2016 ONSC 1008

COURT FILE NO.: 13-1207

DATE: 2016/11/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WENDY FILION Plaintiff

– and –

THE RELIGIOUS HOSPITALLERS OF ST. JOSEPH OF CORNWALL, ONTARIO Defendant

Counsel: Noëlle Caloren of Borden Ladner Gervais LLP, counsel for the Plaintiff Andrea Risk of Cunningham, Swan, Carty, Little & Bonham, counsel for the Respondent

HEARD: October 17, 2016

RULING ON MOTION (SUMMARY JUDGMENT)

LALIBERTE, J.

Introduction

[1] The Court is dealing with two distinct Motions brought by the parties in these proceedings. The Court will issue a separate Ruling on the question of the removal of Plaintiff’s counsel.

[2] The Plaintiff, who has commenced an action for wrongful dismissal against her former employer, seeks a summary judgment on part the claims set out in her Statement of Claim. She relies on Rule 20.01(1) of the Rules of Civil Procedure.

[3] The claims found in the Statement of Claim issued on December 5, 2013 are:

• Damages in the amount of $100,000 for wrongful dismissal;
• Aggravated and/or exemplary damages for infliction of emotional distress in the amount of $50,000;
• Punitive damages in the total amount of $50,000;
• Special damages, the full particulars of which shall be disclosed to the Defendant prior to trial.

[4] Through this Motion, she claims a partial summary judgment whereby the Court would find that she was wrongfully dismissed and entitled accordingly to damages in the amount of $100,000 for lost salary and the value of employment related benefits over the period of reasonable notice.

[5] Her view is that this is an appropriate case for summary judgment.

[6] The Defendant submits that the Plaintiff’s Motion should be dismissed. The circumstances and issues are such that the core questions cannot be properly addressed by means of summary proceedings.

[7] In addition, the Defendant has brought its own Motion requesting the removal of the Plaintiff’s counsel as counsel of record. Specifically, the reliefs sought are:

• A declaration that the Plaintiff’s counsel, Borden Ladner Gervais LLP (hereafter referred to as BLG) is in a conflict of interest;
• An order disqualifying and removing BLG as solicitors for Ms. Filion in these proceedings.

[8] This request is opposed by counsel for the Plaintiff.

[9] Therefore, the issue for the Court is whether the Plaintiff is entitled to a summary judgment on part of her claims against the Defendant:

The Facts

[10] In support of their respective positions, the parties have filed sworn Affidavits coupled with documentary evidence attached thereto as Exhibits.

[11] The Plaintiff relies on her sworn Affidavit dated December 7, 2015.

[12] The Defendant has filed the following evidence:

• Affidavit of Bonnie Ruest dated January 29, 2016;
• Affidavit of Anita Roach dated January 29, 2016;
• Affidavit of Derek Soares dated January 29, 2016.

[13] These individuals were cross-examined on their Affidavit and transcripts were filed in these Motions.

[14] The Defendant is a registered charity operating in the City of Cornwall. It provides care for the elderly and for individuals with special needs.

[15] The Plaintiff was hired by the Defendant as a Payroll Officer on December 3, 2001.

[16] During that period and up to January 2004, the Defendant provided acute and complex continuing care at the Hotel Dieu Hospital and long term care at St. Joseph’s Villa.

[17] This structure was changed in January 2004. All of the acute care services were transferred to the Cornwall Community Hospital with the Defendant now being dedicated to the provision of complex continuing and long term care.

[18] There is much debate between the parties on how this restructuring impacted on the Plaintiff’s employment.

[19] The Plaintiff’s evidence is that she was hired as a Payroll Officer. Following the restructuring, she was given the responsibility of administrating employee benefit and pension plans.

[20] She states that her duties and responsibilities increased as the number of employees grew steadily over the years. In 2005, she was required to take on some human resources responsibilities.

[21] Her view is that these additional responsibilities were not reflected in her title and her salary.

[22] In 2011 and early 2012, her duties and responsibilities were again increased as the Defendant assumed 32 beds from the Cornwall Community Hospital. This resulted in more personnel. She notes that she was also required to assist with the integration of a human resources module into the payroll program.

[23] The Defendant paints a somewhat different picture.

[24] The suggestion is that the change in structure resulted in a significant reduction in the number of employees.

[25] It notes that prior to the restructuring, the Plaintiff’s duties were limited to payroll-related responsibilities. She was processing payroll for approximately 897 employees with a consolidated and salary wage expense of $27,097,051.

[26] Following the January 2004 changes, the Plaintiff was offered and accepted the position of “Payroll/Personnel Benefits Officer”. While no new job description was created for this position, it included benefits-related duties from the outset. The Plaintiff was now processing for 313 employees with a consolidated and salary wage of approximately $8,000,000.

