Court File and Parties

Court File No. CV-11-422289
Date: 20140619

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MUNISH CHOPRA

Plaintiff

Flora M. Poon for the Plaintiff

and -

EASY PLASTIC CONTAINERS LIMITED aka EASY PLASTIC CONTAINERS LTD.

Defendant

Stephen A. Bernofsky for the Defendant

HEARD: March 12, 2014

M.A. SANDERSON J.

Reasons for DECISION

Introduction

[1] In this wrongful dismissal action, the Plaintiff, Mr. Munish Chopra ("Chopra") claims the following against the Defendant Easy Plastic Containers Ltd. ("Easy"):

(a) a Declaration that Easy wrongfully terminated his employment;

(b) damages in the amount of $32,068.66;

(c) aggravated damages in the amount of $30,000 for bad faith termination and for negligent infliction of mental suffering; and

(d) punitive and exemplary damages in the amount of $40,000.

[2] Easy submits that it had just cause to terminate Chopra's employment and, accordingly, he is not entitled to any damages.

Background

[3] Chopra first applied for employment with Easy Enterprises on May 31, 2001, and on June 11, 2001, was hired as a blender/labourer.

[4] From March 2 to March 29, 2002, Chopra went to India to marry.

[5] Mr. Nick Seretis ("Nick Seretis") gave evidence that Easy Enterprise's policy was to limit new employees' vacations to two weeks' duration. Chopra was told before he left that he would be terminated after two weeks, but if the same position were available when he returned from India, Easy might rehire him.

[6] Chopra's supervisor, Mr. Uppal ("Uppal"), gave evidence that upon Chopra's return from India, Easy rehired him to work at the position he had earlier held, at the same hourly rate, and gave him a new employee number.

[7] No Record of Employment for this “termination” was tendered into evidence. After his return, Easy prepared a letter to assist Chopra in sponsoring his wife to immigrate to Canada, mentioning that his start date had been June 11, 2001.

[8] Easy policies were amended from time to time and Chopra became an employee of Easy Plastics ("Easy").

[9] On July 12, 2005, Chopra was promoted to Shift Supervisor.

[10] On February 7, 2008, Easy instituted a written policy of progressive discipline that it included in its Policies as Number 23 under section B.

[11] At trial, counsel for Easy submitted that Easy had just cause for Chopra's termination as a result of a number of incidents, including poor performance, serious misconduct, insubordination, incompetence, breach of company rules and conduct prejudicial to Easy's business.

Incident One

[12] The first incident Easy relied upon allegedly occurred on March 12, 2007. Easy alleged that Chopra violated Easy's rules by allowing Mr. Syed Shah ("Shah"), an unauthorized person, to enter a restricted area, a workshop/tool room, and to use equipment, knowing it was only to be used by authorized persons. Chopra received a written warning letter in connection with this incident, including the following:

You have violated the company rule by asking Mr. Syed Shah, who is unauthorized to enter the workshop/tool room and allow him to use the equipment and tools. I have no option but to serve you with this letter of Warning and remind you not to violate company rules which are put into place for your safety and all employees. If you violate this rule again further action will be taken against you.

[13] Uppal gave evidence that Chopra and Shah took active steps to unlock and enter the room. Chopra gave evidence that "we" went to the tool room for supplies "all the time," complained that Shah did not receive a warning, Chopra did not agree to the warning and had been given no opportunity to dispute it.

Incident Two

[14] Easy relied upon a second incident that allegedly occurred on February 8, 2008. Easy alleged that Chopra, while acting as Shift Supervisor, allowed three employees to leave the Easy premises for approximately one hour without punching their time cards and failed to report the incident to his supervisor.

[15] Chopra received a written warning including the following:

Chopra been the S.S. [Shift Supervisor] on the 12-8 shift therefore responsible for all employees in that shift [sic] he let 3 employees to go out from the premises for about 1 hour without punching their time cards.

Chopra fail to report to his sup. [supervisor] the next day. I hope this warning will prevent a reoccurrence.

[16] Chopra gave evidence he had been unaware the employees had left the Easy premises until he had received the warning. He did not admit Easy's version of the incident. He said there was a snowstorm on February 8, 2008 and employees may have come in late.

