SUPERIOR COURT OF JUSTICE - ONTARIO

BARRIE COURT FILE NO.: CV-11-0742

DATE: 20130206

RE: GERRY BROWNSON, Plaintiff

AND:

HONDA OF CANADA MFG. a division of HONDA CANADA INC., Defendant

BEFORE: THE HON. JUSTICE M.P. EBERHARD

COUNSEL:
H. Scher Counsel, for the Plaintiff (Responding Party)

K. Fields Counsel, for the Defendant (Moving Party)

HEARD: February 6, 2013

ENDORSEMENT

[1] The Defendant moves for Summary Judgment.

[2] The Plaintiff was terminated and compensation of eight months remuneration offered in lieu of notice.

[3] The Defendant did not rely on dismissal for cause.

[4] The evidence indicated that there was an allegation of an incident of misconduct and the Plaintiff was first among the 23 employees in the department to be interviewed. No fault for the misconduct was ever determined.

[5] In the course of the interview that Defendant learned of other conduct and determined to terminate the Plaintiff’s employment with the compensation package offered rather than notice.

[6] The Plaintiff claims:

(b) general damages as a result of the wrongful dismissal and breach of contract in the amount of $85,000.00, representing the Plaintiff’s lost compensation during the applicable notice period;

(c) moral damages of $43,500.00, representing compensation for an extended notice period due to the bad faith conduct of the Defendant;

(e) damages in the amount of $50,000.00 for intentional infliction of mental suffering;

(f) punitive damages In the amount of $50,000.00.

[7] Both parties have put forward criteria, and calculations relating to the proper notice period and neither would have objection to my granting Summary Judgment on the application of criteria to the Bardal[^1] factors and they supply charts. Argument reveals however that even if I name the notice period there would be dispute about what benefits and notional remuneration and argument about mitigation would be subsumed in such a finding.

[8] Although such a Summary Judgment would address the first claim, it would leave the other heads of damage claimed.

[9] The Plaintiff’s theory, adequately supported by evidence to consider, is that the Plaintiff was fired for cause which he had no opportunity to dispute. There has been no finding as to who is responsible for the incident of misconduct that generated the investigation by the employer. The other misconduct, although some was acknowledged by the Plaintiff, was not specified. He had no opportunity to dispute it.

[10] Moreover, the Plaintiff had a 10 year work history with no discipline entries. That being so, there was no documentation of progressive discipline.

[11] The Defendant, not having claimed cause, put forth no demonstration of the fair response that termination for cause would require.

[12] By offering compensation in lieu of notice the Defendant submits it is merely terminating an employee in accordance with the law which permits an employer to terminate employment on adequate notice and in compliance with statue.

[13] If this termination had come out of the blue I might be persuaded. However, in the present case, the juxtaposition of the termination with a 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.

[14] 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.

[15] The medical/psychological evidence put forward by the Plaintiff is consistent with a contemporaneous distress at the stigma of accusation, followed by termination for all to see and speculate.

[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.

[17] For these reasons I find that I cannot have a full appreciation of the issues in dispute to grant Summary Judgment. The motion is dismissed.

[18] The Plaintiff may make costs submissions of no more than two pages together with a bill of costs and any offer through the Judicial Secretaries in Barrie by February 15, 2013. The Defendant may respond by February 22, 2013 and the Plaintiff reply by Feb 26th, 2013.

EBERHARD J.

Date: February 6, 2013

[^1]: Bardal v Globe & Mail Ltd. 1960 294 (ON SC), [1960] 24 D.L.R. (2d) 140