COURT FILE NO.: CV-11-422899
DATE: 20131105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dunstan Morgan
Plaintiff
– and –
Vitran Express Canada Inc.
Defendant
Christine Davies & Sarah Molyneaux, Counsel for the Plaintiff
Thomas A. Stefanik, Counsel for the Defendant
HEARD: September 17, 18, 19, 20 and 23, 2013
REASONS FOR JUDGMENT
Madam Justice D.A. Wilson
[1] The Plaintiff, Dunstan Morgan [“Morgan”], brings this action against his former employer, Vitran Express Canada Inc. [“Vitran”] for a declaration of constructive dismissal and claiming damages that flow from the dismissal. The Defendant denies that the Plaintiff was terminated and argues that even if there was constructive dismissal, the Plaintiff was obliged to accept the new position that was offered to him and he has suffered no damages.
BACKGROUND
[2] The Plaintiff was born in 1957 and is currently 56 years of age. He is married with three children and lives in Brampton. Morgan has a degree in science from the University of Western Ontario as well as a diploma in marketing from George Brown College.
[3] After completing his education in 1982, Morgan worked for Cottrell Transport until 1984. He joined TransWestern Express which was a small transportation company that picked up freight throughout Ontario and shipped it to other parts of Canada. Morgan started with TransWestern as an operations clerk, which was essentially a clerical job that involved securing the bills from the drivers and assisting the men on the dock in weighing their loads.
[4] The Plaintiff was the operations coordinator for a brief period of time and in 1986, he was promoted to the position of dock supervisor. This job involved directing the traffic flow, assigning tasks to the workers on the dock and supervising them, auditing and inspecting loads of cargo and watching the loading and unloading of the freight from the box cars. The job of dock supervisor was managerial although it also included some clerical functions. TransWestern was acquired by Vitran in 1995 and there was a merger of the 2 companies.
[5] Morgan worked the afternoon shift from 3:30 until midnight Tuesday through Saturday. There were between 3-5 other dock supervisors who worked the afternoon shift with him and together, they supervised approximately 20 men who worked on the dock plus additional 10-15 part time workers. The dock workers had to ensure that the freight that arrived in the terminal was in accordance with the information on the shipping documents and that there was no damage. The freight had to be stored. The dock workers had to ensure that the freight that was to be shipped was loaded properly and efficiently and if there was a dangerous commodity that was being shipped or stored, they had to confirm that it was done appropriately.
[6] While at Vitran, Morgan applied for other positions. In 2002 and again in 2006 he applied for the job of Human Resources Manager, but he was not successful. In 2005 or 2006, he applied for the position of dispatch manager, which was a level about dock supervisor. Again, his application was not successful.
[7] Sometime in the mid-2000’s, issues arose concerning Morgan’s performance at work. The Defendant alleges that he made clerical errors and that he failed to exercise his managerial functions properly. The Plaintiff asserts that he was blamed for errors that were commonly made by other workers. In June 2010, Morgan underwent testing arranged by Vitran and was advised that his personality was not suited for the job of dock supervisor. In September 2010, the Plaintiff was offered the position of freight analyst, which had been created for him. The Defendant asserts that this was a lateral move with the same compensation; the Plaintiff submits that the freight analyst job was clerical in nature with no supervisory duties and for him to accept it was humiliating. Morgan states that the unilateral change in his employment made it impossible for him to continue working for Vitran and constituted constructive dismissal.
THE EVIDENCE
Dunstan Morgan
[8] Morgan testified that he enjoyed the fast paced environment of working on the dock and the camaraderie between the men. He found every day was a different and brought a new challenge.
[9] After the merger between the two companies, the volume of work increased dramatically. The vast majority of the shipments were for western Canada, which was the area that he was responsible for. Morgan liked being busy and he had to make decisions about how the equipment was utilized for the various loads. The feedback from Vitran in the late 1990’s was positive and no concerns about his work were voiced.
[10] According to Morgan, the problems started in 2003 or 2004 when Ken Grout was promoted to shift manager and he had to report to Grout. Morgan was blamed for mistakes, regardless of his involvement. According to the Plaintiff many of the errors attributed to him were standard in transportation companies. Nonetheless, Morgan continued to be blamed for problems that he had no role in. Contained in exhibit 1 are copies of various e-mails from Grout and other managers to Morgan criticizing his performance. In Exhibit 1 are also notes Morgan made in response to these allegations, along with his e-mails to his managers with his explanations for the errors.
[11] In November 2006, Morgan was called into the office where he met with Bob Graham [branch manager] and Dave Ferguson [operations manager]. He was told of various errors he made which had cost the company money. Morgan felt intimidated and although he tried to offer an explanation during the meeting, it was not well received by the managers. Consequently, he drafted a letter to Graham and Ferguson dated December 15, 2006 [Exhibit 1, tab 5]. Morgan confirmed his commitment to the company and the importance of his job to him.
[12] In January 2007, Morgan received his first negative performance appraisal. He was told by Grout that he was not doing his job properly and no-one wanted to work with him. Grout noted on the appraisal form that his performance was below standards and substantial improvement was needed. He was advised that he was under review. Morgan described the meeting with Grout as “bizarre” with Grout acting in a confrontational, aggressive fashion. His notes of the meeting are contained in Exhibit 1, tab 6.
[13] In June 2007, he received a letter from Bob Graham advising that Morgan’s job performance was not up to standards and there were going to be monthly meetings to review his progress, commencing in August 2007. According to the Plaintiff, these monthly meeting never occurred. He tried to ensure that no errors were noted and made some suggestions for improvement. Furthermore, he tried to avoid appearing adversarial. However, all of his efforts were met with rejection.
[14] By this point, Morgan had concerns about his job with Vitran; he felt that management was no longer supportive of him and things had changed at the workplace. He had 3 children attending university and he was worried about the prospect of being unemployed. Consequently, he applied for a part time job to supplement his income and also to provide him with a job to fall back on should something happen at Vitran.
[15] In October of 2007, he secured a job with Carillion at the Brampton Hospital managing materials. This was a part time job and initially, he worked 4 hours per day, from 7:00 am to 11:00 am 3 or 4 days a week. He continued to work the afternoon shift at Vitran 5 days per week. He testified that he did not find this difficult or tiring and that he had informed David Khan, his superior, about the part-time job. No-one at Vitran ever questioned him about his other job. He denied there was any relationship between his working at Carillion and the dissatisfaction expressed by management at Vitran concerning errors made.