[17] Ms. Celeste Rossi ("Rossi") gave evidence she spoke with the three employees who acknowledged they had left under the circumstances alleged. Both Nick Seretis and Rossi gave evidence they had viewed a video of the workplace area that showed the employees leaving and returning to the premises. [Counsel for Chopra submitted they took no notes when they watched the video. They did not obtain any signed statements from the three employees. Chopra's counsel alleged that prior to this incident, Easy had no written policy providing that employees must punch out whenever they left company premises.]

Incident Three

[18] Easy relied on another alleged incident on February 16, 2008, when Chopra in his capacity as Shift Supervisor approved a full skid of product with labels missing. Counsel for Easy submitted it was Chopra's responsibility to ensure that skids were appropriately labelled. Chopra admitted having received a written warning dated February 19, 2008, including the following:

Munish was in charge of running the 12-8 shift on Feb 16-08 He had only 5 machine a QC and a blender to supervising [sic]. He approve a full skid to be moved to the overflow with 5 labels missing. Munish must improve is duties as a S.S. This is the 2nd written warning [with respect to performance issues].

[19] Chopra complained that although the "root cause" of that incident was that the packer failed to affix the labels, the packer received no warning.

Chopra's Allegations About Conditions Affecting Safety at Easy

[20] Overall, Chopra submitted that his termination was not for the incidents that Easy claimed constituted just cause, but for making his safety concerns known to the Ministry of Labour.

[21] In December 2008, Chopra said he was "very upset" when another worker (Mr. Patel) had his hand stuck in a machine [#16] for more than half an hour and no-one called 911. The machine was unsafe. Chopra told Easy to fix the machine. "We mechanics had to work on the machine." Chopra said he told Manuel and Uppal the machines were unsafe. They "harassed him" and ignored his complaints. In January and February of 2009 he was "telling them again and again."

[22] I note the content of Ex. 23, a letter from Mr. Patel to Easy dated May 30, 2008 about the incident that occurred on May 13, 2008. Patel wrote:

I was attempting to determine where air was leaking on machine #16 … I took a rolling staircase alongside the machine, climbed up and reached over the guards and my right hand was struck by the blow pin … 911 was dialed … and the Ministry of Labour got involved… I take full responsibility for the accident … Not only did I ignore the several signs posted .. Do not reach over or under guards…

Verbal Warning January 5, 2009

[23] On January 5, 2009, another Easy employee, a Ms. Lubina Malik, complained that Chopra had winked at her on several occasions and that on one occasion, he had touched her hand. Chopra denied this conduct. He was given a verbal warning. Easy did not rely on this alleged incident in terminating Chopra's employment.

Incident Four - Fourth Written Warning

[24] Easy alleged that on March 9, 2009, Chopra fell asleep during his shift. At a meeting attended by Chopra, Uppal and Mr. George Seretis ("George Seretis"), Chopra allegedly admitted having falling asleep, indicated he was tired and found it difficult to work the midnight shift. He was instructed to work on the day shift.

[25] Chopra said at the same meeting he complained to George Seretis about harassment, about Uppal calling him "dog" and about the machines not being safe.

[26] The next day, March 10, 2009, Chopra made a formal complaint about safety to the Ministry of Labour.

[27] On March 12, 2009, Chopra received a letter from Ms. Geena Grigoriadis ("Grigoriadis"), Chairperson of the Easy Health and Safety Committee, including the following:

It had been brought to the attention of the Health and Safety Committee that on March 09, 2009 you have admitted that you had slept on your shift because you were tired and for personal reasons. You also find it difficult to work the midnight shift because you are tired. As a shift supervisor, you have a duty and responsibility to supervise your shift. The company and employees from your shift depend on you as their shift supervisor and mechanic to perform your responsibilities effectively.

You have placed your health and safety along with others in jeopardy. As a result of your action, the company had decided to assign you to the 8-4 day shift which took effect Monday March 9, 2009 so that your performance can be closely monitored. You will remain on the 8-4 shift until further notice from your supervisor.