[27] The Defendant’s evidence is that changes were subsequently made to simplify and streamline the Plaintiff’s payroll work. New payroll software and modules were implemented to make processes more efficient. A single bi-weekly payroll cycle was instituted.

[28] The Plaintiff states that in the summer of 2008, she attempted to address the issue of her job title and compensation with her direct supervisor, Anita Roach and the Defendant’s Executive Director, Bonnie Ruest.

[29] In August 2008, she had assembled a “Comparison Chart” which tracked the progression of her salary relative to other named employees. She presented same to Ms. Ruest. She had access to the other employees’ salary through her position as Payroll Officer.

[30] She was never advised that she should not have used this information to create this “Comparison Chart”. Despite her request, no changes were made to her job title or salary.

[31] The Defendant’s evidence confirms that meetings were held with the Plaintiff in July 2008. One such meeting was on July 31, 2008. Both Ms. Roach and Ms. Ruest were present.

[32] The Plaintiff raised concerns with her job description, her duties and salary. The Plaintiff would have admitted that she was not completing tasks assigned to her. She is described as being aggressive, threatening and antagonistic. She is reported as stating that she did not see “benefits responsibilities” as part of her job but that she could manage the workload if her salary was increased.

[33] It is noted that the Plaintiff had produced a “Comparison Chart” showing the salary progression of non-union employees since January 2004. The Plaintiff’s position was that her salary had not adequately increased when compared to the other employees who were identified in this document.

[34] The Plaintiff was told that she was adequately compensated. She was also advised that there would be a job evaluation process in the upcoming fiscal year.

[35] In 2010, the Defendant retained an independent evaluator to commence a non-union job evaluation process. The Plaintiff is said to have participated in this process. On June 9, 2010, she provided her supervisor Anita Roach with a “Job fact Sheet” detailing her duties and responsibilities. This included “payroll” and “benefits and personnel” responsibilities.

[36] On May 17, 2012, prior to the release of the evaluator’s report, the Plaintiff requested to meet with Ms. Roach to discuss her duties.

[37] The meeting was held on May 24, 2012. The Plaintiff is reported as stating that she was unable to meet her workload and that she would no longer perform the human resources and benefits tasks. She also complained about her salary and referred to employees who used to make less than her were now making more.

[38] Ms. Roach’s evidence is that she responded that she was willing to discuss workload issues but that the human resources and benefits responsibilities had always been part of her job. A follow-up meeting was set for June 4, 2012.

[39] The Plaintiff’s version of the May 24, 2012 meeting is that Ms. Roach merely suggested that she re-organize and re-prioritize her work.

[40] The job evaluation process found that the appropriate salary range for the Plaintiff’s position was $43,563 to $54,425. Her actual salary at that time was $61,191.

[41] The Plaintiff indicates that on June 5, 2012, due to the mounting stress caused by her unmanageable workload, she was placed on a six week medical leave of absence from work by her family doctor.

[42] She began a gradual return to work the week of July 23, 2012 and returned full-time on August 13, 2012.

[43] Part of the Plaintiff’s responsibilities was to pay the provincial Employer Health Tax on behalf of the Defendant. This was to be paid by August 15, 2012. This payment was missed by the Plaintiff and the Defendant was assessed a penalty.

[44] The Plaintiff explains that she inadvertently missed the tax remittance deadline on account of the work backlog as she had not been replaced during her absence.

[45] The Defendant’s evidence is that arrangements were made to cover her duties while she was absent. In the end, the majority of her duties were completed.

[46] In response to the Plaintiff missing the remittance deadline, Ms. Roach indicates having spoken to her on September 5, 2012. She is described as showing no remorse and placing blame on her workload.

[47] She also spoke to her on September 7, 2012 with a view of having the Plaintiff provide a written plan on how to avoid missing future deadlines. Ms. Roach gave the Plaintiff a letter requesting such a plan in writing.

[48] On September 10, 2012, the Plaintiff filed a harassment complaint against Anita Roach. She felt that she had been the victim of harassment due to what she described as a “reprimand” letter as it was the result of a lack of support while she was off on sick leave.

[49] The Defendant appointed an internal investigator described as having workplace harassment training. The Plaintiff describes him as a “colleague, a part-time social worker”.

[50] In the meantime, on September 12, 2012 at the Executive Director’s request, Derek Soares who is identified as the Manager of Information Systems and Decision Support for the Defendant, installed a monitoring program on the Plaintiff’s work computer. This would allow for a review of the use of her time on her computer and ultimately assess her claim of an excessive workload.

[51] In his Affidavit, witness Derek Soares suggests that the Plaintiff was resisting the implementation of a schedule module which would have streamlined payroll and benefits administration.