[16] In March 2008 there was an incident involving a trailer that was not roadworthy and the legs on it collapsed. Morgan testified that the driver ought to have been fired; instead, he was issued a written reprimand and a disciplinary letter by Grout for failing to protect the company’s equipment. As well, in the meeting, Grout was rude to him and treated him in a demeaning fashion. Morgan sent an e-mail dated March 13, 2008 [Exhibit 1, tab 10] confirming the events and the inappropriateness of Grout’s conduct.
[17] In early January 2009, Morgan’s mother died in the United Kingdom and he was required to bury his mother in Africa, so he had to leave. He told Ferguson that he needed 2-3 weeks’ vacation. While he was in the United Kingdom, his pay cheque was not deposited into his bank account. When he returned to work at Vitran, he was advised that he needed to provide a death certificate to substantiate his absence. This was devastating to Morgan, given his length of service to the company.
[18] In May 2009, the Plaintiff received a letter from Dave Ferguson notifying him of a 2 day suspension. This was the first time he had ever been suspended and he had not even been apprised of the incident that gave rise to the suspension. He sent Dave Ferguson an e-mail dated May 26, 2009 explaining what had transpired [exhibit 1, tab11]. As well, Morgan noted that he had limited support, having lost his lead hand. He wrote, “Forgive me if I am wrong but it is as if I have been left to my own devices and people in my management group are almost waiting for me in particular to slip up. Real or imagined this is the perception I am left with.” There was no response to his e-mail.
[19] In December 2009, he was called into a meeting with Ferguson, Graham and the Human Resources manager, Heidi Saccucci. He was given a document titled “Affirmative Corrective Action” [exhibit 1, tab 12]. He was told that his job performance was not up to standards and corrective action had to be taken. Attached to the letter was a “Chronologic Performance Summary” from 2004 up to 2009. This summary listed various errors that were imputed to Morgan. Many of these alleged mistakes had never been brought to the Plaintiff’s attention at the time they occurred.
[20] During this meeting, Morgan was advised of the expectations of the company, which were vague and general. No concrete solutions were suggested to him as to how to meet the expectations of his superiors or how to improve his performance as a dock supervisor. Morgan was advised that David Khan would “shadow” him for a couple of hours 3 days per week and this would assist in improving his functioning. The letter with the affirmative corrective action plan stated that his participation in the retraining was mandatory and that if there was no improvement, they would take further steps, which might involve finding another job within the company that was more in keeping with his skills and abilities. If such a position were not available, the letter indicated the company might terminate his employment for cause.
[21] Morgan was devastated. The meeting was adversarial and he was intimidated by Graham and Ferguson. On December 8, 2009, he sent Graham an e-mail addressing the incidents set out in the letter and confirming that he would participate in the plan. He did not receive a response to his e-mail.
[22] Morgan felt that he was the only employee at Vitran who was being treated in such a critical fashion; he was being isolated. He did not think it fair that he had to participate in a process that belittled him but he felt that he had to or he would lose his job. Morgan was unaware of any other employee who was placed on corrective action or had to be shadowed by another worker.
[23] The job shadowing did not occur as anticipated. David Khan watched him from a distance but did not work alongside him and never offered any comments or suggestions. Morgan found this shadowing uncomfortable and upsetting, given that he had been doing the same job for 25 years. It went on for a month from December 2009 to January 2010. He was never advised when it was over nor was he given any feedback.
[24] In April 2010, Morgan was summoned to the office by Graham and given a letter dated April 29, 2010 [exhibit 1, tab 17]. The letter repeated various incidents where errors had been made by Morgan. Further, he was criticized for the dock workers taking excessively long breaks. The letter closed by noting, “Dunstan, in all I have to let you know that you have not reached the standard that we were expecting when we started this process at the first of the year. Considering your experience and knowledge you need to eliminate the errors and increase the productivity.” Morgan testified that during the meeting, Graham was angry and aggressive. Morgan said the various incidents had already been dealt with and that he felt he was being isolated and singled out when he had nothing to do with many of the complaints.
[25] Morgan sent an e-mail dated May 8, 2010 [exhibit 1, tab 18] to Graham responding to the various allegations made against him in the letter. He did not receive a response to his e-mail. He also sent a similar e-mail to Ferguson [exhibit 1, tab 19] explaining his view of the situation.
[26] In early June 2010, Morgan injured his ankle while closing a door on the dock. Although he was limping as a result of the injury, he continued to work as it was busy. When the swelling did not subside after a number of days, he went to his doctor’s and was advised to take some time off work. He called Ferguson and told him he would not be at work due to the ankle injury. He returned after a week and was advised he needed to file a WSIB claim.
[27] Upon his return to work, he was asked to go to Graham’s office. Khan was at the meeting. He was advised by Graham that he had reviewed the surveillance tapes of the time the Plaintiff said he injured his ankle on the dock and he could find no evidence of such an event occurring. Graham was angry and told Morgan he would fight the claim, which he described as “bogus”. Morgan was upset and told Graham and Khan that he was a supervisor and would not make up an injury. He told Khan that he had witnessed him limping. While Khan agreed with this, he said that he did not know anything about an injury on the job. Morgan sent an e-mail [exhibit 1, tab 23] to Graham and Khan confirming what had transpired at the meeting and asserting the validity of his workplace injury. He did not receive a response to this e-mail.
[28] In June, 2010 at the insistence of Vitran, Morgan underwent skill and personality testing done by an independent company. He was subsequently called into a meeting with Graham, Saccucci and Ferguson in July. The test results were reviewed and he was advised that he did not meet the requirements for the job of a dock supervisor. He was not given the full report with all of the test results; but he was advised that he was unable to work in a fast paced environment, that he needed structure around him and that he was inaccurate. Graham said the company had limited resources and there was no other position that Morgan could perform.