[28] Counsel for Chopra submitted that letter set the tone for events to come. Chopra was unilaterally without warning moved to the “day shift” ([he said permanently, Easy said temporarily.] Between March 12, 2009 and April 30, 2009, Easy took no steps to address Chopra's harassment allegations.

[29] The Minutes of the March 11, 2009 JHSC Meeting indicate that Nick Seretis had been assigned to investigate the matter.

Safety Complaints

[30] On March 13, 2008, a representative of the Ministry of Labour, Mr. Adrian David ("David"), visited the Easy premises to investigate Chopra's complaint. Uppal was present. Machine 5, an old machine, was not operating. I accept Uppal's evidence that on March 13 or March 16, 2009, David asked Uppal to start the machine. Contrary to Chopra's evidence, I accept it would not start when the gate was open.

[31] Counsel for Easy alleged the Ministry determined either that there had been no violations of the Occupational Health and Safety Act or that they were minor.

[32] The evidence is uncontroverted that after March 13, 2009, Chopra refused to work on Machines 5 and 6.

[33] Counsel for Chopra cited Chopra's evidence that after the first Ministry of Labour visit, a stop work order was issued on Machine 5. Easy was required to draft maintenance and repair procedures for the blow-molding machines, to conduct additional training for maintenance and repair staff, to hold a Joint Health and Safety Committee meeting to which all staff were invited [Easy's JHSC was required to introduce its representatives to all of its employees]; to revise and finalize written lock-out/tag-out procedures, and to fix the metal stairs used to access Machine 5. During the first Ministry of Labour visit, one of the comments in the notice was that the JHSC members were not visible for workers and issues were not communicated.

[34] At a second visit on March 16, 2009, the Ministry of Labour ordered Easy to provide information and instruction on specific tasks, rules and procedures to forklift and pump-up truck operators, and to draft and implement skid moving and storing procedures.

Fifth Written Warning [Third re Performance Issues]

[35] Easy relied on an incident on April 23, 2009, when a representative of the Quality Control department, Ms. Asha Rani ("Rani"), mentioned to Chopra that the gram weight on plastic bottles being blown on a particular machine was incorrect. Rather than adjusting the weight, Chopra adjusted the parison. As a result, two hours of bottle production on that machine had to be destroyed.

[36] Chopra admitted he received a warning letter, including the following:

On April 20, 2009 the Q.C., Asha Rani reported to you to correct the gram weight on the 1250CC Metamucil bottle. You failed to do the work properly because instead of adjusting the weight you were adjusting the parison instead. The result was 2 hours of production had to [be] destroyed. Munish this is your third warning.

Additional Safety Complaints

[37] On April 23, 2009, Chopra complained his working conditions were unsafe because (1) he had not been provided with appropriate gloves for a job involving chemical use;(2) he had been told to do a job that should have been done by two people.

[38] Chopra said he was being required to clean moulds with the extruder running, to dip a soft cloth in mineral spirit, and to clean the surface of the moulds. [A representative of the Ministry noted that the quantity of mineral spirit or degreaser being used was minimal and was absorbed in the white soft cotton material.]

Third Ministry of Labour Visit

[39] At Chopra's request, a representative of the Ministry of Labour visited Easy again on April 27, 2009. No orders were issued. Chopra's complaint was directed to be handled internally. His previous concern regarding guarding of equipment was not confirmed.

[40] Sometime between April 20 and April 27, Chopra was moved to the maintenance department, working under the supervision of Byron Manuel.

Sixth Written Warning

[41] Easy relied on incidents on April 27, 2009 and April 28, 2009, when Chopra allegedly ignored Manuel's repeated instructions to wear a face mask as part of the personal protective equipment required when using a degreasing agent [in accordance with a Workplace Hazardous Material Safety Data Sheet]. As a result, Chopra was suspended for three (3) days without pay commencing Tuesday, May 5, 2009. He received a written warning letter including the following:

On Monday April 27, 2009 and Tuesday April 28, 2009 your supervisor requested several times that you wear a face mask as part of the PPE required for extended use of a degreasing agent as per the MSDS. You have been instructed to wear the mask and you refused to wear the PPE provided to you. As a result of not properly following health and safety regulations, you are hereby suspended for three (3) days without pay starting Tuesday, May 05. Please report back to work on Friday May 8 at 8:00am.

