ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-280
DATE: 2015-11-16
B E T W E E N:
DENNIS REGO
Bradley A. Smith, for the Plaintiff
Plaintiff
- and -
NORTHERN AIR SOLUTIONS INC.
Andrew Perrin, for the Defendant
Defendant
HEARD: November 10, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] The plaintiff moves for summary judgment in his simplified rules action for damages for wrongful dismissal against his former employer.
[2] Simply stated, the plaintiff argues that the defendant has failed to discharge its onus of proving, on a balance of probabilities, cause for termination. To do so, the employer must prove misconduct and that the misconduct justifies termination.
[3] On a motion for summary judgment, the responding party must put its best case forward and the judge is entitled to assume that there is no other evidence that would support the responding party's position.
[4] The employer asserts that there are two incidents that each establish cause:
The plaintiff's misrepresentation of credentials at the time of hire; and,
The plaintiff's failure to complete company training
[5] Before considering these allegations, it is helpful to set out the circumstances surrounding termination.
[6] By email on February 27, 2014 at 7:50 PM, the plaintiff received a letter from the defendant's chief pilot advising him that his employment was terminated immediately "due to your lack of cooperation to participate in required company training."
[7] Earlier that day, the plaintiff and Heather Vandertas, president of the defendant, had the following text message exchange:
Hi Lindsay will be up there next Wednesday Thursday to catch up all of your training winter ops etc Thanks
Feb 27, 2014 13:52:07
Reply: So I’m loosing two days off?
Feb 27, 2014 14:02:41
Well No…It is part of your work…bcuz u were holidaying when everybody else did the training and it’s part of your job!! You have had lots of days off. :)
Feb 27, 2014 14:04:30
Reply: Holidays was agreed upon by you an I. There was nothing said about loosing two days off to make up for it. Every day off I have is what’s agreed upon between NAS and I
Feb 27, 2014 14:04:51
Reply: Am I getting overtime for those two days?
Feb 27, 2014 14:05:04
Reply: Or two days off in lieu on my week on?
Feb 27, 2014 14:07:44
Nothing…everyone else did it while you were away you have a job that’s part of it :)
Feb 27, 2014 14:10:38
Reply: Well if I’m not compensated for giving up two days off that I’m contracted to have then don’t expect me to be at the training. My days off are my days off. You can schedule the training when I’m on. As you told me on the phone “we don’t mess with your days off”
1. Misrepresentation of credentials at time of hire
[8] The only direct evidence from the defendant on this allegation is contained in the affidavit of Gerald Vandertas, the operations manager of the defendant. He deposed that he asked the plaintiff if he was "in possession of an ATPL (airline traffic pilots licence) and he advised me that he was in possession of an ATPL."
[9] In contrast the plaintiff deposed that there is "no way I would have told Heather, or anybody, that I had an ATPL when I did not."
[10] The defendant also relies on indirect evidence to support the assertion that the plaintiff misrepresented his credentials. Some background is necessary to explain. The plaintiff was previously employed by a competitor flying the same aircraft and serving the same air ambulance contract (ORNGE). He possessed a commercial pilot licence. He was also qualified to fly the Pilatus aircraft that he flew for his prior employer and the defendant.
[11] Prior to his hire by the defendant, the plaintiff completed a form that asked for his pilot's licence and his qualifications on the Pilatus. He provided his licence –CA415008. He did not possess an ATPL. However, he had completed the written component of the test but not the required flight check for the ATPL. The plaintiff also subsequently emailed his ATPL written test results to the defendant. He deposed that he did this to prove that he had passed the written exam component, not to represent that he had an ATPL licence. He deposed that, if he had an ATPL, the licence is proof and there would be no need to submit test results.
[12] On cross-examination, Gerald Vandertas admitted that he expected his chief pilot to have checked the plaintiff's licence and that the chief pilot did not tell him that the plaintiff did not have an ATPL licence. He further admitted that the plaintiff's credentials were forwarded to ORNGE for approval and that ORNGE did not raise any issue with the plaintiff's qualifications as pilot.
2. Failure to complete training
[13] The plaintiff was required to complete training for flight operations in the winter. When this training was first offered, in September 2014, the plaintiff was on holidays. He was given written material to submit. He claims that he did submit this material. The defendant claims that he did not. Apart from the text message reproduced at paragraph [7], other facts regarding the failure to complete training are in dispute.
[14] The chief pilot, Lindsay Cadenhead, deposed:
That he contacted the plaintiff and advised him that if he did not complete the required training he would not be able to fly the plane;
That he implored the plaintiff to complete the training materials immediately as it was a regulatory requirement to fly the airplane; and,
That he contacted the plaintiff and advised him again that he must complete the training materials and that his failure to do so immediately would result in his termination from the defendant.
[15] The plaintiff deposed that these conversations did not occur. He further deposed that conversations with the chief pilot were infrequent and that most communication was by text message. He deposed that there not any text messages, other than those on the day of termination, that deal with winter training.
Summary judgment – the law
[16] In Hryniak v. Maudlin, 2014 SCC 7, the Supreme Court of Canada set out the following principles:
"[S]ummary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims." (para. 5)
"There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This would 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." (para. 49)
"When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective.… It bears reiterating 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." (para. 50)
Analysis
[17] Bearing in mind that the defendant is required to put its best case forward, the question is whether, on the evidence before me, the defendant has discharged its onus of proving cause.
1. Misrepresentation of credentials at time of hire
[18] I am satisfied that the defendant has failed to discharge its onus regarding this allegation. I come to this conclusion upon review of the defendant's evidence and its conduct relating to this issue. I am not satisfied that there was a misrepresentation of credentials by the plaintiff. His credentials were never in issue. He had flown the same contract and aircraft with his prior employer. Neither the chief pilot nor ORNGE raised any issues with his qualifications. The fact that the termination letter fails to reference this allegation supports my conclusion.
2. Failure to complete training
[19] With respect to this allegation of cause, I do not have "confidence" that I can find the necessary facts based on the competing evidence with respect to prior communication on this issue. To achieve a "just result", I conclude that there must be viva voce evidence to resolve the conflict in the evidence.
Procedure to be followed
[20] Rule 76.12 provides for summary trial by affidavit with limited examination, unfettered cross-examination, and limited re-examination.
[21] Rule 20.04 (2.2) provides that a judge may order a "minitrial" with oral evidence with or without time limits. Rule 20.05 gives a judge broad powers to design a procedure for the expeditious determination of the matters in issue.
[22] As stated in Hryniak at para. 65, the power to call oral evidence should be used to promote the fair and just resolution of the dispute in light of principles of proportionality, timeliness and affordability."
[23] In this case, affidavits have already been prepared. These affidavits represent the "best case" of the parties. I conclude that proportionality, timeliness and affordability is best served by using these affidavits but permitting cross-examination and re-examination.
[24] During argument, counsel requested an opportunity to make submissions on how the action should proceed should I not grant summary judgment. I agree that it is appropriate that I hear submissions from counsel prior to directing how this matter should proceed.
[25] Accordingly, counsel are to contact the trial coordinator to arrange a time to make submissions to me on procedure. Mr. Perrin may participate by teleconference at this next stage if he wishes.
_ _“original signed by” _
The Hon. Mr. Justice W.D. Newton
Released: November 16, 2015
COURT FILE NO.: CV-14-280
DATE: 2015-11-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DENNIS REGO
Plaintiff
- and -
NORTHERN AIR SOLUTIONS INC.
Defendant
DECISION ON MOTION
Newton J.
Released: November 16, 2015
/cs