[29] Morgan was very upset following the meeting. He could not comprehend how he could be told he did not have the skills to do a job that he had been doing for 25 years. He sent an e-mail to Saccucci, Graham and Ferguson on July 19, 2010 [exhibit 1, tab 27] in which summarized what had been said at the meeting. He also sent an e-mail to Graham setting out his perception of what had transpired: that he had asked for help on the dock and this had been denied; that the explanations he had provided to his superiors regarding errors had been ignored; that the volume of freight had increased while the staff had decreased; that he had been isolated and that he felt that he was constantly being watched, monitored, shadowed and reported on. Morgan concluded his e-mail by advising Graham that the treatment had resulted in a negative impact on his health. Graham did not respond to the e-mail.
[30] Morgan was asked in cross-examination whether he was critical of his supervisors for their failure to respond to his various e-mails and he responded that he was. He expected them to answer his e-mails, even if their response was to affirm that their position had not changed. He agreed that in his e-mails to Vitran, he regularly stated that he wished to continue working in his position as dock supervisor, despite the unfair manner in which he was being treated.
[31] In September 2010, Morgan was called into a meeting with Graham, Ferguson and Saccucci. He was told that his performance was unsatisfactory and that he was not suited for the job he was performing. A new position had been created, that of a freight analyst, which was a lateral move, with the same salary. Morgan understood that the job was to supervise 2 part-time workers who measure boxes. This was very different than the job of dock supervisor which was integral to the operation of the company. The dock supervisor made the decisions about the freight and had 25 men under his control. In his view, the freight analyst position was not a management position; it was a job with less importance, more of a clerical nature. Morgan was told that he had to start the new position immediately; he was not given an option.
[32] The Plaintiff was embarrassed to admit that he would no longer be a dock supervisor. He was reluctant to tell his wife about the change. He trained most of the men on the dock and he would have to face them in a lesser role. He loved the job of dock supervisor: he was able to make decisions; he liked the fast paced environment; he worked well with the men on the dock and was respected by them; and as a team they moved a huge amount of freight. Although he had been told the compensation was the same, he could not participate in the supervisor incentive plan [“SIP”], although he acknowledged that Graham said he would be made “whole”. Also, he would have to report to Graham who had deemed him a liar and clearly had no confidence in his abilities. He left the meeting and felt physically ill.
[33] Morgan felt he could not return to Vitran because he had been removed from a job he had been doing for 25 years and the new job was not equivalent; he felt humiliated and depressed. He called Khan and left a message advising that he would not be at work because he was ill. He saw his family doctor and was referred to a psychologist. He commenced treatment in October, initially on a weekly basis and then monthly for approximately a year.
[34] The Plaintiff retained counsel and his lawyer sent a letter dated Oct 1, 2010 [exhibit 1, tab 33] advising the company’s treatment of him constituted constructive dismissal. Vitran responded by letter dated October 5, 2010 demanding that he report to work October 12, 2010. Eventually, Vitran agreed to pay Morgan using sick days and vacation until October 22, 2010 and they insisted that he return to work as a freight analyst by that date. Morgan determined it was impossible for him to return to work at Vitran as a freight analyst for various reasons: the environment was intolerable; the manner in which he was treated by his supervisors was unacceptable; the new position carried with it no authority and was clerical in nature; and he would be humiliated in front of men he used to supervise.
[35] Morgan looked for employment in middle management at firms that did transportation, logistics, warehousing and distribution. He submitted numerous applications for employment but was unsuccessful. He secured additional hours at the hospital. He has applied for different jobs at the hospital but to date has been unsuccessful. He expressed no regrets for not accepting the freight analyst position at Vitran. That job was never posted internally at Vitran. Morgan testified that given the environment and the lack of confidence expressed by the people he would have had to report to, it was impossible to continue on in that role.
[36] In my view, Morgan was a credible witness who answered questions honestly. He struck me as a man with a strong work ethic who derived feelings of satisfaction from performing his job well.
Geoffrey Wilkinson
[37] Geoffrey Wilkinson [“Wilkinson”] commenced working at Vitran in June 2000, initially as a mailroom clerk. He received a serious of promotions and was a dock supervisor in 2006 and a shift manager from 2007 to 2008 when he left the company. Wilkinson was familiar with Morgan as their shifts overlapped while he was an operations clerk and the Plaintiff was a dock supervisor.
[38] Wilkinson testified that the Plaintiff was a dedicated, hard-working man who was always pleasant on the job. Mistakes such as writing the incorrect container number on shipments was a fairly routine occurrence that was commonly made. Wilkinson stated that the list of errors contained in the letter from Vitran dated December 3, 2009 [exhibit 1, tab 12] were not unusual and had been made by other dock supervisors.
[39] I found Wilkinson to be a straight forward witness, whose evidence was credible. He was an independent witness as he was neither a friend of the Plaintiff nor was he an employee of the Defendant.
Robert Graham
[40] Robert Graham [“Graham”] was the branch manager at Vitran and the operations manager, Dave Ferguson, reported to him. The dock supervisors reported to the 2 shift managers, who reported to Ferguson. In 2010, David Khan was the shift supervisor for the Plaintiff and Khan had replaced Grout. At that time, on the afternoon shift, there were 22 dock workers and 3 dock supervisors. Supervisors were responsible to ensure that the freight was moved according to schedule, in an efficient manner and without damage.
[41] In December 2009, Graham sent a letter to Morgan [exhibit 1, tab 12] which he had composed along with Saccucci in order to address the performance issues that had arisen with the Plaintiff. There was a meeting at which these concerns were discussed with Morgan and then he was given the letter. It was decided to have the shift manager, David Khan, shadow the Plaintiff during his shift to determine what was causing the errors to be made. Graham conceded that he could not dispute that Khan never provided any feedback to Morgan after shadowing him.
[42] Graham composed the chronological performance summary from 2004-2009 which is included with the letter. He testified he obtained the information about the mistakes from reviewing “files”.
[43] Graham acknowledged receiving the letter dated December 8, 2009 from Morgan following the meeting, in which he set out his response to the allegations concerning his performance. Graham stated that he believed that Morgan acknowledged there were issues with his work at Vitran and he accepted responsibility for certain mistakes but not others.
[44] Graham sent a further letter to the Plaintiff on April 29, 2010 [exhibit 1, tab 17]. In that correspondence one of the issues that he identified was the fact that the dock workers under Morgan were taking excessive breaks. He held the Plaintiff responsible for this infraction because as dock supervisor, one of his duties was to ensure that the workers returned from their breaks on time. Graham spoke to the other 2 dock supervisors about this particular issue but did not send them anything in writing. His explanation for this was the fact that management was dealing with Morgan on other issues as well. He could not recall what the Plaintiff’s response was to the issue of the excessive break time of the workers he was supervising.
[45] In the various e-mails from the Plaintiff Graham acknowledged that Morgan noted that he felt that he was being watched and that his superiors were waiting for him to make a mistake. Graham could not recall whether Vitran addressed this concern specifically and he did not remember having a conversation with the Plaintiff on this point.
[46] In June 2010, an issue arose concerning the Plaintiff asserting that he had injured his ankle on the job. Graham watched the videos from the dock area and he did not see any indication of Morgan sustaining an injury. He did not speak to Morgan about the incident nor did he ask anyone else at Vitran for their information. He met with Morgan and Khan and he told the Plaintiff that there was no evidence of him injuring himself.
[47] Morgan sent an e-mail dated June 21, 2010 following this meeting [exhibit 1, tab 23]. Graham testified at the trial that most of what is contained in the e-mail is true. He acknowledged that he told Morgan he thought his injury was “bogus” and that he would fight any WSIB claim; he denied that he threatened him or intimidated him at any time. He did agree under cross examination that he was frustrated and that he thought the Plaintiff was lying. Khan had sent an e-mail to Ferguson dated May 11, 2010 [exhibit 1, tab 20] in which he stated that the Plaintiff was “economical with the truth”. Graham testified that he did not share that view but he acknowledged that he did not believe him about the workplace injury.
[48] Following the testing that Morgan undertook at Vitran’s request, Graham met with him along with Ferguson and Saccucci. The Plaintiff was told that he was not suited for the job of dock supervisor and that they would look for other positions in the company that would be more compatible with his strengths. Graham believed that Morgan’s personality was not well suited to stressful situations and working on the dock with the union workers could be difficult. Graham denied that Morgan was ever on a “hit list” or targeted in any way. However, he agreed that the test results [exhibit 1, tab 21] described Morgan as accurate, precise and logical, which are qualities that a dock supervisor ought to possess.
[49] There was a further meeting with Morgan on September 28, 2010. Graham sent an e-mail on September 30 to Saccucci and Ferguson to summarize the meeting [exhibit 1, tab 32]. Another position had been identified at Vitran that was felt to be appropriate for Morgan: freight analyst. Graham had been involved in developing this position and he believed the Plaintiff’s experience in the industry and personality would be assets in the job. The freight analyst was responsible for ensuring that the 2 cubers who prepared the loads and measured the freight were doing their job properly so as to maximize the company’s profitability. The job description is located at exhibit 1, tab 30. Graham sent an e-mail to Saccucci and Ferguson [exhibit 1, tab 32] confirming the meeting and that Dunstan was to assume the new “role” October 4, 2010.
[50] Graham felt the position was presented to Morgan in a positive light, and that it was a managerial role, which other managers had been doing. It was a lateral move for the Plaintiff with the same salary. When Morgan questioned the bonus programme that he was permitted to access as a dock supervisor, Graham responded that it was the company’s intention to “make him whole”. The new position was never posted internally or externally.
[51] Under cross examination, Graham agreed that Morgan was one of the highest paid dock supervisors and that it would have been expensive to terminate him given his length of service with the company.
[52] Following the meeting the Plaintiff sent Graham a letter [exhibit 1, tab 28] in which he stated that he had provided explanations for most of the errors that had been cited yet none had been accepted. He also noted that he felt that he was constantly being watched, monitored, shadowed and reported on and the situation had a negative effect on his health. He described the approach of the company as “very adversarial, intimidating and quite condescending.” Graham could not recall if the concerns expressed by Morgan in his letter were ever addressed by Vitran.
[53] I did not find Graham to be an impressive witness. When he was asked certain questions in cross examination that might portray him in an unflattering light, he professed to have no recollection. He was unwilling to concede points which painted Vitran as being anything other than a supportive employer, even when the evidence was clearly to the contrary.
Heidi Saccucci
[54] Heidi Saccucci [“Saccucci”] is the Human Resources Manager at Vitran and has held this position since September, 2007. She became involved with the Plaintiff when there were concerns about the issues underlying his performance.
[55] Saccucci recalled that in January 2009, Morgan was absent from work and his superior, Ferguson, did not know where he was. She met with him when he returned and he gave her a newspaper clipping of his mother’s obituary and he was given the standard bereavement pay plus whatever vacation days he had left. She could not recall if there was any issue with his pay being cut off while he was abroad.
[56] She was aware of the affirmative corrective action letter that Morgan was given in December 2009 in which he was advised of various performance issues and the need for shadowing. She was present at the meeting with the Plaintiff after he had undergone the testing. She did not feel that his personality or aptitudes were compatible with the fast paced environment of the dock where a supervisor had to be able to multi-task.
[57] Saccucci testified that the company was attempting to find a job for the Plaintiff that would be suitable given his strengths. She agreed that the freight analyst job was appropriate and she was present at the September 28, 2010 meeting where it was presented to Morgan.
[58] Saccucci could not recall if she received the e-mail from Morgan following the meeting where he was offered the freight analyst job. With respect to his comments about how he perceived he was treated by Vitran, she never followed up on those concerns, apart from sending an e-mail on August 13, 2010 which stated that Vitran considered Morgan to be a valuable employee [exhibit 1, tab 29].
[59] She exchanged correspondence with Morgan and his lawyer in October 2010. Eventually, she sent the Plaintiff a letter dated October 13 in which she advised that he was expected to be back at work by October 22, failing which Vitran would consider that he had abandoned his job [exhibit 1, tab 37].
[60] I did not find Saccucci to be a compelling witness. She was uncertain in her recollection of various matters, which is not surprising given the passage of time. However, her letters to the Plaintiff do not address the concerns that he expressed about what was happening at Vitran and in her role as Human Resources Manager, she ought to have done so. When asked about it at trial, she was defensive, maintained that the company had acted appropriately throughout and seemed to simply adopt the company line. Thus, I attach little weight to her evidence.
ANALYSIS
[61] There are 2 issues that I must decide: whether the Plaintiff was constructively dismissed; and if so, whether he has mitigated his damages.
Constructive Dismissal
[62] The leading case on constructive dismissal is Farber v. Royal Trust Co.[^1] The Supreme Court of Canada defined constructive dismissal as follows:
“Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee, this is referred to as “constructive dismissal”. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.”
[63] In order to determine if an individual has been constructively dismissed, the Court must scrutinize the facts of the particular case, including the history of employment with the company and the nature of the job the Plaintiff held, and consider the changes that were being imposed. In Farber, supra, the Court goes on to note that in deciding if there was constructive dismissal, the unilateral changes to the employment contract must be studied and the court must decide whether the “substantially altered the essential terms of the employee’s contract”. The standard to be used is that of the reasonable person: would a reasonable person in the Plaintiff’s situation have felt that the essential terms of the employment contract were being changed in a substantial way? It is an objective test. Of note, it is not necessary for the employer to have intended to force the employee to quit his or her job or to have been acting in bad faith when the substantial changes were made to the contract of employment.
[64] In the case of the Plaintiff, he had held the job as dock supervisor with the Defendant for 24 years at the time he was told he was unsuitable for the job. He had worked at the company for 26 years. I am satisfied that in executing his job as a dock supervisor, he exercised discretion, had to make decisions, and he supervised the dock workers who reported to him. Indeed, the job posting for the position of dock supervisor [exhibit 1, tab 25] states that the main duties of the job are to “supervise and coordinate activities of worker engaged in loading/unloading trucks, assign job tasks to workers, train new employees, instruct dock crew to load freight…and ensure that all work is performed according to company procedures for dock operations”.
[65] I found the Plaintiff to be an honest, credible witness who did not attempt to embellish his evidence. I accept his testimony that he loved his job and the camaraderie that it entailed with the dock workers. While some may describe the work of a dock supervisor as stressful, clearly Morgan thrived on the fast-paced environment and that is one of the reasons he continued to work at the same job for many years.
[66] The evidence demonstrates that sometime in the mid-2000’s, after he had been working as a dock supervisor for 20 years, criticism was leveled at him for various errors that were made. While I accept that in his role as a dock supervisor, Morgan had to accept responsibility for errors made by the workers he supervised, I am not persuaded the routine errors that were made during his shift were any different than the mistakes that occurred during other shifts under the watch of other dock supervisors. I accept the evidence of Wilkinson that the list of “problems” compiled by Graham and attached to the letter of December 3, 2009 [exhibit 1, tab 12] were mistakes that were commonly made at Vitran on a regular basis. For example, other dock supervisors recorded container numbers incorrectly at some point, according to Wilkinson. Other errors attributed to the Plaintiff in the list include shipments that were not full or were late in departing. Clearly, these were not errors made by Morgan, but ones for which he was responsible as the supervisor of the dock workers.
[67] I am not impressed with the evidence that was called by the defence concerning the alleged performance issues of the Plaintiff. The list dating back to 2004 contains 2 incorrect recordings in 2004, no errors in 2005, and 4 mistakes in recording in 2006. There was no evidence of performance issues cited for the many years prior to 2004. In addition, the items on the list compiled by Graham dating back to 2004 were never brought to the attention of Morgan at the time they occurred so one wonders how significant they were if management did not even feel it necessary to make the Plaintiff aware of them.
[68] The evidence supports the Plaintiff’s theory that sometime in the mid-2000’s he became the focus of his superiors who were looking to find fault with his performance. Whether this was because his shift supervisor, Grout, did not think he was a competent employee or because the branch manager, Graham, did not value his work or due to some other reason is unclear.
[69] However, I reject the suggestion by the Defendant that Morgan’s problems at work arose because he was working another job several mornings a week and he was tired. Vitran asserts that the errors were an issue as far back as 2004, yet Morgan did not secure the additional job until October 2007, so on the evidence there is no connection demonstrated between the job at the Brampton Civic Hospital and the alleged decline in the Plaintiff’s performance at Vitran.
[70] I have no doubt the Plaintiff was “targeted” by his superiors and their attention was on him. An example of this behaviour is the issue surrounding the break time of the dock workers. Graham testified that the workers were taking excessively long lunches and breaks. Morgan was given a letter on this issue while the other 2 dock supervisors were simply spoken to. I do not accept Graham’s explanation for this difference in treatment, that because management was dealing with Morgan on various matters, they reduced the complaint to writing. If it was a serious issue that all of the dock supervisors were responsible for as part of their function in overseeing the operations on the dock, they should have all been dealt with in the same fashion.
[71] Similarly, the manner in which Morgan was treated concerning the WSIB injury was disrespectful and unwarranted in the circumstances. The Plaintiff testified that in June 2010 he closed a door on his ankle and sustained an injury. He continued to work and did not file a claim for a number of days and then was absent from work for a week. When he returned to work, he was summoned to Graham’s office. Graham conceded that he thought Morgan was lying about the injury and he told him it was “bogus” and that he would fight the claim. The entire basis for his view appears to be the fact that he reviewed the surveillance tape of the day of the injury and he saw no evidence of the Plaintiff hurting himself on the dock.
[72] The e-mail from the Plaintiff setting out what transpired at the meeting was acknowledged by Graham as being accurate [exhibit 1, tab 24], although he denied that he tried to intimidate Morgan. At that time, the Plaintiff had been an employee of Vitran for 26 years. There was no evidence led by the Defendant that the Plaintiff took excessive time off or that he filed numerous WSIB claims. The attitude evinced by Graham during his meeting with Morgan in June 2010 was unprofessional to put it mildly. The fact that he would send the Plaintiff’s e-mail in which he stated that he felt intimidated and under inquisition by Graham to the Human Resources Manager acknowledging the veracity of the Plaintiff’s view of how he was treated is shameful. I would have expected to have heard evidence from Saccucci or Graham’s superior chastising him for this behaviour, but it appears there was instead tacit acquiescence. It is not surprising in this type of environment Morgan felt he was being targeted and that his superiors did not have confidence in him nor did they accept what he said.
[73] The evidence and in particular the numerous e-mails in exhibit 1 demonstrate that by the fall of 2006, Vitran was finding fault with Morgan and bringing examples of various errors to his attention. Invariably, the Plaintiff responded by letter or e-mail to his superiors, setting out his explanation, and confirming his commitment to his employment at Vitran. I find the manner in which the Plaintiff addressed Graham and the others was always respectful and he was earnest in his attempts to secure feedback from management so he could improve.