[42] On April 30, 2009, a meeting was held to address Chopra’s harassment complaints, attended by Chopra, Manuel, Kumar, Nick Seretis and Grigoriadis

[43] All discussion at that meeting was recorded. [A transcript is at Ex. 16.] Chopra voiced his complaints, including that Uppal was calling him names in Punjabi: dog, monkey. "… he's accusing me so many times." He alleged Uppal had told him to take off a ring, contrary to his religious belief and had told him he could wear it on his toe. Uppal told him he could not park in front of the main entrance. Uppal harassed him. "He has a habit of calling home." He referred to an incident on April 23 when Uppal called to ask, "Why are you late?" By the time he came in late, he had received four [missed] calls. Chopra said, "I have already informed I am in personal emergency. He is calling 4 times to harass me." He complained Amrik Cheema was also calling him "dog."

[44] After Chopra started working for Manuel, he was asked, "Are you comfortable with Byron [Manuel]?" Chopra said, "It is not a question about comfort. I have the right of refusal to work …How can the company deprive me or put me directly on cleaning?" Manuel said, "You refused to do the cleaning of a mould … which was part of your duties … You have refused to do the task you have always been doing for the last 8 years … you have submitted a letter to the Ministry … they cannot force you to do that job … they took you off that job." Manuel gave him protective equipment and Chopra refused to wear it.

[45] Chopra complained that instead of having his harassment concerns satisfactorily addressed at the April 30 meeting, he received a 3-day suspension based on Manuel's complaint that Chopra had refused to wear a face mask. (Exhibit 7 – Tab 39). Counsel for Chopra pointed out that Chopra's file contains no notes with respect to verbal warnings that Manuel allegedly gave to Chopra about wearing a face mask.

May 7, 2009 First Complaint to Family Doctor

[46] On May 7, 2009, Chopra complained for the first time to his family doctor that he was being harassed at work and that it had been going on for 3-4 years but it had recently been getting worse. Dr. Price prescribed trazadone. A week later Chopra told Dr. Price his employers, the company owner and manager were teasing him and trying to get him to quit. Dr. Price suggested he consider filing a claim with the WSIB.

May 15, 2009 Incident

[47] Easy relied on another incident on May 15, 2009, when Chopra allegedly had a conversation with a Mr. Rajvinder Gill ("Gill") in the Easy washroom area. Gill advised management that in that discussion, Chopra had asked him to help "build a case" against Amrik Cheema and Uppal and to agree that they had been calling Chopra names and harassing him. Gill had not witnessed any such behaviour and refused to do so. Instead, he reported Chopra's words to Easy management.

[48] The report about Gill's conversation with Chopra included the following:

On 15-May-09 approximately 09:15AM Uppal informed me that Rajvinder Gill (Blender) spoke to him with regard Munish Chopra.

The conversation between Munish Chopra and Rajvinder Gill took place in the washroom between 0805am and 0830am on the 15-May-09 at Easy Plastics.

Rajvinder Gill claims that Munish Chopra asked Rajvinder Gill to agree with him that Amrik Cheema and Uppal Gurminder are name calling and harassing him, and by doing so it will help him build a case against Amrik Cheema and Uppal Guriminder.

May 20, 2009

[49] Easy relied upon another incident on May 20, 2009, when Chopra allegedly told co-workers that the Ministry of Labour representative, Mr. Adrian David ("David") was a "rat" and that he had been paid by Easy not to find any wrongdoing on its part with respect to Chopra's complaints to the Ministry of Labour.

[50] Three of Chopra's co-workers signed the following statement:

There are reports that Munish Chorpra is telling his Co-workers that the Ministry Of Labours Rep –Adrian David is a 'Rat' and has been paid by the Company not to award any of his complaints about the Company in his favour.

In a conversation with Byron Manuel, Munish Chorpra stated that Adrian David is a "Rat' and that he(Munish Chorpra) telephoned the Ministry Of Labour and expressed his beliefs. In turn the Ministry sent a Supervisor out with Adrian David.

Munish Chorpra has gone on to repeat this conversation content to Dukbajan Singh and Moh Khan.

