fergus Truck Show. NAL had agreed to rent a site at the event’s location in Fergus, Ontario. NAL used the show to raise more money for the charity through its Truckers for Wishes campaign.
[19] Mr. Lindsay approached Ms. English and asked TravelCentres to make a cash donation. Ms. English declined. However, she suggested TravelCentres might become involved in another way.
[20] Ms. English sought Mr. Matuszewski’s agreement. Mr. Matuszewski told Ms. English that he did not think TravelCentres should become involved but left the decision to her.
[21] Ms. English’s enthusiasm was unabated. She thought the event would generate significant goodwill for TravelCentres and decided to move forward.
[22] Ms. English and Mr. Lindsay developed a plan. Food would be offered for sale at NAL’s location during the Fergus Truck Show.
[23] After helping Mr. Lindsay decide on the menu, Ms. English agreed that TravelCentres would participate in three respects. First, it would order and supply the menu items: chicken wings and the carrot and celery sticks which were to accompany them. Second, its employees would receive the food in Woodstock and ready it for transport to the three day event. Third, TravelCentres would provide staff to finish preparing and to serve the food during the Fergus Truck Show.
[24] Ms. English alleged NAL agreed to reimburse TravelCentres for the food cost. The time and effort of TravelCentres’ was to be donated to the cause.
[25] Ms. English arranged for chicken wings to be supplied by Gordon Food Service (“GFS”). Ms. English advised Mr. Lindsay of the terms of the arrangement in a July 23, 2007 e-mail. In part she wrote:
Hi, Aaron!
We have the deal finalized about the Chicken Wings…GFS is giving us the wings for $37 off per case, and I’ve ordered 140 cases. That will give us 50,400 wings (or 8400 servings at 6 each). The cost will be $12,700. We have $1400 from the garage sale, plus whatever is in the donation boxes. Even though these wings are in a raw state and we will need to cook them, the sales rep from GFS is coming Wednesday afternoon and Thursday afternoon to help cook them…
The good news is that if we have leftover product that we’ve already cooked, she will sell it for us so that we don’t have to pay for any product that did not generate a profit!
Sound OK to you?
[26] Mr. Lindsay responded enthusiastically and added “If there is anything else you want me to do please let me know.”
[27] TravelCentres arranged for John’s Fruit & Vegetables (“John’s”) to supply the carrot and celery sticks. Lots of them: five hundred and fifty pounds of each item were delivered.
[28] The nightmare began. Imagine this scenario: kitchen staff and facilities already busy with the day-to-day activities of a busy restaurant are asked to deal, in short order, with a veritable mountain of frozen chicken wings and fresh vegetables.
[29] There was not enough freezer and refrigerator space to accommodate the food intended for the Fergus Truck Show.[^7] Delivery occurred so close to the beginning of the event that staff had to work long hours and at an exhausting pace to pre-cook – or blanch – chicken wings.
[30] Ms. English utilized her best efforts to underplay the situation. However, a clear and in my view accurate, picture emerged from the evidence Ms. Sparks and Mr. Beckett. The travel centre’s kitchen was overwhelmed. The quantity of product and the speed with which it had to be handled created a chaotic situation. As noted, there were enough chicken wings to feed 8,400 people. Ms. English acknowledged that TravelCentres received twice the vegetables she had anticipated.
[31] Finding enough staff, storage space and equipment to do the job was, to put it mildly, a challenge. There were so many vegetables that some had to be stored in a different building.
[32] The problems were just beginning. Transportation of the food was to have been arranged by NAL. That fell through. Ms. English testified that she did not learn of the problem until the expected reefer truck failed to appear.
[33] Ms. English found a benevolent customer to fill that gap. However, it took time to organize transportation and the Fergus Truck Show was already underway when the food arrived.
[34] Further obstacles arose while the food concession was being set up. Public health inspectors arrived. NAL’s space had not been designated as a food site. The necessary permit had not been obtained. There was no water supply. Other items – such as a hand sanitizer – were required.
[35] The deficiencies were rectified quickly and soon food was finally available for purchase at the NAL tent.