[52] He states that she had pulled him aside and told him that she had something that she was working on and that she was trying to be acknowledged for more responsibility. She asked him to leave the implementation of the human resources module alone. This conversation is said to have taken place not long before she went on a leave of absence.

[53] The harassment investigation was completed on September 19, 2012. There was no finding of harassment. However, it was recommended that the Plaintiff and Ms. Roach engage in mediation. A mediation was set for October 3, 2012.

[54] The mediation did not proceed.

[55] The Plaintiff’s version is that it was cancelled by Ms. Ruest on September 26, 2012 after she told the assigned mediator that she wanted to have her legal advisor to attend the mediation session with her.

[56] The Defendant’s version is that it was reluctant to allow legal counsel at an internal mediation established for the purpose of building workplace relationships.

[57] Derek Soares’ evidence is that on October 1, 2012, he came to work early in the morning and attended the Plaintiff’s work station and began a cursory review of the information which had been recorded through the monitoring program installed on September 12, 2012. He reported his findings to the Executive Director.

[58] It was revealed that the Plaintiff had sent the personal and confidential payroll information of other employees to external email addresses and had used work time for non-work related purposes.

[59] The Plaintiff was administratively suspended pending further investigation. Furthermore, an external investigator, Daniel Black, was retained to review the matter. The Plaintiff was questioned by this individual. The questions related to her sending the confidential information to external email addresses and non-work-related activities.

[60] In his October 29, 2012 report to the Defendant, the investigator summarizes his findings as follows:

• On September 25, 26 and 27, 2012, the Plaintiff sent emails from her work computer to ncaloren@blg.com together with attachments that were clearly the property of the Defendant and contained confidential information about employees, without proper authority to do so; this is confirmed by the Plaintiff;
• She had no authorization to transmit the information to these emails to either her home email address or to her lawyer;
• She was subject and aware of the work policies governing her employment in regards to confidentiality, release of employee information, acceptable use of computers, internet usage and privacy of confidential files and email;
• Not only did she breach all of the policies but she made a conscious effort to conceal these violations by immediately deleting email transmissions to her home email address and to her lawyer; this is not her normal practice, as by her own admission, she deletes documents once a week, or sometimes less frequently.

[61] In paragraph 51 of her January 29, 2016, Bonnie Ruest states that further review confirmed that the Plaintiff had sent emails containing personal and confidential payroll information to two external email addresses, being her own personal “Hotmail” account and her lawyer’s. There was also evidence to confirm that during work hours, she was looking for information on how to start her own business, searching for other employment and working on a personal document to advance her case against the Defendant.

[62] The September 26, 2012 email to the Plaintiff’s lawyer included six attachments one of which was an updated copy of the “Comparison Chart” she had produced in 2008. It sets out the identities of eight employees, their positions, their hourly rates of pay in April 2004 and 2012.

[63] The Plaintiff does not deny sending the information. Her evidence is that she was distraught by the decision to cancel the mediation. She was concerned about the unfair reprimand and her workload. As a result, she sent her lawyer an email about her situation and enclosed some employment-related information, including an updated version of the “Comparison Chart” she had initially prepared in 2008.

[64] She states that she understood that she could share this information with her lawyer in confidence for the purposes of obtaining advice about her employment situation. She did not consider that this would be a breach of any workplace policies or would put her continued employment in jeopardy.

[65] On November 21, 2012, the Defendant terminated the Plaintiff’s employment. The basis of termination is articulated as follows in her notice:

“…the findings of the investigation of Mr. David Black indicate that you disclosed personal and confidential information to a third party without the knowledge or consent of either the individuals to whom the information pertained or St. Joseph’s. This disclosure was in breach of workplace policies, of privacy legislation and of your obligations under the Code of Professional Conduct of the Canadian Payroll Association. It is also apparent that you were aware that the disclosure was wrong and made a conscious effort to conceal your activities. In addition, we have discovered that you engaged in other non-work-related activities using employer resources and while on employer time, such as exploring alternative job opportunities and looking into starting your own business”.

[66] The Plaintiff states that her reputation in the community has been affected by the Defendant advising other employees that she had breached their privacy. This has made it difficult for her to find another job.

[67] Her evidence is that she has taken steps to mitigate her loss. She commenced searching for other jobs almost immediately after her termination. She applied for a number of jobs but was unsuccessful until June 2014.

[68] Before obtaining her current job on June 9, 2014, she applied to over 13 positions that she could perform given her experience and qualifications.

[69] She searched for positions on line on at least 7 different job search websites.

[70] The Plaintiff is now 47 years old. She is married and lives in Cornwall. She is a Certified Payroll Manager designated by the Canadian Payroll Association since 2008.

[71] As of the date of her termination, the Plaintiff:

• Had worked for the Defendant for almost 11 years;
• Earned an annual base salary of slightly over $62,000 and was entitled to benefits and pension;
• Was 44 years of age.

Position of the Parties

The Plaintiff

[72] The Plaintiff submits that summary judgment is an appropriate procedure to determine whether she was wrongfully dismissed. All of the relevant facts and documents relied on by the Defendant to justify its position are before the Court.

[73] Her view is that whether solicitor-client communications can support a decision to terminate for just cause is primarily a legal issue. It does not require findings of credibility. The issues of credibility raised by the Defendant are not relevant to the question of whether there was a basis for the dismissal.

[74] It is also fitting for the question of what is a reasonable notice. The relevant factors such as age, length of employment, position and salary cannot reasonably be in dispute.

[75] It is also in keeping with the “shift in culture” called for by the Supreme Court of Canada in Hryniak. It would be highly disproportionate for the Court to require that this legal issue be decided by proceeding to trial.

[76] Applying the relevant principles to this case, the Plaintiff argues that her communications with legal counsel are protected by the solicitor-client privilege and cannot be used as evidence of just cause. Nor can her seeking legal advice and/or representation with respect to employment related issues, be considered as having engaged in behavior which is sufficiently serious to strike at the heart of the employment relationship.

[77] Even if she is found to have breached certain workplace policies, same was not sufficiently serious so as to justify summary dismissal. At best, a lesser penalty may have been warranted.

[78] She also suggests that the Defendant violated her solicitor-client privilege by reviewing the emails she sent her lawyer. She had a reasonable expectation of privacy in these communications.

[79] Assuming the Defendant was entitled to look at these communications, they cannot be qualified as communications made to third parties as contemplated by the policies. All documents sent to legal counsel were, by their very nature, required to be held in strict confidence. It would be contrary to the nature of solicitor-client privilege for the Defendant’s policies to prohibit the Plaintiff from seeking legal advice.

[80] In any event, the Plaintiff submits that the removal of confidential records does not automatically allow for summary dismissal.

[81] In regards to the question of non-work related activities using the Defendant’s resources, she argues that such conduct, when looked at in all of the circumstances, does not warrant termination for cause.

[82] It is also submitted that the Defendant did not apply the principles of progressive discipline as mandated by the case law and its own system of progressive discipline. It failed to consider alternatives to dismissal. Termination was not a proportionate response.

[83] Her position is that given the nature of her specialized position, her age of 44, the limited availability of comparable opportunities in Cornwall and her significant mitigation efforts, sixteen (16) months of pay in lieu of notice is appropriate.

[84] In her oral submissions to the Court, counsel for the Plaintiff raised the issue of “procedural fairness” in support of the proposition that the Defendant cannot rely on alleged cause known at the time of termination which was not part of the reasons given to the Plaintiff in the Notice of Termination.

[85] In support of her position, counsel has referred the Court to the following cases:

• Reilly v. Steelcase Canada Ltd. (1979) 26 O.R. (2d) 725
• Robarts v. CNR Co. [1980] O.J. No. 1614
• Hilts v. Euroclean 1982 CarswellOnt 3609
• Makarchuk v. Mid Transportation Services Ltd. [1985] O.J. No. 1016
• Arnt v. Shuswap Okanagan Dairy [1983] B.C.J. 794
• Wawro v. Westfair Foods Ltd. [1995] S.J. No. 159
• Stone v. SDS Kerr Beavers [2006] O.J. No. 2532 (S.C.J.)
• [2007] O.J. No. 2919 (Ont. C.A.)

[86] So that the Court should rule on whether there is a genuine issue requiring a trial on the basis of the two reasons provided by the employer at the time of termination, namely:

• The disclosure of personal and confidential information to a third party;
• Engaging in non-work-related activities using employer resources and while on employer time.

The Defendant

[87] The Defendant’s position is that this is not an appropriate case for summary judgment. Whether the Plaintiff’s conduct amounted to just cause for dismissal and if she has been wrongfully dismissed then what is the appropriate quantum of damages, are genuine issues requiring a trial.

[88] There is insufficient evidence on this Motion for the Court to be able to make the necessary findings of facts and apply the law to the facts.

[89] It is also argued by the Defendant that since this is a Motion for partial summary judgment, there is a real risk of duplicative proceedings and possibly inconsistent findings.

[90] The Defendant’s argument is that the determination of whether just cause exists requires the Court to engage in a contextual analysis. The alleged misconduct must be assessed in the totality of the circumstances. The focus of the analysis is on the nature and severity of the conduct and its impact on the employment relationships. Essential to this analysis is an examination of the misconduct and whether it was a deliberate choice.

[91] It is argued that the evidence is such that it does not allow for a proper analysis of the Plaintiff’s decision to disclose the confidential information.

[92] She fails to provide any explanation and/or justification for disclosing the information to her lawyer.