The Termination Meeting – May 22, 2009

[51] On May 22, 2009, Uppal and Easy's President and owner, George Seretis called Chopra into the Easy boardroom. Chopra gave evidence that he was brought into the boardroom unexpectedly with George Seretis and Uppal. Chopra complained that it was Uppal [the individual about whom Chopra had raised harassment concerns], who told him he was being terminated. He was given a termination letter. Uppal walked him out during the shift (while employees were still around) and told people he had been fired.

[52] Counsel for Chopra submitted the termination letter did not raise performance issues. Rather, it set out allegations of conspiracy to make false allegations, of harassing behavior against senior management of Easy, slanderous comments and creating a poisoned work environment.

[53] The termination letter included the following:

Your attempts to engage these coworkers […] has created a poisoned work environment and shows a clear lack of judgment on your part and failure to act in a manner which is reasonable both towards your co-workers and as an employee of Easy Plastics.

Management has been advised by your co-workers that you are spreading rumours that the Ministry of Labour representative […] must have been paid off by Easy Plastics. By your statements, you are accusing Easy Plastics of committing a crime and violating the provisions of the Health & Safety Act. Since these allegations are completely without merit, you have further created a poisoned work environment and have breached your duty of care to your employer.

You further refer to Mr. Adrian David, the Ministry Official, as a 'rat'.

All of your actions taken together, have caused management to conclude that it can no longer continue to employ you.

[54] Counsel for Chopra submitted that no independent investigation was conducted prior to the decision to terminate.

[55] Easy did not provide a reference letter for Chopra. He gave evidence he was not entitled to obtain regular EI benefits because Easy alleged he had been dismissed for cause.

Damages Evidence

[56] Chopra gave evidence and his counsel submitted that as a result of the manner of his termination, he suffered mental distress, embarrassment, damaged self-esteem and depression. Chopra's counsel submitted Easy attacked Chopra's reputation and misrepresented the reason for his dismissal.

[57] Dr. Price said that on May 24, 2009, Chopra tearfully informed him he had been fired. His wife reported he had been expressing thoughts of persecution, saying he thought someone was eavesdropping on their telephone conversations and trying to access their computer passwords. As a preventive measure, Chopra erased his computer hard drive. Dr. Price was so concerned that he filled out a form one and advised Chopra's wife to take him to the emergency department for further assessment and treatment.

[58] After Chopra consulted with Dr. Price on May 24, he was treated first at the CAMH emergency department, then for several weeks as an out-patient, ending on July 8, 2009. He was assessed and treated by Dr. Bakshi, who noted that Chopra had suffered from a major depressive episode.

[59] Chopra continued treatment with Dr. Price, his family physician. Chopra claimed someone had damaged his car while it was parked in his driveway. He said he suspected his former manager was responsible.

[60] Dr. Price opined that Chopra's major depressive episode had been precipitated by Easy. He mentioned two stressors, harassment at work and the termination of his employment. Dr. Price was unaware of the warnings Chopra had received from Easy in the same period and agreed in cross-examination that receiving them could have been stressful.

[61] Chopra received $6,700 Employment Insurance sick benefits for 15 weeks from Service Canada.

[62] Dr. Price expressed the view that Chopra could not retrain for gainful employment until 2011. He said Chopra's mood improved slowly. By June 2010 he was taking upgrading courses although he continued to exhibit residual depressive symptoms. In about March 2011, he started working part-time.

[63] At present, his annual salary is $26,000.

[64] Dr. Price gave evidence that Chopra felt persecuted. He reported things that may or may not have actually happened. Dr. Price reserved judgment as to whether these things were actually happening, e.g., whether Chopra's manager had damaged his car. It was unclear to Dr. Price whether Chopra's depressive episode disorder had a psychotic component.

[65] Dr. Bakshi, who treated Chopra at CAMH, did not contact anyone at Easy to try to verify Chopra's reports. In his consulting note dated June 21, 2009, he wrote: "Impression persecutory flavour. Would be imprudent to refer to this as psychotic. We will continue to evaluate workplace allegations and assess whether his beliefs do indeed reflect psychotic symptoms and whether any psychotic medication is indicated."

