ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-62507

DATE: 2015/06/10

BETWEEN:

Glen Lewis
Plaintiff

– and –

Lavern Heideman & Sons Limited
Respondent

Jaye Hooper, for the Plaintiff

Christopher McClelland, for the Respondent

HEARD: April 23, 2015

DECISION ON MOTION

justice patrick smith

[1] This is a motion for partial summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, (R. 20.4), brought by the Plaintiff in a wrongful dismissal action.

[2] On this motion, the Plaintiff asks the Court to:

(a) find that he was wrongfully dismissed,

(b) determine the proper notice period, and

(c) award an amount for pay in lieu of proper notice.

[3] The damages the Plaintiff seeks for mental distress, long-term disability benefits, defamation, etc. are to be determined at trial and are not the subject of this motion.

[4] The Respondent opposes the motion on the basis that it is not a proper case for summary judgment or partial summary judgment primarily because it raises genuine issues requiring trial.

Facts

[5] Pembroke Lumber hired the Plaintiff, Glen Lewis, as a forklift operator in 1984. In 2014, the Respondent, Lavern Heideman & Sons, owned by Edison Heideman and Kristopher Heideman, purchased the assets of Pembroke Lumber. The Asset Purchase Agreement required that the Respondent offer employment to the employees of Pembroke Lumber at the same rate of pay and on comparable terms.

[6] At the time of the purchase, the Plaintiff was earning $22.50 per hour. The Respondent made an offer of employment at this rate of pay. The offer of employment also indicated that there would be continuity of employment, such that the Plaintiff’s date of hire would be his most recent date of hire with Pembroke Lumber.

[7] The Plaintiff accepted the Respondent’s offer of employment and began work on May 1, 2014.

[8] The Plaintiff had difficulty adjusting to the changes the Respondent made to the operation of the lumberyard, particularly with respect to the method he was to follow loading trucks.

[9] The Plaintiff had worked for several years as a forklift operator and had his own method of loading trucks whereby he would set out the entire load before commencing loading to ensure that smaller items could be stacked on larger items thereby balancing the load for safety purposes.

[10] The Respondent, by contrast, wanted the forklift operators to load trucks as soon as the trucks arrived, regardless of whether the entire load was ready.

[11] On June 26, 2014, at approximately 3:30-3:45 p.m., a truck, driven by Terry Maves, arrived for loading at the Pembroke lumberyard. By the time the Maves truck arrived the Plaintiff had already worked a full day and was scheduled to finish work at 4:00 p.m.

[12] Kris Heideman was remotely monitoring the Pembroke site from Eganville. When he noticed that the Maves truck was sitting empty he called the Pembroke site and asked the Plaintiff’s supervisor Terry Drake, to order the Plaintiff to begin loading the truck.

[13] The Plaintiff admits that upon receiving this direction he lost his temper partially because he became aware from what his supervisor said that he was being watched on surveillance and also because he felt it was unsafe to load trucks in this fashion.

[14] The Plaintiff finished work that day at 7:24 p.m. - approximately 3 ½ hours after his shift was due to be over.

[15] After Mr. Maves left with the load, the Plaintiff made various gestures to the surveillance camera which was being monitored by Kris Heideman. The Respondent considered these gestures obscene, threatening and disrespectful.

[16] The following day, on June 27, the Plaintiff returned to work and was met by his supervisor Drake who sent him home with pay and told him not to return until he was called in.

[17] On July 1, 2014 the Plaintiff was called to attend a meeting at the lumberyard. Upon arriving, the Plaintiff was met by Terry Drake and Edison Heideman and was immediately given a letter terminating his employment.

[18] The termination letter cited the June 26 incident as the reason for dismissal and offered to pay four weeks of additional pay provided the Plaintiff sign a waiver. The Plaintiff became upset and asked for a second chance, but was told the decision to terminate him was final.