[93] Nor does she provide any evidence in relation to the other misconduct relied on by the Defendant in terminating her employment. She does not explain any disagreements she may have with Mr. Black’s investigation report.

[94] It is argued that these issues will require testimony from multiple witnesses including the Plaintiff’s lawyer who received the impugned confidential information.

[95] Many of the material facts are in issue. This includes:

• Her lawyer’s involvement;
• The legitimacy of the workload complaints;
• The alleged harassment;
• The “cancelled” mediation;
• Whether the employees referred to in the disclosed private information consented to disclosure;
• Whether the Plaintiff’s reputation was affected so as to make it difficult for her to find employment.

[96] It would be unfair to the Defendant for a determination to be made as to whether just cause existed without an opportunity to explore the circumstances, and challenge the reasonableness of her stated belief that the disclosure of personal and confidential information was somehow permitted.

[97] Much revolves around the Plaintiff’s pleadings and affidavit evidence that she understood she could share this information as a result of having retained her lawyer.

[98] The Defendant’s argument is that whether, when and how this understanding from counsel and whether it was a reasonably held belief that mitigates just cause for termination, are questions that further complicate the issues to be decided by the Court.

[99] The point is also made that since the Plaintiff’s belief is rooted in legal advice given in the context of a solicitor-client relationship, arguments pertaining to access to this evidence will be complicated and require analysis of the law in the area of privilege, conflict of interest and privacy. A summary judgment motion is not the proper forum for such issues.

[100] It is also argued that there has not yet been documentary or oral discoveries allowing for exploration by the Defendant of whether the Plaintiff has taken reasonable steps to mitigate her losses.

[101] Reference is also made to the risk of duplicative proceedings and inconsistent findings since the Plaintiff is seeking a partial summary judgment.

[102] The Plaintiff’s claims for aggravated damages and punitive damages are based on allegations of bad faith conduct, a breach of duty of good faith in dealing with her and in the matter of her dismissal and an allegation of reprisal for seeking legal advice.

[103] The Defendant notes that the facts surrounding her termination for just cause are the same as those she claims warrant an award of aggravated and punitive damages.

[104] The essence of the argument is that there is such a significant overlap between the issues for which summary judgment is being requested and the issues left to be resolved in the usual course, and a corresponding overlap in witnesses and and evidence, that there is a real risk of duplicative proceedings and inconsistent findings.

[105] In the alternative, the Defendant submits that if the Court finds in favour of the Plaintiff in this Motion, an appropriate notice period is in the seven to nine months range.

[106] In regards to its Motion, the Defendant’s position is that BLG should be disqualified as solicitors for the Plaintiff because of the necessity to call Noëlle Caloren, a lawyer of BLG, as a witness.

The Law

Summary Judgment

[107] In deciding the question of the partial summary judgment sought the Plaintiff the Court is guided by the following relevant principles:

• The Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
  • Rule 1.04(1)
• In applying these rules, the Court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
  • Rule 1.04(1.1)
• A Plaintiff may, after the Defendant has delivered a Statement of Defence or served a Notice of Motion, move with supporting Affidavit material or other evidence for summary judgment on all or part of the claim in the Statement of Claim.
  • Rule 20.01(1)
• The Court shall grant summary judgment if,
  • (a) The Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
  • Rule 20.04(1)
• In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers, unless it is in the interest of justice for such powers to be exercised at a trial:
  • Weighing the evidence;
  • Evaluating the credibility of a deponent;
  • Drawing any reasonable inference from the evidence.
  • Rule 20.04(2.1)
• A judge may, for the purposes of exercising any of the powers, order that oral evidence be presented by one or more parties;
  • Rule 20.04(2.2)
• Where the Court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the Court may order a trial of that issue or grant judgment with a reference to determine the amount;
  • Rule 20.04(3)
• Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly.
  • Rule 20.04(4)
• As stated by the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87:
  • There is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system;
    • para. 2
  • Summary judgment rules must be interpreted broadly, favouring proportionately 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 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.
    • para 49
  • A process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute;
    • para. 50
  • The “interest of justice” inquiry goes further, and also considers the consequences of the Motion in the context of the litigation as a whole; for example; if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant Summary Judgment against a single defendant; such partial Summary Judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.
    • para. 60

Discussion

[108] Having considered all of the circumstances and the relevant principles, the Court finds that the issue of whether the Defendant had just cause to terminate the Plaintiff’s employment cannot be summarily decided in the context of a Rule 20 Motion for Summary Judgment.

[109] The Court is of the view that it is unable to reach a fair and just determination on the merits. It is not confident that the evidentiary record reveals the necessary facts allowing for the application of the relevant legal principles so as to resolve the dispute whether or not there was just cause.

[110] There is a genuine issue requiring a trial. The need for a trial cannot be avoided through the Court’s powers to weigh the evidence, evaluate the credibility of deponents and draw any reasonable inference from the evidence.

[111] Furthermore, the Court finds that there is a significant risk of duplicative proceedings or inconsistent findings of fact when one considers the issues raised in this Motion in the context of the litigation as a whole. It is not seen as the most proportionate, timely and cost effective approach.

[112] In arriving at its conclusion, the Court has considered the following:

(i) Reasons for termination

[113] Much of the Plaintiff’s argument is predicated on the notion that the Defendant is bound by the reasons provided to her in writing in the November 21, 2012 Notice of Termination. As such, it is argued that the evidentiary record allows the Court to decide the issue of just cause on the merits. The Plaintiff disclosed the confidential information to her legal counsel. Thus, it cannot amount to just cause by reason of the solicitor-client privilege. The non-work activities were not significant and did not warrant dismissal.

[114] As already noted, counsel for the Plaintiff relies on the concept of “procedural fairness” in support of her position that the Court’s inquiry in this Motion is to be limited to the reasons raised with her by the investigator and which in turn, were the reasons set out in the Notice of Termination.

[115] There is no question that some cases have introduced the concept of “procedural fairness” in assessing summary dismissal. Justice Cumming articulated this view as follows in TSE v. Trow Consulting Engineers Ltd. [1995] O.J. No. 2529 at paragraph 59:

“59. There are divergent views in the law on the extent of an employer’s obligation to an employee in terms of the process to be followed when there is a summary dismissal. An obligation can be asserted to exist on the part of the employer to give the accused employee a chance to state his case…”

[116] The Court’s view is that, in common law, the question of “procedural fairness” is not relevant to the issue of just cause. It may be significant to other issues such as general damages flowing from the unfair manner in which the employee was treated by the employer when summarily dismissal. However, it cannot stand as a shield against just cause in existence prior to termination, whether known or not by the employer.

[117] This conclusion is based on the following judicial pronouncements and reasoning:

• Lake Ontario Portland Cement Co. v. Groner 1961 S.C.R. 553

  “The fact that the appellant did not know of the respondent’s dishonesty conduct at the time he was dismissed, and that it was first pleaded by way of an amendment to its deference at the trial does not, in my opinion, detract from its validity as a ground for dispensing with his services. The law in this regard is accurately summarized in Halsbury’s Laws of England…where it is said:

  It is not necessary that the master, dismissing a servant for good cause, should state the ground for such dismissal; and, provided good ground existed in fact, it is immaterial whether or not it was known to the employer at the time of the dismissal. Justification of dismissal can accordingly be shown by proof of facts ascertained subsequently to the dismissal, or on grounds differing from those alleged at the time.”

• Tsakiris v. Deloitte & Touche LLP [2013] O.J. No. 2905
• Wilson v. Legacy Private Trust [2014] O.J. No. 1582

  “An employer is entitled to rely on wrongdoing discovered after the employee’s employment was terminated so long as the acts occurred prior to termination of the employment… This is because the issue is not whether the reasons given for termination have been proven by the employer but whether the misconduct as a whole was serious enough to warrant termination with cause.”

• Fleming v. Ricoh Canada Inc. [2003] O.J. No. 5557

  “16. What appears at odds with this procedural obligation is that, as previously stated, the grounds for dismissal do not have to be stated at the time of dismissal, but must be established at trial.

  17. This dichotomy may be a reflection of the time held view of the employment relationship as that of master/servant; a relationship in which the master employer has the ultimate say, as a consequence of being the owner or proprietor of the employment opportunity.

  18. It is difficult to see how a procedural breach could vitiate the misconduct of the employee. This is not a relationship of the stature of the individual versus the state in which the rights of the individual are enshrined in The Canadian Charter of Rights and Freedoms . It is still a “private” relationship between the parties in the marketplace…”

• Honda Canada Inc. v. Keays 2008 SCC 39, [2008] 2 S.C.R. 362

  “57. Damages resulting from the manner of dismissal must then be available only if the result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive…

  58. …In Wallace, the Court held employers “to an obligation of good faith and fair dealing in the manner of dismissal” and created the expectation that, in the course of dismissal, employers would be “candid, reasonable, honest and forthright with their employees…”

  59. …Damages attributable to conduct in the manner of dismissal are always to be awarded under the Hadley principle… Examples of conduct in dismissal resulting in compensable damages are attacking the employee’s reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision…”

[118] In the end, the Court finds that the question of just cause is broader than suggested by the Plaintiff. The Defendant relies on more than the sending of confidential information to her lawyer and the non-work-related activities.

[119] To disregard all of the concerns raised by the employer in support of its position would be contrary to the “contextual approach” set out by the Supreme Court of Canada in McKinley v. B.C. Tel 2001 SCC 38, [2001] 2 S.C.R. 161. As stated by Justice Iacobucci at paragraph 57:

“57. …I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship.”

[120] The basis for just cause raised by the Defendant are as follows:

• The disclosure of confidential information to counsel;
• The transmission of confidential information through her personal Hotmail address;
• She had no authorization to transmit this information;
• This disclosure was in breach of workplace policies, privacy legislation and the Code of Professional Conduct of the Canadian Payroll Association;
• She made a conscious effort to conceal her activities by deleting these transmissions;
• Engaging in non-work-related activities using employer resources and while on employer time;
• The placing of a sign on her door making herself unavailable for employees while actually being involved in non-work-related activities;
• She actively opposed the implementation of measures to streamline the performance of her work with a view of being acknowledged for more responsibility; she is said to have asked a co-worker “to leave the implementation of the human resources module alone.”

[121] The question of whether these individually and/or collectively amount to just cause cannot be fairly decided through this Motion.

(ii) Evidentiary Record

[122] The evidentiary record presented to the Court in this Motion is relatively limited. It is found to be such that it does not allow for findings on factual and legal issues which go to the core question of just cause.

[123] The Court notes that there has been no examination for discovery nor discovery of documents in these proceedings.

[124] The deponents of Affidavits in this Motion have been cross-examined by opposite counsel. However, counsel for the Plaintiff objected to any questions that went beyond the context of her Affidavit. Counsel stated the following at page 75 and 76 of the transcript:

“Ms. Caloren: This is a cross-examination on a Motion, so it’s not a discovery where you’re entitled to find out all about the allegations set out in the Statement of Claim. It’s limited to evidence that Wendy Filion has provided for the purposes of the summary judgment motion…We’ve put in what we feel is relevant for the purposes of determining whether or not St. Joseph’s had cause to terminate Ms. Filion on the basis of the stated reason which was the sending of confidential information to counsel…”

[125] The end result is that there is very little, if any, evidence on the following relevant considerations on whether or not there was just cause:

• The transmission of confidential information through her personal Hotmail address:
  • Did anyone other than herself have access to this private email address?
  • Is there any risk that this confidential information was disseminated to others?
  • Was it preserved? If so, how?
  • Is there any other information transmitted to her personal email address?
• Her resisting the implementation of measures to streamline her work:
  • The suggestion is that she had been asked to implement these measures for a number of years;
  • If she was in fact resisting this, what was her purpose?
  • Why did she ask witness Derek Soares to leave this alone?
  • Why did she pull Derek Soares aside and tell him that there was something she was working on and trying to be acknowledged for more responsibility?
  • How would these measures have impacted on her workload?
• The leaving of the note on her office door on September 20, 2012:
  • Exhibit #1 to the Motion is presented as notes prepared by the Plaintiff and suggests that the “payroll crisis” was corrected early on in the morning, why then was the note kept on her door as suggested by witness Bonnie Ruest?

(iii) Solicitor-client privilege

[126] The Plaintiff’s state of mind when she transmitted the confidential information to counsel on September 25, 2012 is a relevant consideration in this litigation. It raises a number of significant issues including whether present counsel should be removed on the basis of conflict. As already noted, the Court will provide its ruling on this cross-motion at a later date.

[127] Closely related to the issue of the need to remove counsel is the question of the waiver or not by the Plaintiff of the solicitor-client privilege.

[128] A review of the cross-examination on her Affidavit shows that the privilege was claimed in refusing to answer questions pertaining to her relationship with counsel at the relevant time and whether counsel had played a role in her decision to disclose the confidential information.

[129] As stated by Justice Turnbull in Bechthold v. Wendell Motor Sales Ltd. [2007] O.J. No. 4886 at paragraph 28:

“28. It is clear that the Courts of this country will protect the solicitor-client privilege unless the moving party can clearly satisfy the onus upon it to convince the Court that there has been a waiver. The Supreme Court has clearly indicated that this will only be the case in certain circumscribed circumstances.”

[130] There is no question that solicitor-client privilege is a fundamental civil and legal right. It will be preserved by the Court unless it is expressly or impliedly waived by the client.

[131] Justice Ground explained the concept of “implied waiver” as follows in Bank Leu AG v. Gaming Lottery Corp. [1999] O.J. No. 3949 at paragraph 5:

“5. Privilege may be waived expressly or impliedly… When determining whether privilege should be deemed to have been waived, the Court must balance the interests of full disclosure for purposes of a fair trial against the preservation of solicitor-client and litigation privilege. Fairness to a party facing a trial has become a guiding principle in Canadian Law. Privilege will be deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action. When a party places its state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.”

[132] As already stated, the Court is of the view that the Plaintiff’s state of mind and belief when she disclosed the confidential information to counsel is relevant to the question the Court is called upon to decide summarily in this Motion, namely whether there was just cause for termination.

[133] If the Plaintiff’s belief was that she could legitimately provide legal counsel with the confidential information then her conduct can be seen as less serious even if in breach of the rules and policies. The employment relationship could be sustained as she did not wilfully and knowingly breach fundamental terms of her employment contract.

[134] However, if her state of mind was such that she knew that she could not disclose this confidential information and yet chose to do so, this elevates the seriousness of her actions and could go to the core of the employment relationship.

[135] The Court is provided with incomplete and somewhat contradictory evidence in regards to the Plaintiff’s state of mind and the basis for same.

[136] The evidence is such that it does not allow for a factual finding.

[137] The Court notes the following evidence:

• In cross-examination on her evidence she stated the following at page 73:

  “I think I knew what everybody knows. You can talk to a lawyer about anything and everything and it’s – because you want advice. I think that’s a normal, I mean, anybody that I’ve talked to has always said the same thing. It’s normal, general consensus to us non-lawyers.”

• In paragraph 32 of her December 7, 2015 Affidavit she states:

  “I understood that I could share this information with my lawyer in confidence for the purposes of obtaining advice about my employment situation and did not consider that this would be a breach of any workplace policies or would put my continued employment in jeopardy.”

• Exhibit “6” to the Plaintiff’s December 7, 2015 Affidavit is a copy of the Social Security Tribunal of Canada’s decision. It states:

  “[12] The Appellant stated that she was dismissed for sending confidential information to a third party… Although she admits to signing a confidentiality agreement, she was informed by her lawyer that he did not count as a third party. She claims to have asked some of her colleagues for permission and they accepted.”

  “[27] The Appellant was told that she could communicate freely with her attorney.”

• In her February 5, 2016 cross-examination she states not having asked permission from her colleagues; the following exchange is noted at page 74 of the transcript:

  “Q. Did you ask the consent of any of those eight people to send this information to your Hotmail account?

  A. No.

  Q. Did you ask the consent of any of these eight other people to send this information to your lawyer?

  A. No.”

• Exhibit “E” to the Plaintiff’s December 7, 2015 Affidavit is a copy of David A. Black’s report dated October 29, 2012; he reports the following at pages 8 and 9:

  “She also explained that she did not think she was breaching anything by sending information to her lawyer. At that point, the investigator asked Wendy Filion if Noelle Caloren had been retained at that point. She said she had not. She also said that she found Noelle Caloren by searching for lawyers on google.”

• Her immediate deletion of the email transmissions to her home email address and to counsel; her normal practice is to delete documents once a week or sometimes less frequently.

[138] The end result is that the question of the Plaintiff’s state of mind will require a fuller evidentiary record. It will also likely require a finding on whether or not she expressly and/or impliedly waived her solicitor-client privilege. This may become academic if the Court grants the Defendant’s cross-motion seeking the removal of counsel.

(iv) Proportionality, timeliness and cost effectiveness

[139] Considering the issues raised in this Motion in the context of the litigation as a whole, the Court’s conclusions are that:

• There is a risk of duplicative proceedings:
  • The Plaintiff is seeking a partial summary judgment;
  • The amount claimed in this Motion is less than half the total amount claimed in this litigation;
  • The remaining issues (aggravated damages, punitive damages, special damages) will require the calling of the same witnesses;
  • The remaining issues revolve around the same disputed facts.
• There is a risk of inconsistent findings:
  • The issues in this litigation are fact driven and revolve around reliability and credibility of witnesses;
  • It is difficult for the Court to assess reliability and credibility of witnesses on the basis of Affidavit evidence and limited cross-examination on these by opposite counsel;
  • There is a significant risk that the Court could come to inconsistent findings based on viva voce evidence in Court;
  • The remaining issues revolve around the same facts and will require the Court to make factual findings.
• A finding on the issue of just cause in the context of this Motion will not favour timeliness and cost efficiency;
  • A trial will be required;
  • The same witnesses will be called;
  • The same factual issues will be argued.

Conclusion

[140] Therefore, the Motion for Summary Judgment brought by the Plaintiff is dismissed.

[141] The parties are asked to resolve the issue of costs for this Motion. If they are unable to do so, they may file brief written submissions, not to exceed three (3) pages, on or before December 9, 2016.

Justice Ronald M. Laliberte Jr.

Released: November 8, 2016

2016 ONSC 1008

COURT FILE NO.: 13-1207

DATE: 2016/11/08

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WENDY FILION Plaintiff – and – THE RELIGIOUS HOSPITALLERS OF ST. JOSEPH OF CORNWALL, ONTARIO Defendant

REASONS FOR JUDGMENT Justice Ronald M. Laliberte Jr.

Released: November 8, 2016