[66] As noted earlier, Chopra claimed that his termination was in essence a reprisal for bringing his legitimate health and safety concerns to the attention of the Ontario Ministry of Labour contrary to s. 50 of the Health and Safety Act. He was harassed and shoddily treated by Easy and its Managers. Easy's treatment caused him to be seriously depressed and in addition to damages in lieu of notice he is entitled to aggravated and punitive damages. Chopra submitted that Easy acted in bad faith and failed to fairly, fully and impartially investigate to understand his version of events.

Findings of Fact

Liability

[67] Chopra's assertions that his termination was in essence a reprisal for bringing legitimate health and safety concerns to the attention of the Ontario Ministry of Labour and were contrary to s. 50 of the Health and Safety Act were vigorously contradicted by a number of witnesses called to give evidence by counsel for Easy, including Nick Seretis, Uppal, Rossi, Grigoriadis and Manuel.

[68] I accept the evidence of Grigoriadis that the Health & Safety Committee minutes were posted in the lunch room. A green Health & Safety booklet hung by a chain or string. I also accept that Easy's policies were posted and readily available to all employees.

[69] I reject Chopra's evidence he was prevented from reviewing them.

[70] I accept Uppal's evidence that the tool room was usually locked, that he found the door to the tool room open on March 12, 2007, and that Chopra and Syed admitted what had happened. Chopra received the warning letter dated March 12, 2007, Tab 13.

[71] I reject Chopra's evidence he had no opportunity to dispute the facts set out in several of the warning letters. I find he could have written letters setting out his version of the facts, and had he done so, Easy would have been obliged to keep them in his file.

[72] With respect to the February 8, 2008 incident, Easy had security cameras in the plant and parking lot. The employees knew they were in use. I accept Rossi's and Nick Seretis' evidence that they satisfied themselves that the three employees left the premises by reviewing the films taken by those cameras. I accept it was Chopra's responsibility to report this absence to management. I accept Rossi's evidence that the three employees who left did not object to their pay being docked because they admitted to leaving the Easy premises without punching out. I do not accept the submission of Chopra's counsel that a written policy was required before employees would understand that they must punch out before they could leave. I accept Uppal's evidence he signed the warning letter and that Chopra said nothing when he presented it to him.

[73] I accept Grigoriadis' and Nick Seretis' evidence that on weekends [when the February 16, 2008 incident happened], Chopra was responsible for ensuring that all the boxes were labeled before placing an approval sticker on the skid. Rossi gave a written warning to Chopra.

[74] Chopra's evidence about his concerns that Machine 16 was unsafe were not borne out.

[75] With respect to the events of March 9, 10, 11 and 12, 2009, I accept Uppal's evidence that Chopra admitted to the people present at the meeting on March 9, including Uppal, that he had fallen asleep during the afternoon shift. I find that Easy was justified in transferring Chopra to the day shift, effective March 9, 2009, until further notice, so his condition could be monitored.

[76] I accept Uppal's evidence that Chopra was upset about being forced to work on the day shift because he said he had been looking after his two year old child during the day while his wife worked. I reject Chopra's evidence on the point.

[77] After Chopra complained to George Seretis on March 9, Chopra met with Uppal and Manuel on March 10, 2009. They asked him to tell them exactly why he felt Machines 5 and 6 were unsafe. I accept Uppal's and Manuel's evidence that Chopra was unable to say why Machine 5 was unsafe. I find they investigated the machines before the minutes of the Health & Safety Committee were taken on March 11. The members of the Health & Safety Committee did address Chopra's concerns at its meeting held on March 11.

[78] Ex. 44, the March 11 minutes, reflect that Chopra's complaints of harassment were to be investigated immediately. I find Uppal was justified in insisting Chopra remove his ring as it posed a safety hazard and in asking him not to park in the area of the parking lot reserved for office workers. He was not picking on Chopra. Chopra was justifiably warned for failing to ensure labelling had been done properly before approving a skid. He was properly warned for failing to adjust the weight of bottles being manufactured. He was properly disciplined for allowing employees to leave the Easy plant during a shift without punching out.

[79] I accept that Easy was justified in sending the April 20, 2009 warning letter to Chopra. I find Chopra failed to adjust the weight of the bottles even after Rani brought to his attention the incorrect weight of the bottles being produced.