[19] On July 11, 2014, the Respondent called the Plaintiff and requested that he come to the lumberyard to attend a meeting. At this meeting, the employer made an offer of employment, which involved the Plaintiff again working as a forklift operator, but at a lower rate of pay ($15.24 per hour).

[20] The written offer of employment stated that the Plaintiff had been terminated “due to a number of episodes of gross misconduct that occurred in late June” and further stated that he “would be offered a different role, still operating a fork lift but with significantly reduced responsibilities” with pay reduced accordingly. The offer required the Plaintiff to agree that he had been terminated for cause.

[21] The Plaintiff rejected the offer.

Position of the Parties

Plaintiff’s Position

[22] It is the Plaintiff’s position that the Respondents wanted to terminate his employment because they believed he was overpaid and that they used his outburst on June 26, 2014, as an excuse to fire him and then hire him back at a much lower pay rate.

[23] The Plaintiff states that the employer did not consider or investigate why the Plaintiff did not want to load the trucks in the manner instructed nor did they undertake progressive discipline, contrary to the company’s discipline policy, or offer an alternative remedy short of termination. In short, the Plaintiff maintains that he was unfairly and summarily fired contrary to the principle requiring proportionality between the employee’s misconduct and the sanction imposed. (McKinley v. BC Telephone, 2001 SCC 38, [2001] 2 S.C.R. 161 at para. 53)

[24] The Plaintiff disputes the allegations of the Defendants that there were other incidents of misconduct leading up to the June 26 incident.

[25] The Plaintiff also denies that there was a meeting prior to the June 26 incident at which the Plaintiff received a verbal warning with respect to the manner of loading trucks.

[26] The Plaintiff submits that he asked his supervisor to arrange a meeting on June 12, 2014 with Kris Heideman because he was upset by changes to his vacation benefits as well as the manner in which his employee benefits were paid. There is a factual dispute about what took place at this meeting and what the participants said.

[27] The Plaintiff maintains that it only after they discussed the vacation pay and benefit issues that Kris Heideman raised the topic of how trucks were to be loaded and instructed him to change his loading practice.

[28] Although the employment contract that the Plaintiff signed with Heideman purports to cap his entitlement to severance at eight weeks, the Plaintiff submits that this term is unenforceable because the termination provisions are silent regarding entitlement to benefits upon termination, and are thus, in violation of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), which requires that employment contracts provide the minimum compensation required under the ESA. Relying on Stevens v. Sifton Properties Ltd., 2012 ONSC 5508, 2012 CarswellOnt 16792, the Plaintiff argues that, because the termination provisions violate the ESA, the employer is precluded from relying on those provisions to cap the Plaintiff’s severance.

[29] Based on the Plaintiff’s age, service of 30 years, lack of formal education, and the employer’s accusation that the Plaintiff would return with a gun to the workplace, which has essentially removed any possibility of the Plaintiff finding work in his community, the Plaintiff argues that he is entitled to 36 months’ pay in lieu of notice and an additional sum to replace the value of his benefits package.

[30] With respect to mitigation, the Plaintiff submits that the report of his treating psychiatrist is sufficient evidence in support of the Plaintiff’s claim that he has been rendered disabled by the Respondent’s conduct and that he is precluded from working due to his medical condition.

Respondent’s Position

[31] The Respondent expressly denies the Plaintiff’s theory that he was fired for the purpose of reducing his wage. Rather, they argue that they had just cause to terminate the Plaintiff.

[32] The Respondent submits that it is a term of the employment contract that just cause includes “but is not limited to theft, fraud or other dishonest conduct, incompetence, insubordination, and performance issues that are not readily capable of correction”.

[33] The Respondent notes that the Plaintiff received training on its policies regarding discipline and violence in the workplace. These policies set out that violence in the workplace, which includes acts of physical aggression, is not tolerated and will give rise to disciplinary action, up to and including termination of employment.

[34] The Respondent argues that the company did not violate its own discipline policy, which provides that the company has the discretion to opt for immediate dismissal if it is decided that this would be appropriate based on the severity of the misconduct.

[35] The Respondent submits that, in addition to the Plaintiff’s history of losing his temper in the workplace, there were three incidents of serious misconduct that together amounted to just cause for dismissal.

• During the June 12, 2014, meeting between the Plaintiff, Terry Drake, and Kris Heideman, the Plaintiff refused to follow instructions, disparaged Kris and Edison Heideman, and made derogatory comments about his co-workers and the workplace and used profane and aggressive language.

• On June 20, 2014, the Plaintiff was insubordinate and insolent during a discussion with Mr. Marquadt. He again disparaged Kris and Edison Heideman and used profane and aggressive language towards Mr. Marquadt.

• On June 26, 2014, the Plaintiff reacted in a violent and angry manner when asked to load a truck in the manner instructed by Kris Heideman, as described above.

[36] The Respondent also argues that the termination was not wrongful on the basis of after-acquired cause.

[37] After interviewing a number of individuals the Plaintiff had worked with at the lumberyard, the Respondent states that they reasonably concluded that he had a significant history of losing his temper, driving his forklift at excessive speeds, throwing objects, and intentionally damaging company property. According to the Respondent some of the Plaintiff’s co-workers purposely avoided the Plaintiff because they felt unsafe around him.

[38] In the alternative, the Respondent states that, if they did not have just cause to terminate the Plaintiff, the employment agreement sets out the Plaintiff’s entitlement upon termination, which is to the minimum notice period required under the ESA which amounts to eight weeks’ notice.

[39] In the further alternative, the Respondent maintains that the reasonable notice period is 10 to 15 months.

[40] The Respondent submits that, if the Plaintiff is entitled to compensation, he has failed to mitigate his damages because he has admitted that he has not taken any steps since July 1, 2014, to find new employment, and that he does not intend to take any steps between now and the end of the requested 36 month notice period. The Respondent argues that the limited documentation submitted by the Plaintiff does not support his claim that he is currently medically incapable of looking for work. In particular, the Respondent states that the only documentation that refers to the Plaintiff’s inability to work is a letter from the Plaintiff’s treating psychiatrist, dated February 27, 2015, which states that the Plaintiff was “unable to work at this time” due to “medical issues.”

Issues

[41] The issue on this motion is whether this is an appropriate case for summary judgment or partial summary judgment.

The Law

Summary Judgment

[42] Rule 20 of the Rules of Civil Procedure provides that summary judgment shall be granted where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. [Rules of Civil Procedure, RRO 1990, Reg. 194, as amended, Rule 20.04]

[43] The onus is on a Plaintiff to establish that there is no triable issue with respect to its claims or any defence raised with respect to those claims. [Anderson v. Cardinal Health Canada Inc., 2013 ONSC 5226]

[44] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak], the Supreme Court of Canada discussed summary judgment under Rule 20. Writing for the unanimous court, Justice Karakatsanis called for balance and recognition “that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial” (at para 27). According to the Court, achieving balance in the justice system,

requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. (at para 28)

[45] In keeping with these principles, the test for when summary judgment should be granted is:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (at para 49).

[46] At para 66, Justice Karakatsanis set out a roadmap for motion judges in summary judgment proceedings:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[47] The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication” (ibid, at para 50). Justice Karakatsanis added that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (ibid).

[48] The new fact-finding powers under Rule 20.04(2.1)—which allow motion judges to weigh evidence, evaluate credibility and draw inferences—are presumptively available; judges are allowed to exercise them unless it is in the interests of justice that they only be exercised at trial (ibid, at para. 45). Whether it is against the interest of justice to use these new powers will generally coincide with whether there is a genuine issue requiring trial (ibid, at para. 59).

[49] It is also necessary however, to consider the context of the litigation as a whole – in cases of partial summary judgment, exercise of these powers may be inappropriate if there is a risk of duplicative proceedings or inconsistent findings of fact (ibid, at para. 60). By contrast, the ability to resolve significant issues may justify the use of these powers (ibid, at para. 60).

[50] Under Rule 20.04(2.2), trial judges are permitted to hear oral evidence. The Supreme Court held that “in tailoring the nature and extent of oral evidence that will be heard, the motion judge should be guided by” the principles of “proportionality, timeliness and affordability,” and keep in mind “that the process is not a full trial on the merits, but is designed to determine if there is a genuine issue requiring trial” (ibid, at para 65).

Analysis

[51] The first step following the Hryniak roadmap is to determine whether there are genuine issues requiring trial based on the evidence before the court.

[52] In my view, the issue of whether or not the Respondent had just cause for terminating the Plaintiff is a genuine issue requiring trial.

[53] The Court of Appeal has made it clear that the issue of just cause may be determined on a motion for summary judgment, and not just in exceptional cases.

[54] In Arnone v. Best Theratronics Ltd., 2015 ONCA 63, 2015 CarswellOnt 1230 at para. 12, the Court of Appeal stated that, while the appropriateness of summary judgment must be decided taking into account the specific circumstances of an individual case, “a straight-forward claim for wrongful dismissal without cause…strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.”

[55] The Plaintiff relies on Beatty v. Best Theratronics Ltd., 2015 ONCA 247, 2015 CarswellOnt 5254 [Beatty], in support of its argument that partial summary judgment is appropriate in the circumstances of this case.

[56] However, I note that in Beatty the Court made the following statement at para. 15:

This is a case where it was manifestly fair and just for the motion judge to determine the issues he did in a summary manner. The motion judge had a full evidentiary record. The parties filed affidavits, and the respondent was cross-examined. There were no real credibility or even factual issues relevant to the period of reasonable notice and mitigation. [emphasis added]

[57] In Beatty, the employer admitted that the employee was dismissed without cause – the only issues to determine were length of notice and mitigation

[58] The case at bar is very different. Here, just cause, bad faith and mitigation are live issues and require testimony from multiple witnesses where credibility will need to be assessed and decided.

[59] Many of the material facts are disputed, including the history of the Plaintiff’s workplace behaviour and the events of the June 12th, June 20th and June 26th meetings.

[60] The parties disagree whether or not a warning was given to the Plaintiff and/or the sufficiency of that warning. This issue is relevant to the issue of whether the sanction of termination was proportional to the Plaintiff’s misconduct. Once again, it will be necessary to hear the evidence of several witnesses and assess their credibility.

[61] The Respondent argues that they have after-acquired cause – a position denied by the Plaintiff. This issue also would require the trial judge to make findings of fact and assess credibility.

[62] The Plaintiff disputes the Respondent’s claim that he has a long history of workplace misconduct. The determination of this issue requires testimony from the individuals who allegedly witnessed this misconduct and assessments of their credibility.

[63] With respect to the question of whether partial summary judgment is appropriate, it is my view that there is a real possibility that there would be considerable overlap between the witnesses required to determine the issues on the motion and at trial. In considering the litigation as a whole I am concerned that there is a risk of duplicative proceedings and/or possible inconsistent findings. [see: Baywood Homes Partnerships v. Haditaghi, 2014 ONCA 450]

[64] In the particular circumstances of this case, I find that ordering a “mini-trial” and engaging the fact-finding powers available to me under Rule 20.04(2.1) would not be a timely, affordable or proportional approach. Rather, it would potentially add to the parties’ costs, and risk duplicative findings and inconsistencies.

[65] To summarize, there are genuine issues requiring a trial and require viva voce evidence beyond the limited powers available pursuant to Rules 20.04(2.1)(2.2).

[66] For all of the above reasons, it is my finding that this is not an appropriate case for summary judgment or partial summary judgment.

Disposition

[67] The motion is dismissed.

[68] In the event that the parties are unable to resolve the issue of costs themselves they may file written submissions within 45 days. Submissions are not to exceed 5 pages in length.

Justice Patrick Smith

Released: June 10, 2014.

Released: June 10, 2015