[36] Sales were dismal. Periods of bad weather, declining economic conditions and the events I have already mentioned were blamed. As noted, 140 cases of wings were shipped to TravelCentres by GFS. Only 16.5 cases – slightly less than twelve percent – were sold.
[37] That left 123.5 cases of unsold chicken wings: thousands of servings. Many had never left Woodstock. Those that had, returned. TravelCentres had in its possession more than 44,000 chicken wings.[^8]
[38] Storage and disposal of an unexpected and significant supply of chicken wings and cut vegetables were problematic. Some of the vegetables were used in the restaurant. A substantial portion had to be thrown out.
[39] Mr. Lindsay testified that he was unconcerned about the remaining chicken wings. He had interpreted Ms. English’s e-mail to mean that GFS had sold them on consignment: he believed those unsold could be returned to GFS even if cooked.
[40] GFS didn’t agree with that interpretation. Ms. English testified that she spoke to GFS’s sales representative. GFS was unable to assist in the sale or disposition of the surplus product. It expected – and ultimately received – full payment of its invoice subject to two small credits.[^9]
[41] This position was not consistent with Ms. English’s earlier quoted statement that GFS would sell any “leftover product that we’ve already cooked”. Yet, there is no evidence of any complaint by Ms. English.
[42] Movement of the remaining wings was not easy. Mr. Lindsay was able to find buyers for 14 cases of chicken wings. TravelCentres bore the burden of disposing of the rest.
[43] It was common ground that Ms. English told Mr. Matuszewski the Fergus Truck Show was a disappointment soon afterward. Did she mention the chicken wing catastrophe as Ms. English alleges? The answer is no.
[44] Ms. English’s version of events stands alone. Mr. Matuszewski denied knowing of an issue relating to chicken wings until December, 2007. I believe him.
[45] Mr. Beckett testified that Ms. English instructed staff to keep Mr. Matuszewski away from where chicken wings were stored. I accept Mr. Beckett’s testimony notwithstanding Ms. English’s position that Mr. Beckett’s allegations are not factual but a product of bitterness
[46] The version of events provided by Mr. Matuszewski is supported by other evidence. Had Mr. Matuszewski known that TravelCentres had inherited thousands of unsold chicken wings, matters would not have been allowed to drift as they did. The Woodstock location’s menu did not include chicken wings prior to the Fergus Truck Show. Under Ms. English’s watch, the product was not added to the restaurant buffet until October. There was no business reason for the delay. The holdup was a product of an effort to conceal the problem from Mr. Matuszewski.
[47] Further, had the issue been disclosed, one would have expected timely payment of the invoices GFS and John’s had delivered in July. Yet, they remained unpaid in October and the suppliers were pressing for payment from an otherwise attentive customer. I have no doubt Mr. Matuszewski did not know of that fact.
[48] Ms. English’s treatment of the GFS invoice is also strange. As noted, when Ms. English advised Mr. Lindsay she had ordered chicken wings from GFS she added, “we don’t have to pay for any product that did not generate a profit”. In fact, Ms. English provided full payment – without complaint.
[49] Only a portion of the GFS invoice was paid using TravelCentres’ funds. The rest of the money came from two sources: NAL and the fundraising efforts undertaken at TravelCentres’ Woodstock location.
[50] By cheque dated September 24, 2007, NAL paid TravelCentres $1,500 with respect to “wings (re Fergus)”. That amount was a product of a simple calculation: the number of cases consumed at the event (16.5) times the price per unit ($91 per case) charged by GFS. Mr. Lindsay testified that NAL was only obligated to pay for the chicken wings that were sold at the Fergus Truck Show.
[51] Ms. English provided contrary evidence. It was her position that NAL was obligated to pay for all of the chicken wings. She said she was disappointed with the amount of the payment. Yet, she did not communicate her displeasure to NAL.
[52] Approximately $1,500 was generated from the charity’s collection boxes, the garage/yard and candle sales. All of that money was paid to GFS. Ms. Sparks described the process of rolling coins from the collection boxes in the presence of GFS’s sales representative and her reaction when that money was used for chicken wings rather than charity.
[53] As noted the rest – or as I prefer, the shortfall, was funded by TravelCentres in October, 2007.
[54] Ms. English testified that she then instructed staff to take the remaining chicken wings into TravelCentres’ inventory and added the item to the restaurant’s menu.
[55] Although he could not say when he became aware, Mr. Matuszewski knew chicken wings had been added to the restaurant’s menu. He denied knowing there was any connection to the Fergus Truck Show. As already noted, he also denied knowing that there was a problem relating to chicken wings until December, 2007 when he became aware of customer complaints.
[56] In January, 2008, Mr. Beckett arranged to meet Mr. Matuszewski at his hotel. One of the topics covered was the chicken wings. Mr. Beckett said he asked for the meeting to ease his guilt. In cross-examination he elaborated. He said he felt badly about the quality of the product, how it had been paid for, that there was a “cover up” and with his participation.
[57] Soon afterward, Mr. Matuszewski contacted Ms. English. Aware of Mr. Beckett’s concerns and of customer complaints, a taste test was arranged.
[58] Mr. Beckett cooked some of the wings. Mr. Matuszewski, Ms. English and others sampled them. Ms. English called the wings “not too bad” in her underwhelming review. Mr. Matuszewski was unimpressed. He made inquiries and learned that some of the product had been thawed, cooked and then re-frozen. Food quality and safety concerns caused Mr. Matuszewski to instruct staff to throw out the remaining wings. Eventually that occurred.
[59] The saga took another turn. On January 17, 2008, Ms. Marriage was terminated amid allegations that she had understated food costs by overstating inventory. According to Mr. Beckett, the entries in question related to chicken wings.
[60] On January 21, 2008, a letter was sent from Ms. Marriage’s e-mail account. It was distributed to dozens of employees of TravelCentres and its parent.
[61] Co-written by Ms. Marriage and Mr. Beckett, the letter addressed food quality/safety concerns among other things. After the caption “THE CHICKEN WING FIASCO!!”, they wrote:
…The event was a flop and we were stuckf (sic) with 112 forty pound cases of thawed chicken wings bleeding all over the kitchen. We were told to try and make phone calls to sell them to other restaurants. Donna our GFS rep had agreed when ording (sic) to help us but that was on the basis that they were frozen and in there (sic) original condition. She said she could have sold them that way but since they were precooked that no one wanted to touch the risk factor. The wings that were left uncooked Will [Beckett] advised not selling as they sat out and then frozen so until they are used even still on a case to case…basis as they are probably not good and a health hassard (sic) to customers.
[62] Ms. Marriage and Mr. Beckett also addressed the payment of invoices. They added:
During all this crap she keep (sic) saying I hope Dan [Matuszewski] never finds out or he well (sic) fire me for doing this event even though he told me not too (sic). The part that bothers me the most is that all of us worked so hard, we worked overtime on weekends to had (sic) community yard sales advertising all proceeds from sales would go to the charity, and that no money went to the charity!! It all went to paying for the bills at GFS and John’s fruit. Even the little charity boxes with the pictures of the sick children, Rebecca [Sparks] was told to count it, roll it up and it was also put towards bills. After all the rebates etc any money left owing was posted to the restaurant and we inherited 100 cases of contaminated chicken wings at a much higher cost that (sic) they were purchased.
[63] Ironically, Mr. Matuszewski was meeting with Ms. English when the e-mail arrived. He started to read it aloud, thought better of it and excused himself. Other business was set aside. Ms. English became the focus.
[64] Mr. Matuszewski and Ms. English chatted briefly again that day. Ms. English was asked about and readily admitted using the proceeds from the sale of candles, the garage/yard sale and donation boxes on account of the chicken wing invoice. She told Mr. Matuszewski she had acted in accordance with arrangements made with NAL and at some point asked Mr. Matuszewski to contact Mr. Lindsay for confirmation.
[65] Later, Mr. Matuszewski reached Gary Lindsay – Aaron’s father – by telephone. Mr. Matuszewski testified that Gary Lindsay said he was busy preparing to leave on holiday but would speak to Mr. Matuszewski on his return.
[66] A more meaningful conversation seemed likely given an e-mail Aaron Lindsay sent Ms. English during the early evening hours of January 23, 2007. In part he wrote:
Gary [Lindsay] left a message for Dan [Matuszewski] to call him. He is going to advise him about all the effort that you put into Trucking For Wishes and that you help (sic) raise over $8,000 at Fergus.
[67] Gary Lindsay did not testify. Mr. Matuszewski’s version stands unchallenged.
[68] Mr. Matuszewski said he also spoke with five employees: Mr. Beckett, Ms. Sparks, store manager Michelle Argoso, truck service shop manager Nikki Harrison and restaurant server Linda Baker. All but Ms. Harrison offered information about the fundraising efforts and the use of the proceeds.
[69] Mr. Matuszewski shared the view expressed by others: funds solicited from the public for charity should have been used for that purpose only. Mr. Matuszewski was of the view that the integrity of TravelCentres had been compromised. Termination of Ms. English’s employment was recommended and he obtained the concurrence of TravelCentres’ vice-president, human resources.
[70] Ms. English and Mr. Matuszewski met again on January 22, 2008. Ms. English was told of the company’s decision. Her resignation was requested and tendered. On January 23, 2008, Ms. English rescinded her resignation after receiving a venomous e-mail from another former employee.
B. Was Ms. English terminated without cause?
[71] The legal principles are not in dispute. An employer has the right to terminate an employee for misconduct, disobedience or incompetence.[^10]
[72] The reason for termination in this case is alleged misconduct. The employer bears the burden of proving its existence and that the nature or degree warranted dismissal.[^11]
[73] The approach was explained by Iacobucci J. in McKinley v. BC Tel in these terms:
…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.[^12]
[74] The first question is whether any misconduct has been proven. TravelCentres position is a simple one. Representations were made to the public and staff that monies raised through the donation boxes, garage/yard sale and candle sales would go to the charity. They didn’t because Ms. English, as general manager, directed that the money be paid on account of chicken wings.
[75] Ms. English maintains she did nothing wrong. She explained her position to Mr. Matuszewski in an e-mail sent the day following her termination. In part she wrote:
I want to clear my name and my reputation…The allegations of ‘fraud’ in regards to the charity are absolutely false; I told you yesterday I did nothing dishonest and I stand by that. My intentions were to improve [TravelCentres’] reputation within the trucking industry as well as the local community and instead my own reputation is being brought into question.
[76] Ms. English’s position seems to be this: all of the monies collected from NAL’s various fundraising activities – whether they involved TravelCentres or not – were to be pooled. Expenses were to be paid first and the net amount was to be remitted to the charity. I have described the theory in this fashion because Ms. English suggested several times that she acted as she did to simplify accounting.
[77] With respect, Ms. English has attempted to construct an understanding which did not exist. I say that for two reasons.
[78] First, the suggested arrangement is inconsistent with what transpired. Had it existed, one would have expected Ms. English to at least account to NAL for all of the funds collected and disbursed and provide NAL with copies of the bills incurred, notably the invoices for chicken wings and vegetables. There is no evidence NAL saw, let alone was asked to pay, either invoice. On July 23, 2007, Ms. English advised Mr. Lindsay of the results of the garage sale. However, there is no evidence that Mr. Lindsay was advised of the amount collected through the donation boxes or candle sales.
[79] Second, NAL’s actions were inconsistent with any such agreement. Mr. Lindsay said he encouraged co-workers to buy cases of chicken wings because he felt badly for Ms. English. Two months after the event NAL made a payment on account of chicken wings but only for the 14.5 cases of chicken wings consumed there. Clearly, NAL did not accept the obligation Ms. English seeks to impose. Furthermore, Ms. English did not complain after NAL’s payment was received. She hid her disappointment. In my view, the pact she says existed is wishful not factual.
[80] I have not forgotten the previously quoted July 23. 2007 e-mail from Ms. English to Mr. Lindsay. After mentioning the quantity and cost of the chicken wings she had ordered she advised Mr. Lindsay that “We have $1400 from the garage sale, plus whatever is in the donation boxes.” Was Ms. English suggesting that the monies would be paid on account of the chicken wings? That interpretation would be possible if the e-mail ended there.
[81] However, it didn’t. In the next paragraph Ms. English advised Mr. Lindsay that “we don’t have to pay for any product that did not generate a profit!” because GFS had agreed to sell leftover chicken wings.
[82] In my view, Ms. English mentioned the garage sale proceeds because she was pleased with TravelCentres’ fundraising effort to that point and thought the Fergus Truck Show would build on the early success.
[83] As noted previously, Mr. Lindsay suggested in a January 23, 2007 e-mail that Ms. English had helped NAL raise $8,000 at the Fergus Truck Show. It should be noted that e-mail was sent six months after the event and one day after Ms. English’s termination. The timing is not coincidental.
[84] In fact, according to a September 22, 2011 letter from Make-A-Wish to NAL, NAL’s 2007 Trucking For Wishes campaign raised almost $25k. Mr. Lindsay described some of the activities it had undertaken: raffles, t-shirt sales, corporate donations and sponsorships. Clearly he felt badly about Ms. English’s fate. He testified that her involvement helped make NAL’s participation in the Fergus Truck Show a success. NAL continues to participate to this day. He said despite poor sales in 2007, many of the attendees fondly remember the year NAL offered chicken wings for sale.
[85] However, Mr. Lindsay’s testimony did not go further. He did not – and could not – suggest that Ms. English’s initiatives were part of a joint fundraising effort NAL spearheaded. While they had a common purpose – raising money for the charity – the donation boxes, the candle sales and the garage/yard sale were activities which were separate from the Fergus Truck Show. Importantly, Ms. English knew that donations of time, effort, money and property were made by TravelCentres’ staff and members of the public on the basis that their contribution would go to Make-A-Wish. Under Ms. English’s watch not a single penny found its way there.
[86] While I have no doubt that Ms. English was well intentioned when the fundraising activities commenced, her motivation changed. She mismanaged TravelCentres’ involvement in the Fergus Truck Show so completely that forecasted success was, instead, an abject failure.
[87] I can identify two reasons for what transpired. First, the entire debacle did not reflect well on Ms. English. She testified that the decision to sell chicken wings was made during a “brainstorming” session with Ms. Marriage and Mr. Lindsay. She said that the quantity of chicken wings ordered was based on a discussion with Mr. Lindsay. Ms. English suggested Mr. Beckett may have ordered the vegetables. The problems with transportation and at the site were blamed on Mr. Lindsay. Poor sales were attributed to weather and the economy.
[88] However, the blame game was not well played. I accept Mr. Lindsay’s testimony that he had no experience in the restaurant business. The 2007 Fergus Truck Show was NAL’s first attempt to sell food. It had no history of sales to help Ms. English estimate the quantity that might be required. Ms. English had extensive experience in the hospitality/food industry. Mr. Lindsay works in insurance.
[89] With good intentions, Ms. English offered to help NAL raise more money for charity by selling chicken wings. Mr. Lindsay relied on Ms. English and, with her consent, left the food issues to her except for transportation which he undertook unsuccessfully. That dependence is evident from the e-mail Mr. Lindsay sent to Ms. English at 649 p.m. on Monday, July 23, 2007. The arrangements she had made were favourably received.
[90] Matters seemed to be in hand. As noted, unfortunately they weren’t.
[91] Second, there were concerns with respect to the chicken wings themselves. The breakdown between frozen, refrigerated, blanched and cooked chicken wings that TravelCentres had in its possession is unclear to me.[^13] While downplayed by others, Mr. Beckett and Ms. Sparks were clearly troubled about food quality – and frankly, food safety.
[92] Ms. English compounded the initial problem by trying to work her way out of it while leaving Mr. Matuszewski in the dark. In doing so, she alienated staff, exposed customers to substandard – if not potentially unsafe – product and compromised the reputation and financial interests of her employer.
[93] Most importantly for the purposes of this decision, I am of the opinion that Ms. English’s decision to use the proceeds of the fundraising efforts to partially satisfy an outstanding invoice was more than an error in judgment. As noted earlier, Ms. English acknowledged that she likely authored the June 15, 2007 advertisement with respect to the upcoming garage/yard sale. It proclaimed that “All proceeds go to “Make-a-Wish” Foundation.” As also noted, the bulk (about $1,400) of the monies raised came from that source. The proceeds from the other initiatives were supposed to go to same destination. The use of funds for another purpose was improper.
[94] To be clear, Ms. English’s conduct was dishonest and constituted misconduct.
[95] I turn to the issue of consequences. Was dismissal without notice justified or was some lesser sanction appropriate? I return to McKinley v. BC Tel where Iacobucci J. wrote:
Absent an analysis of the surrounding circumstances of the alleged misconduct, its level of seriousness, and the extent to which it impacted on the employment relationship, dismissal on a ground as morally disreputable as “dishonesty” might well have an overly harsh and far-reaching impact for employees. In addition, allowing termination for cause wherever an employee’s conduct can be labeled “dishonest” would further unjustly augment the power employers wield within the employment relationship.[^14]
[96] There are facts favourable to Ms. English. Her seven year employment record with TravelCentres and 230 Truck Stop appears to have been otherwise unblemished. Her position as general manager was well-earned. The amount of money in issue – approximately $1,500, is, indeed, modest. Ms. English did not seek or receive any monetary benefit. She readily disclosed what had been done when asked by Mr. Matuszewski on January 21, 2008.
[97] On the other hand, Ms. English occupied the most senior position in Woodstock. She supervised more than 100 employees. Expectations were high and rightly so. TravelCentres had every right to expect and require that Ms. English consistently and without compromise act in good faith and honestly.
[98] Ms. English had those same expectations of others. Only days before, Ms. English had recommended that Ms. Marriage be terminated due to accounting irregularities. Ms. English clearly recognized the importance of the attributes I have mentioned.
[99] Mr. Matuszewski was rightly concerned that Ms. English failed to acknowledge any error. Even now she does not seem to appreciate the fact that representations Ms. English caused to be made induced others to contribute time and money for the purpose of benefitting the charity. Even now she does not appear to appreciate the fact that her actions diverted the benefit to GFS – a chicken wing supplier. Until Mr. Matuszewski intervened nothing had been or would have been paid to Make-A-Wish as a result of fundraising efforts undertaken at TravelCentres’ Woodstock location. After Ms. English’s termination, TravelCentres tried to make things right. It attempted to calculate the amount that had been donated and on January 29, 2008 paid that amount ($1,500) to Make-A-Wish.
[100] While Ms. English tried to paint the Beckett/Marriage e-mail and attachment as nothing more than a poisoned communication sent by a terminated employee and her partner in crime, I am of the view that its description of the aptly phrased “chicken wing fiasco” is substantially accurate. Ms. English was less than forthcoming with her superior and disclosure was made only after the circumstances were brought to Mr. Matuszewski’s attention by others.
[101] Considering all of the material facts, it is my view that Ms. English’s conduct undermined and was incompatible with her employment relationship. TravelCentres’ confidence in Ms. English was irreparably compromised. A chasm between Ms. English and employees’ under her supervision had clearly formed.[^15] A prompt and definitive response was appropriate. Mr. Robson forcefully submitted that TravelCentres’ response was disproportionate. He emphasized that termination is the “capital punishment” of the employment relationship and justified only by misconduct of the most serious kind.[^16] He maintained that another response – demotion perhaps – was proper.
[102] With respect, I disagree. TravelCentres was left in an untenable position. The seriousness of the transgression is not appropriately measured by the amount of money involved. As is evident from the entire chronology it was far greater. Ms. English remained silent when she should have spoken. She tried to protect her reputation through deceit. In the process, Ms. English caused the workplace to fracture and destroyed the very foundation for her employer’s trust. Termination of Ms. English’s employment was justified. Cause has been established.[^17]
C. If required, what was the appropriate notice period?
[103] Counsel for the parties addressed the non-exhaustive list of factors set forth in Bardal v. The Globe and Mail Ltd.[^18] including Ms. English’s age (41 at the time of termination), length of service (approximately 5 years with TravelCentres and two years with 230 Truck Stop), character or level of employment and the availability of similar employment having regard to Ms. English’s experience, training and qualifications.
[104] Mr. Robson submitted the appropriate period was 12 and Ms. Taylor, counsel for TravelCentres, 6 months.
[105] Not surprisingly I have concluded the appropriate period is between those numbers. The one proposed by TravelCentres fails to give sufficient consideration to Ms. English’s role and responsibilities. That advanced on behalf of Ms. English fails to give sufficient weight to Ms. English’s age at termination and length of employment.
[106] In my view, the appropriate period would have been 8 months. Had I concluded Ms. English had been wrongfully dismissed, damages would have been awarded based on her annual salary of $65,000 and the contribution TravelCentres would have made on her behalf to the group health and dental benefit plan.
[107] TravelCentres alleged that Ms. English failed to mitigate her damages.
[108] Ms. English provided a typed list of dates and employers. She did not provide a single cover letter, e-mail or note of a telephone conversation. The evidence did not include a single reply. In cross-examination, Ms. English conceded that she did not actually apply to all of the employers listed.
[109] Nonetheless, in argument Ms. Taylor conceded that the mitigation issue was not being pursued if the period of reasonable notice was found to be 6 months or less.
[110] A lengthy gap from August 28, 2008 until January 23, 2009 appeared on Ms. English’s list. Ms. English testified she was unable to continue her job search during that period due to health concerns. Ms. English reported undergoing a surgical procedure on October 28, 2008 followed by a period of convalescence.
[111] Given TravelCentres’ concession and the fact it pursued the issue of mitigation half-heartedly at trial, I am unwilling to conclude that TravelCentres’ satisfied the burden of proving a failure to mitigate despite the fact Ms. English’s evidence was thin.
D. Other Issues
[112] The defamation claim was not pursued at trial.
[113] In light of my conclusion that the wrongful dismissal claim fails, it follows that the claims for damages for mental distress, “bad faith”,[^19] aggravated, exemplary and punitive damages must also fail. Ms. English has not proven that TravelCentres acted in an unfair, untruthful, insensitive, high-handed or otherwise inappropriate manner.
[114] To the contrary. Insofar as Ms. English is concerned, Mr. Matuszewski was faced with an unexpected and difficult situation. He sought information and acted swiftly, decisively but in a measured way and with regret. While I have no doubt that Ms. English suffered emotionally following her dismissal, responsibility does not lie with her employer. Woodstock employees were told simply that Ms. English resigned January 22, 2008. No reason was given. While Ms. English believed “fraud” was implicit in the allegations made against her, she conceded the word was never mentioned.
E. Conclusion
[115] For the reasons given, I conclude that Ms. English was not wrongfully dismissed. The action is dismissed.
[116] If the parties are unable to resolve the issue of costs they may make written submissions not exceeding five pages exclusive of offers to settle, supporting dockets and relevant authorities. The parties are asked to provide those submissions as follows: those of TravelCentres by February 14, 2013 and those of Ms. English by February 28, 2013. They may be provided to me through Judges’ Administration, Court House, 80 Dundas Street, 12th Floor, Unit “K”, London, Ontario, N6A 6B2.
Justice A. D. Grace
Released: January 17, 2013
COURT FILE NO.: 240/08
DATE: 2013/01/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY ANNA LOUELLE ENGLISH
Plaintiff
- and -
TRAVEL CENTRES CANADA LLP and TRAVEL CENTRES CANADA INC., TAMMY MARRIAGE and WILL BECKETT
Defendants
REASONS FOR JUDGMENT
GRACE J.
Released: January 17, 2013
COURT FILE NO.: 240/08
DATE: 2013/01/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY ANNA LOUELLE ENGLISH
G.W.J. Robson, for the plaintiff
Plaintiff
- and -
TRAVEL CENTRES CANADA LLP and TRAVEL CENTRES CANADA INC., TAMMY MARRIAGE and WILL BECKETT
K. R. Taylor, for the defendants TravelCentres Canada L.P., TravelCentres Canada Inc. and Will Beckett
Defendants
HEARD: September 25, 26, 27 & 28, 2012
GRACE J:
C O R R I G E N D U M
[117] Paragraphs 104 and 109 of my reasons for judgment released in this matter on January 17 are amended as follows:
“Mr. Robson submitted the appropriate period was 12 and Ms. Fraser, counsel for TravelCentres, 6 months” to Mr. Robson submitted the appropriate period was 12 and Ms. Taylor, counsel for TravelCentres, 6 months.
“Nonetheless, in argument Ms. Fraser conceded that the mitigation issue was not being pursued if the period of reasonable notice was found to be 6 months or less” to Nonetheless, in argument Ms. Taylor conceded that the mitigation issue was not being pursued if the period of reasonable notice was found to be 6 months or less.
Justice A. D. Grace
Released: January 18, 2013
[^1]: Ms. English’s former employer is incorrectly described in the title of proceedings as Travel Centres Canada LLP. At the beginning of trial I was advised that no relief was sought against TravelCentres Canada Inc. and that the action had been discontinued against Tammy Marriage. At the beginning of the second day of the trial and on consent, the action was dismissed against Mr. Beckett without costs.
[^2]: Make-A-Wish Foundation was the charity NAL supported.
[^3]: Mr. Lindsay said he asked TravelCentres for a $500 donation. In return, he offered to place TravelCentres’ logo on a trailer to be displayed at the Fergus Truck Show. According to Mr. Lindsay, Ms. English offered to do more. Ms. English said she was asked if TravelCentres would pay $5 k to become a diamond sponsor of the Fergus Truck Show. After speaking with Mr. Matuszewski, she declined but offered to help in other ways I will address in my reasons.
[^4]: There was some debate whether there was a second garage sale or whether a second attempt was made to sell items which remained unsold the first time. I don’t believe anything turns on this point of disagreement.
[^5]: That was Ms. English’s evidence.
[^6]: That was Rebecca Sparks’ evidence.
[^7]: According to Mr. Beckett, only 80 of 140 cases of chicken wings could be accommodated in the freezer and refrigerator.
[^8]: There were 360 chicken wings in a case.
[^9]: They aggregated approximately $239.
[^10]: Dowling v. Ontario (Workplace Safety & Insurance Board) (2005), 2004 CanLII 43692 (ON CA), 246 D.L.R. (4th) 65 (Ont. C.A.); Geluch v. Rosedale Golf Association, Ltd., 2004 CanLII 14566 (ON SC), [2004] O.J. No. 2740 (S.C.J.).
[^11]: Ibid. at para. 85.
[^12]: 2001 SCC 38, [2001] 2 S.C.R. 161 at para. 57.
[^13]: Ms. English said she thought about 1/3rd of the wings were blanched for the first and 1/6th for the second day of the event.
[^14]: Supra, note 12 at para. 56.
[^15]: Ms. Sparks outlined why she had lost confidence in Ms. English. I accept her testimony. She was not alone.
[^16]: Puhl v. Katz Group Canada Ltd., [2008] O.J. No. 66 (S.C.J.) at paras. 83-84; Roe v. Schneider National Carriers Inc., [2006] O.J. No. 94 (S.C.J.) at paras. 29-30; Hill v. Dow Chemical Canada Inc., 1993 CanLII 7097 (AB KB), [1993] A.J. No. 531 (Q.B.) at paras. 12-13.
[^17]: Agosta v. Longo Brothers Fruit Markets Inc., 2006 CarswellOnt 3128 (S.C.J.) at para. 82; Poirier v. Wal-Mart Canada Corp., 2006 CarswellBC 1876 (S.C.) at para. 68.
[^18]: (1961), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (H.C.J.) at 145.
[^19]: The claim was based on Honda Canada inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362 at para, 57