[80] Sometime between April 20 and April 27 [Chopra said April 27], Easy addressed Chopra's harassment complaints, in part, by moving Chopra to a position in maintenance. As such, Chopra no longer had to report to Uppal, the person whom Chopra claimed had been harassing him. Chopra was then under Manuel's supervision.

[81] I accept Manuel's evidence that on about April 27 or 28, 2009, he ordered Chopra to wear a mask because Chopra had been complaining about lack of proper safety equipment. Chopra refused, demanding another type of mask. When he was offered a used mask of the type he was demanding, with a new filter, Chopra refused to use it.

[82] At the April 30, 2009 meeting, Manuel said, "Don't say no one provides you with gloves. You choose not to use them." Chopra replied, "They are not proper gloves … the cotton gloves, it will absorb the toxic substances."

[83] I accept Manuel's evidence that Chopra refused to wear any mask or any gloves.

[84] When Manuel said Chopra had refused to wear the mask provided, Chopra accused Manuel of picking on him.

[85] I find, in part based on April 30 minutes, that Easy did try to investigate Chopra's complaints and did remove him from the direct supervision of Uppal about whom he had been complaining.

[86] I find Chopra refused to follow Manuel's instructions.

[87] Chopra's complaints to the Ministry of Labour about the safety of Machine 16, his complaints to the Ministry that Machine 5 was unsafe because it could be run with the gate open and his complaint about Easy's failure to provide proper protective equipment were not borne out.

Damages

[88] I accept the medical evidence that after termination, Chopra suffered from a depressive episode.

[89] Based on the evidence of Dr. Bakshi, and despite the fact that both Dr. Price and Dr. Bakshi tried to be supportive of their patient, it is clear that Dr. Bakshi, while treating Chopra on the assumption that his complaints were valid, wrote "impression persecutory flavour" and withheld judgment as to whether his beliefs reflected psychotic symptoms and for instance judgment as to whether someone had been eavesdropping on his phone and as to whether his former manager had damaged his car. They withheld judgment on whether he had been persecuted in the manner he had recounted.

The Issues and the Law

[90] The issues to be determined are the following:

(1) Did Easy have just cause to terminate Chopra's employment?

(2) If Easy did not have just cause, what is the period of reasonable notice?

(3) Did Chopra fail to mitigate his damages?

(4) Is Chopra entitled to aggravated damages for bad faith termination and negligent infliction of mental suffering? If so, what is the appropriate quantum for same?

(5) Is Chopra entitled to punitive and exemplary damages? If so, what is the appropriate quantum for same?

Issue 1: Did Easy have just cause to terminate Chopra's employment?

[91] The employer has the onus to prove just cause on a balance of probabilities.

[92] In McKinley v. BC Tel 2001 SCC 38, the Supreme Court adopted a contextual approach to the issue of just cause. In that regard, the Court wrote at pages 177 and 181:

the question to be addressed is whether, in the circumstances, the behaviour was such that the employment relationship could no longer viably subsist.

just cause can only be determined through an inquiry by the trier of fact into (a) whether the evidence demonstrated employee misconduct and (b) whether, in the circumstances, such misconduct sufficed to justify the employee's termination without notice.

[93] The Court also applied the principle of proportionality and held that a "balance must be struck between the severity of an employee’s misconduct and the sanction imposed." McKinley, supra, page 188, para 53.

[94] In Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 43692 (ON CA), the Ontario Court of Appeal wrote at paragraph 49:

[49] Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional -- dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.

It held the Court must determine the nature and extent of the misconduct; **consider the surrounding circumstances, including **the particular circumstances of both parties. In relation to the employee, consideration should be given to factors such as age, employment history, seniority, role and responsibilities. In relation to the employer, consideration should be given to factors such as the type of business in which the employer is engaged, any relevant employer policies or practices, the employee's position within the organization, and the degree of trust reposed in the employee; and **decide whether dismissal is warranted; **consider whether the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship.