[74] In the face of this, however, his correspondence failed to elicit a response from Vitran, apart from the occasional pro forma reply. For a long term employee to be treated in this manner can only be described as demeaning and demoralizing. Instead of responding to Morgan’s comments and requests, the company seemed to prefer to continue to paper its file against Morgan by delivering letters telling him his performance was unacceptable but without any meaningful suggestions for how he could remedy the perceived shortcomings.
[75] This course of action continued with the delivery of the affirmative corrective action letter in December 2009. Basically, that letter advised the Plaintiff that he had not improved his performance despite the fact that the “history of errors” had been brought to his attention. Thus, Morgan was told that he had to undertake some “re-training” which was mandatory. This involved shadowing of his activities on the dock by his shift manager Khan for 2 hours a day, 3 days a week for 30 days following which he would be given “feedback” about how he was doing and other improvements. The letter went on to say that if there wasn’t a “significant improvement” in his performance in 6 months, further steps would be taken by Vitran. If there was no improvement within a further 3 months, they would try to find another job in the company for him and if such a position was not available, he would be terminated for cause.
[76] I agree with the submissions of the Plaintiff that the language in this letter was vague and there were no concrete suggestions of how he could improve his performance to meet Vitran’s expectations. In addition, the undisputed evidence was that the shadowing did not occur as set out in the letter. Morgan was watched by Khan but there was no feedback given and there wasn’t any discussion of what Khan’s observations were and how the Plaintiff could improve his performance or reduce the errors made. One wonders how Morgan could be expected to meet the objectives set out in the letter without input from the employer. If the objective of the shadowing was, as the letter indicated, to provide Morgan with feedback from Khan “in relation to the progress and improvements that you…must continue to make in order to meet expectations”, it was doomed to failure with the lack of input from Khan.
[77] The main thing the employer seemed to be providing to assist the Plaintiff was the period of “shadowing”, which sounds appropriate in principal, but it was not followed. To have Khan the Plaintiff’s superior shadow him and provide feedback on his work makes sense. However, in reality, there was no shadowing. The only evidence on this point came from the Plaintiff who testified that Khan did not speak to him but that he saw him at certain times watching him but he never provided any feedback about how the Plaintiff was doing or what he could do to improve to meet the expectations of Vitran.
[78] Nonetheless, the employer deemed the shadowing unsuccessful and proceeded to require the Plaintiff to submit to testing to determine if he was suitable for a job he had performed for 24 years. According to the e-mail of July 14, 2010 from Graham to Saccucci and Ferguson, they met with Morgan on July 13 and “told him that his strengths were not suited to the position he is currently filling.” He was advised that they would look for other positions in the company that would be more appropriate.
[79] The main criticism of Morgan as evidenced by the various e-mails was the number of errors that he made or that were made by dock workers he was supervising. The results of the testing indicated that Morgan was “amiable, friendly, precise, accurate and diplomatic who continually strived to avoid trouble and error…” There was no mention in the test results of an inability to multi-task or to work in a fast paced environment. The Defendant did not call anyone to explain the test results or why the conclusion was reached that Morgan did not possess the skills and personality to work as a dock supervisor. No explanation was offered as to how the Plaintiff was able to perform, apparently successfully, his job as a dock supervisor for more than 20 years when his personality was ill-suited to the role.
[80] When the Plaintiff sent an e-mail following the meeting, the response from Saccucci was vague and unhelpful [exhibit 1, tab 29]. She acknowledged his frustration but simply stated that the facts remain unchanged. It is unclear what facts she is referring to and, once again, she fails to respond to the points raised by Morgan. Given the comments contained in the Plaintiff’s correspondence to her and taking into account he had been employed with Vitran for more than 25 years, surely it was incumbent on Saccucci to provide a meaningful response to the concerns raised and to offer some assistance. After all, she was the manager of the Human Resources department at the company.
[81] The Plaintiff was then offered the position of freight analyst. While the Defendant argued that there was no difference in the position of dock supervisor and freight analyst, I do not accept this submission. It is clear to me that the job of supervising 2 cubers who prepare freight is very different than that of a dock supervisor who is responsible for the actions of 22 men on the dock and in doing so, had to exercise discretion and make decisions. I accept the evidence of Wilkinson who testified that the role of dock supervisor was central to operations and the job of freight analyst was more clerical in nature. I find that the job of freight analyst was certainly of lesser importance at Vitran and carried with it less prestige. Instead of being part of the life blood of the company and supervising the many men on the dock who loaded the freight and got it moving, the freight analyst position involved checking on 2 part time workers. Clearly, the status that the freight analyst position carried with it was much inferior to that of the dock supervisor. The fact that the new position had the same remuneration and the promise of Graham that the company “would make him whole” is not determinative of it being a comparable position.
[82] In Cox v. Royal Trust Corp. of Canada[^2] the Court of Appeal found that even a well-motivated employer who acted properly when it removed a manager from his position when he could not perform it and offered him another job had, by doing so, made a fundamental change to the employment contract. It was a case of constructive dismissal. In the case before me, for the reasons I have set out, I am not persuaded that the Plaintiff was incapable of performing his job as dock supervisor. Rather, the evidence supports the finding that Vitran had decided for reasons which were not articulated during the trial that it was going to remove Morgan from his position. Vitran did not allow the Plaintiff to respond to the various allegations made against him concerning the errors that he was responsible for. The Defendant’s failure to respond to the numerous e-mails from Morgan setting out his side of the story makes it clear that it was not prepared to re-consider its view that he was making numerous errors which were costly and that the mistakes were continuing to occur.
[83] The response of Morgan to being offered the job of freight analyst was understandable—he had worked in a supervisory capacity with Vitran for many years. To change to a position which appears to be an amalgamation of various duties that others did if they could find time was clearly demeaning and humiliating for the Plaintiff. Requiring the Plaintiff to work as a freight analyst if he continued to work for Vitran constitutes a fundamental change to his employment contract.
[84] In my opinion, any reasonable person who had been treated in the manner that Morgan was by Vitran and then presented with test results and told that he did not have the personality or the managerial skills to do the job he had been doing for 25 years and that he would have to take a job that had been created checking on 2 part-time workers, a position of less importance and prestige with very little supervisory function and little opportunity to make decisions and exercise discretion would conclude that the essential terms and conditions of the employment contract were being changed in a significant way. A reasonable person in Morgan’s situation would believe that his employment opportunities at Vitran and his future there was significantly limited and that the terms of his employment had been altered in a substantial way. The Plaintiff’s loss of faith in his employer in these circumstances was entirely justified.
[85] The conduct of Vitran in compiling a list of errors dating back years when they were not brought to Morgan’s attention at the time as being serious issues, the imposition of discipline for these mistakes, together with placing him on the “Affirmative Corrective Action Plan” which was doomed to failure in the absence of meaningful feedback from the employer, the requirement that he undergo testing to determine his skills and aptitudes and the mandatory transfer to an alternate position which carried with it lesser functions and conditions of employment –all of these factors go to the root of the employment contract and constitutes a fundamental breach of it. I have no difficulty in concluding on the evidence that the Plaintiff was constructively dismissed from his position as dock supervisor at Vitran.
[86] The Defendant attempted to argue that in continuing to work without objection the Plaintiff ought to be found to have acquiesced in the changes and is therefore disentitled to argue that he was constructively dismissed. Counsel argued that the work environment could not have been toxic and he could not have been humiliated because if that were true, he would not have continued to work at Vitran. I reject this submission. The evidence was uncontradicted that Morgan had a family he had to support and consequently, he needed the income from his job. Furthermore, he was a long term employee of the company, having worked there for more than 25 years. At his age and given how much he liked his job, it would not have been easy to walk away from his place of employment. I accept the Plaintiff’s explanation that he was hoping the situation at work would improve. The fact that he had to seek medical help after he left Vitran supports my finding that his job played a significant role in his life and was part of who he was.
[87] Morgan wrote countless e-mails to his supervisors in which he disagreed with their position on his job performance and he advised them in clear terms how he felt he was being treated at work. Vitran chose to ignore these communications, which became more desperate as time went on. It is unclear why an employer would treat a long term employee in such a disrespectful, unprofessional fashion and no explanation was offered at the trial. However, I reject any suggestion that he “condoned” the behaviour that he was subjected to.
Mitigation
[88] Counsel agree that the Supreme Court of Canada has made it clear that regardless of whether an employee was constructively dismissed or terminated without cause, the principles of mitigation are the same: Evans v. Teamsters Local Union No. 31[^3] . Depending on the circumstances, the employee who has been dismissed may have to continue to work for the dismissing employer in order to mitigate his or her damages. The test is an objective one: whether a reasonable person in the employee’s situation would have accepted the chance to continue working with the employer. The employer bears the onus of demonstrating that an employee has failed to make reasonable efforts to find work and that such work was available. In determining whether an employee was obliged to accept the new position offered by the employer, the court must look at the particular circumstances of the case, keeping the facts in context.
[89] In Evans, supra, the Supreme Court made it clear that an employee is not required to mitigate by working at a “demeaning” job, or where the working relationships are “acrimonious”—in short, where there are “no barriers to re-employment” the employee should continue to work at the place of employment while looking for other work. Mifsud v. MacMillan Bathurst Inc.[^4] while it pre-dates Evans, supra, it contains a helpful analysis of the approach the court ought to take. It noted that an employee does not have to mitigate by continuing to work at the employers’ if the atmosphere was one of hostility, embarrassment or humiliation and this is a critical consideration when the Court considers what reasonable conduct in the circumstances is. The Court stated, “Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer, it is extremely important that the non-tangible elements of the situation—including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements—be included in the evaluation.”
[90] In the recent Court of Appeal decision Chevalier v. Active Tire & Auto Centre Inc.[^5] the court considered whether it was reasonable in the circumstances for the Plaintiff to have refused to continue to work after he had been constructively dismissed. The trial judge had found that a reasonable person in the Plaintiff’s circumstances would have taken the job and continued to work and by failing to do so, the Plaintiff failed to mitigate his damages. In dismissing the appeal, the court affirmed that the trial judge’s findings on the evidence that the employer was well-motivated, and the Plaintiff was not subject to demeaning or objectionable conduct.
[91] In considering the evidence as a whole, I have concluded that Vitran has not met its onus of establishing that in the circumstances of the Plaintiff’s situation, a reasonable person would have accepted the freight analyst job and would have continued to work at Vitran. The environment was unfriendly, the work he was offered (although the salary was the same) was of lesser importance and certainly, Morgan would have suffered a loss of dignity in the eyes of the dock workers he used to supervise. Everyone at Vitran would have known that the company believed Morgan was not capable of performing the supervisory elements required of him in his capacity as dock supervisor. The freight analyst position was not one that had been posted; other employees would have been aware of that and would have known it was a position created specifically for Morgan because of his perceived ineptitude. The new position would have been viewed as a demotion by the other employees.
[92] In addition to the demeaning aspect of the Plaintiff having to accept the freight analyst job, the manner in which he was treated by his superiors must also be taken into consideration when determining whether it was reasonable for him to continue working at Vitran.
[93] I do not find that the employer was well-motivated to assist Morgan to correct his short-comings so he could perform his job as a dock supervisor better. The evidence confirms that Morgan was singled out for different treatment. He was blamed for mistakes that were commonly made on the dock and he was given a list of alleged errors dating back to 2004, when he had never been spoken to about these issues at the time they were apparently made. Similarly, when the dock workers were found to be taking excessive breaks, Morgan was given a letter of reprimand while the other dock workers on the same shift were simply spoken to.
[94] Although Graham denied he treated the Plaintiff inappropriately, the e-mails belie this statement and speak volumes. As I have indicated, the manner in which the company dealt with Morgan on the WSIB claim cannot by any standard be found to be appropriate. The e-mails between Khan, Ferguson, Saccucci and Graham surrounding this incident make it clear that he was not viewed with respect. The company told Morgan he did not have the aptitudes or the personality to do the dock supervisor job, yet he had been performing it for close to 25 years.
[95] The manner in which the employer attempted to persuade the Plaintiff he was not performing up to standards and purported to offer him assistance was confusing and their plan was doomed to failure. They identified mistakes they said Morgan had been making for years yet when he offered explanations, there was no response. They then provided him with a letter outlining an “affirmative corrective action” plan “to provide further training with a view to facilitating you achieving an acceptable level of performance.” What does that mean? The language used is broad and vague and could be applied to virtually any employee at Vitran. It was not specific to Morgan and nowhere does the letter give concrete solutions as to how Morgan could fix the problems he was making, which he did not agree with at the outset.
[96] Nonetheless, Morgan participated and sent his superiors an e-mail advising that he felt isolated and demoralized. The response from Khan in his e-mail to Ferguson [exhibit 1, tab 20] concerning Morgan’s perception that he was being “harassed” is telling. Instead of seriously considering the views of Morgan concerning his performance at Vitran, Khan is mean spirited. He suggests the Plaintiff was “economical with the truth.” With respect to Morgan’s comment that he was being harassed, Khan does not suggest to Ferguson that they ought to investigate it or inquire into why Morgan, a long term employee with the company, would feel that way. Instead, Khan suggests his lawyer planted the thought in his mind or alternatively, Morgan ought to be seen by a doctor.
[97] Khan was Morgan’s immediate superior. The attitude evinced by the May 11, 2010 e-mail makes it clear to me that there was no bona fide intention on behalf of the Plaintiff’s superiors to identify his problems at work [if they existed and I am not persuaded that they did] and help him remedy the issues so that his performance would be acceptable to Vitran. Rather, it seems Morgan was being set up to fail. He was treated without respect; as if his views did not matter. His personal relationships with Graham, Saccucci, Ferguson and Khan were acrimonious. The evidence reveals that no matter what Morgan did, he continued to be criticized by his superiors. His concerns were not addressed; his e-mails and letters were not responded to.
[98] Given the evidence about the nature of the job that he would have been forced to accept, the humiliation that he would have been subjected to, as well as the unacceptable treatment by his employer, in my view he was not obligated to accept the job and continue working at Vitran. I find that it would not have been reasonable for Morgan to have accepted the new position in order to mitigate his damages.
What is reasonable notice?
[99] The determination of what is reasonable notice is fact specific to each case. The Court must consider how long an individual was employed with a company, the nature of the work that was done, as well as the age of the employee and availability of other similar employment. When considering the availability of other employment, the education and other qualifications of the employee must be looked at as well as the experience he or she has in the area: Bardal v. The Globe and Mail Ltd.[^6]
[100] Counsel for the Plaintiff has included in her materials a chart summarizing cases involving employees in comparable situations to Morgan and she submits that the appropriate range of notice is 18-20 months. Counsel for the Defendant argues it is 18 months.
[101] Morgan had been employed with Vitran for 26 years at the time of his dismissal. He had been working for the last 24 years in a managerial capacity as a dock supervisor and was 53 years of age. Really, his entire career was spent at Vitran and he had not upgraded his education; most of his experience appears to have been obtained on the job. Since leaving Vitran, he has applied for other jobs in the field but has not been successful. After considering the relevant factors, I am of the view that the reasonable notice period for the Plaintiff is 18 months. Based on the Plaintiff’s salary at the time, the 18 month notice period is $80,911.88.
Moral damages
[102] The Court can order compensatory damages to an employee who suffers damages from the manner of dismissal, if the employer’s conduct is egregious or the employer acted in bad faith: Honda Canada Inc. v. Keays[^7]. In that case, the Supreme Court of Canada stated,
Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not thorough an arbitrary extension of the notice period, but through an award that reflects the actual damages….
[103] The Plaintiff argues there ought to be an award of moral damages for the actions of the employer in targeting Morgan, criticizing him and humiliating him. It is submitted that as a result of this treatment, the Plaintiff’s health deteriorated and he was forced to seek medical treatment for depression. The Defendant submits that the employer acted in good faith.
[104] In Altman v. Steve’s Music[^8], an award of moral damages was made when a 30 year employee who had been diagnosed with cancer received a letter terminating her employment while she was in the midst of treatment. There was medical evidence that the Plaintiff in that case suffered from a major depressive illness caused by receiving a letter from the employer’s lawyer advising that if she did not return to working full time hours, she would be terminated. According to the doctor, the Plaintiff was devastated by the receipt of that letter because working was important to her, especially during her treatment for cancer. Prior to her diagnosis, the Plaintiff had been treated like family, yet no-one from the company called to advise her that she needed to increase her hours. The trial judge described the treatment of Altman by the employer as callous and insensitive, deserving of an award of moral damages.
[105] In the case before me, the treatment of the Plaintiff was, in my view, unfair and unacceptable in the circumstances. However, it cannot be said to be as nasty and mean spirited as the conduct in Altman, supra. Further, I am not persuaded that when Vitran advised the Plaintiff that he would no longer be performing his job as dock supervisor and offered him another position with the same compensation, the employer realized that Morgan would suffer mental distress. The evidence from the Defendant was to the contrary: that because Morgan did not have the skills and personality to be a dock supervisor, the job of freight analyst would be less stressful and provide him with more flexibility. Although the conduct of Vitran leaves much to be desired, I am not persuaded it was intentionally cruel thus that it is deserving of an award of moral damages.
CONCLUSION
[106] The Defendant shall pay to the Plaintiff the sum of $80,911.88 in notice, plus the applicable pre-judgment interest.
[107] If the parties cannot agree on costs, I may be contacted.
D.A. Wilson J.
Released: November 5, 2013
COURT FILE NO.: CV-11-422899
DATE: 20131105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dunstan Morgan
Plaintiff
– and –
Vitran Express Canada Inc.
Defendant
REASONS FOR JUDGMENT
D. A. Wilson J.
Released: November 5, 2013
[^1]: Farber v. Royal Trust Co., 1997 387 (SCC), [1997] 1 S.C.R. 846 [^2]: Cox v. Royal Trust Corp. of Canada, [1989] O.J. No. 675 [^3]: Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661 [^4]: Mifsud v. MacMillan Bathurst Inc. 1989 260 (OCA) [^5]: Chevalier v. Active Tire & Auto Centre Inc., 2013 ONCA 548 [^6]: Bardal v. The Globe and Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R.(2d) 140. [^7]: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362 [^8]: Altman v. Steve’s Music, 2011 ONSC 1480