BARRIE
COURT FILE NO.: CV-11-0742
DATE: 20131112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GERRY BROWNSON, Plaintiff
AND:
HONDA OF CANADA MFG. a division of HONDA CANADA INC., Defendant
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL:
H. Scher, for the Plaintiff
K.L. Fields, for the Defendant
HEARD: October 17, 2013
ENDORSEMENT
[1] Honda of Canada Mfg. a division of Honda Canada Inc. (“Honda”) as respondents bring a motion seeking leave to appeal the interlocutory order of the motions judge dated February 6, 2013. The plaintiff Gerry Brownson (“Brownson”) opposes the relief sought.
[2] A motion for leave to appeal an interlocutory order engages a consideration of rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The grounds upon which leave may be granted are set out in subrule 62.02(4):
(4) Leave to appeal shall not be granted unless,
(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[3] The purpose of the rule is not to retry the issue on the leave application but rather to determine if there is conflicting decision by another court and if it is desirable that leave be granted under clause (a) or, under clause (b), if there is a reason to doubt the correctness of the order and the appeal involves matters of importance.
BACKGROUND FACTS
[4] Brownson was a ten-year employee of Honda. He began work as an associate in the final assembly department then transferred to the weld department where he performed various welding and related functions on the assembly line of Honda’s vehicles. There were no allegations of any discipline history until an incident at the workplace required the employer to conduct an investigation. This investigation required Honda to interview Brownson and several other employees working with or near Mr. Brownson. During the course of this investigation Mr. Brownson was escorted from the workplace never to return. On September 17, 2009 he was terminated by way of a telephone call from Melanie Muirhead, a Human Resources Generalist for Honda. By letter dated September 18, 2009 Honda sent a letter a Brownson confirming the oral termination. The letter did not provide that the termination was for cause. It offered payments representing eight months wages provided that a full and final release within a confidentiality agreement was executed. The letter did not include an offer of vocational training and did not provide a letter of reference.
[5] It is clear from the affidavit of Melanie Muirhead that although the incident was investigated there was no evidence linking Mr. Brownson to the incident. As Ms. Muirhead states in her affidavit at para. 13:
To this date, it is not known to the management at HCM who is responsible for the incident. We could however, not ignore the other allegations that came out of the interviews regarding the incidents of horseplay, pranks and defacing company products. These matters were reviewed with senior management and it was determined that we would not allow Brownson and the other individual to continue in the employ of HCM.
[6] As to her oral termination of Brownson she stated at paras. 14 and 15:
The decision was taken to terminate both Brownson and the other individual’s employment. I prepared a script of information to convey to Brownson when I would speak with him by phone.
On September 17, 2009 I contacted Brownson at home. I went through the items in my script, discussed the issues of defacing company property, horseplay and pranks. I informed him that we had no choice but to take action, and that his employment was terminated without cause. [Emphasis added]
[7] The script was not provided as to an exhibit to her affidavit and it is not clear whether Mr. Bronson was offered monetary compensation. Mr. Brownson’s affidavit takes issue with Muirhead’s affidavit. As he states at para. 58:
The fact of Ms. Muirhead’s statements to me that she believed me to be responsible for the incident and her suggestions in her affidavit that I engaged in numerous acts of misconduct including pranks, graffiti and property defacement, supports the notion that I was wrongfully terminated in bad faith and not dismissed without cause as alleged by Honda.
THE CLAIM
[8] Brownson refused to accept the compensation package offered by Honda and issued a Statement of Claim in August 2011. The claim requested a declaration that he was wrongfully dismissed and sought with general damages, moral damages, special damages, punitive damages and damages for intentional infliction of mental suffering.
MOTION FOR SUMMARY JUDGMENT
[9] Honda then brought a motion for summary judgment seeking that the court assess a reasonable notice period. Honda also sought a dismissal of the claims for bad faith, punitive and intentional infliction of mental distress damages.
[10] The motion for summary judgment was heard on February 6, 2013. For written reasons issued the motions judge dismissed the defendant’s motion. In her reasons she concluded at para. 17:
For these reasons I find that I cannot have a full appreciation of the issues in dispute to grant summary judgment.
[11] The motions judge noted at para. 2, “The plaintiff was terminated and compensation of eight months remuneration offered in lieu of notice.”
[12] The motions judge, on the material before her, refused to fix the appropriate termination period given the other circumstances surrounding the end of Mr. Brownson’s employment. As she stated a paras. 13-14:
If this termination had come out of the blue I might be persuaded. However, in the present case, the juxtaposition of the termination with contemporaneous investigation of misconduct colours the ordinary procedures, such as escorting the terminated individual out of the workplace, with an innuendo that could give rise to the mental suffering alleged by the plaintiff particular to the circumstances of the termination rather than the fact of being terminated.
In the circumstances of the present case it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged.
[13] The motion judge further stated at para. 16:
This raises a triable issue on the other heads of damage. Since the combination of such relief is a balance to be struck by the trier, it would create a limitation on the proper balance if I remove one of the tools by Summary Judgment.
ANALYSIS
[14] Honda submits that it was within the jurisdiction of the motions judge grant summary judgment for the plaintiff by fixing the appropriate notice period while at the same time dismissing the plaintiff’s other claims for relief.
[15] While the motions judge could have granted partial summary judgment fixing the notice period she gave clear and cogent reasons for not doing so. By stating that she did not have a full appreciation of the issues in dispute she adverted to the well known principles in Combined Air Mechanical Service v. Flesch, 2011 ONCA 764, 2011 O.J. No. 5431 (ONCA). There is clearly a dispute raised in the competing affidavits of Ms. Muirhead and Mr. Brownson. Those issues can best be tested in a trial where both parties have the opportunity to cross-examine. This was not a paper-driven record which would have enabled a motions judge to more easily dispose of the issues. Because of the factual nature of this dispute I am satisfied that there are no conflicting decisions involving the proposed appeal which would render it desirable that leave be granted.
[16] With respect to the second part of the test for leave to appeal in rule 62.02(4) I am not satisfied that there is reason to doubt the correctness of the order. Even if the motions judge was incorrect with respect to some of her findings, which I do so find, this is a dispute which involves the parties and does not transcend to an issue of importance where leave should be granted to appeal the matter to the Divisional Court.
[17] In my view some matters require a trial and cannot be easily be disposed of at a motion for summary judgment. This is one such matter.
LEAVE TO APPEAL THE COSTS ORDER
[18] Honda also seeks leave to appeal the costs order of the motions judge who fixed costs in favour of Mr. Brownson in the amount of $14,000. In fixing costs the motions judge stated:
I find the circumstances generally support substantial indemnity costs. However, I remind myself that I am fixing, not assessing same which persuades me to moderate the claim based on proportionality.
[19] In submissions before me counsel indicated that a substantial indemnity costs sought were in the order of $16,000 and partial indemnity costs would have been in the order of $12,000. It is clear that the motions judge granted somewhat elevated costs above partial indemnity and provided reasons for doing so. The difference between partial indemnity of $14,000 and the amount granted by the motions judge is $2,000.
[20] Motions judges have considerable discretion in fixing costs under the Rules of Civil Procedure and the Courts of Justice Act. Honda’s motion seeking leave to appeal her order having been dismissed, this court is left to determine if a stand-alone costs order ought to be appealed to the Divisional Court when the quantum at issue is $2,000. One of the key principles in fixing costs is the issue of reasonableness. In my view given the quantum involved it would be unreasonable to grant leave to appeal a stand-alone costs order, an order which was well within the motions judge’s jurisdiction to make.
[21] Leave to appeal the costs order is dismissed.
COSTS
[22] The plaintiff has been successful in responding to the defendant’s motion seeking leave to appeal. If the parties are unable to resolve the issue of costs, I may receive written submissions not exceeding two pages, within twenty days of the release of this endorsement. The defendant will then have a further ten days to reply. If no submissions are received by December 15, 2013, I will consider the matter closed as having been resolved between counsel.
MULLIGAN J.
Date: November 12, 2013