[95] In Daley v. Depco International Inc., 2004 11310 (ON SC), at paras 25 to 33, Echlin J. summarized the law in respect of cumulative just cause. He wrote:

CUMULATIVE JUST CAUSE

[25] It is well settled law that there is no fixed rule of law defining the degree of misconduct that justifies summary dismissal without notice. Indeed, it is ultimately a question of fact: Clouston v. Corry, [1906] A.C. 122 (N.Z.P.C.)

[26] Over 100 years ago, our Ontario Court of Appeal dealt with the use of accumulated past-conduct of employees. In McIntyre v. Hockin (1889), 16 O.A.R. 498 (Ont.C.A.) at p. 502, Maclennan J.A., in speaking for the Court observed,

… whenever any new misconduct occurs, the old offences may be invoked and may be put on the scale against the offender as cause for dismissal. …

[27] More recently, in Nossal v. Better Business Bureau reflex, (1985), 12 C.C.E.L. 85 (Ont.C.A.) Zuber J.A., in speaking for the Court, stated:

In my respectful view, past misconduct of an employee, whether sufficient to amount to just cause for discharge or not, can be used or put on the scale with subsequent misconduct to determine if the accumulation amounts to just cause (at p.90).

[28] Mr. Justice Zuber also clarified that the employee’s cumulative misconduct need not be similar to be weighed together when he commented that:

The critical question remains, whether or not the accumulated misconduct, composed of similar and dissimilar misconduct, amounts to just cause (at p.90) [emphasis added]

[29] While there is lesser authority to the contrary, it is the quality, and not the similarity, of the accumulated misconduct that is determinative of whether the employee has evinced an intention to no longer be bound by the employment contract.

[30] One of the most oft-quoted comments about cumulative cause comes from Mr. Justice Galt of the Manitoba Court of Kings Bench in Ross v. Willards Chocolates Ltd., 1927 345 (MB KB), [1927] 2 D.L.R. 461 (Man.K.B.) at p.469:

It is not always easy for an employer who finds an employee thoroughly unsatisfactory and deficient in obedience or competence to point to a single instance which would justify his summary dismissal. But I do not think that it is necessary to rely upon such single instance when the employee’s conduct shows a general laxity and disregard of instructions …

[31] A similar result was found by Parker J. in Matheson v. Matheson Industrial Trucks Ltd., (1984) 4 C.C.E.L. 271 (Ont.H.C.) and Atkinson v. Boyd, Phillips & Co. 1979 478 (BC CA), (1979), 9 B.C.L.R.. 255 (C.A.).

[32] A concise and straightforward statement of the law was made by Gotlib, Dist. Ct. J. in 1987:

The law is clear, however, that an accumulated series of events entitles the [employer] to dismiss for cause. Scott v. Domtar Sonoco Containers Inc. (1987), 20 C.C.E.L. 290 (Ont. Dist. Ct.) at p.299; aff’d at: 17 A.C.W.S. (3d) 731 (C.A.)

[33] Russell J. in Duffett v. Squibb Canada Inc, (1992), 1991 7038 (NL SC), 39 C.C.E.L. 37 (Nfld.S.C.-T.D.) at p.42 stated:

Warnings are sufficient where they refer to the concerns of the employer and where, objectively, could be implied that the employee’s job is in jeopardy unless the employer’s concerns are satisfied. There is no requirement that the warnings be in writing; however, it must be given in clear terms and the employee must understand and appreciate the significance of the warning …

[96] I am of the view that Easy gave Chopra ample verbal and written warnings of its dissatisfaction with his performance and conduct. It gave him every opportunity to improve his behaviour. Easy documented his behaviour and told Chopra he was required to correct it.

[97] Chopra's behaviour fell below any reasonable standard of conduct. The cumulative incidents were not minor or trifling. They affected the workplace as a whole.

[98] Easy had just cause to terminate Chopra's employment because of the performance issues set out earlier and in addition insubordination and conduct specifically designed to harm Easy, including spreading rumours that Easy was closing.

[99] As Echlin J. stated it in Daley: "The conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough 'bricks to constitute a just cause wall.'" In my view there were sufficient bricks here to constitute a just cause wall.

Disposition

[117] In the result, the action is dismissed.

[118] Counsel may make brief costs submissions in writing on or before June 30, 2014.

M.A. SANDERSON

Released: