ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF DERRICK WILLIAMS (Deceased) by its ESTATE ADMINISTRATOR BEVERLEY WILLIAMS
Plaintiff
– and –
VOGEL OF CANADA LTD.
Defendant
James Jagtoo and Frances Jagtoo, for the Plaintiff
Christian R. Riveros, for the Defendant
HEARD: March 24, 25, 26, 27 2015 and May 4, 2015
REASONS FOR JUDGMENT
firestone j.
INTRODuCTION
1This action, grounded in wrongful dismissal, was originally commenced by the plaintiff Derrick Williams (“Derrick”) on November 13, 2012 against his former employer Vogel of Canada Ltd. (“Vogel”), a small family-owned furniture manufacturer of medium to high-end upholstered furniture. On November 16, 2014 Derrick passed away.
2On December 18, 2014, by way of requisition, an order to continue was obtained directing that the proceeding continue and that the title of proceedings be changed to “The Estate of Derrick Williams (Deceased) by its Estate Administrator Beverley Williams (Plaintiff) and Vogel of Canada Ltd. (Defendant).”
3The following relief was originally sought in the Statement of Claim (“claim”):
(a) a declaration that Derrick’s employment was wrongfully terminated on October 3, 2012;
(b) wrongful dismissal damages equivalent to thirty (30) months of pay in lieu of reasonable notice;
(c) in addition or in the alternative, termination and severance pay pursuant to the Employment Standards Act, 2000;
(d) damages for breach of the Ontario Human Rights Code for discrimination on the basis of disability in the amount of $50,000.00;
(e) in addition, or in the alternative to (d), damages for mental distress in the amount of $50,000.00.
4On October 22, 2014 the claim was amended pursuant to the court’s order dated October 16, 2014. Pursuant to that order the prayer for relief was amended to include the following:
(a) a declaration that his employment was wrongfully terminated on October 2, 2012;
(a1) Alternatively, a declaration that he was constructively dismissed from his employment, either in May, 2012, when the employer refused to provide him with work, or, in July 2012, when the Employer terminated his life insurance benefit retroactive to May, 2012 while plaintiff was on sick benefits, or, September 17, 2012, when the employer assigned the plaintiff to the unskilled task of cutting foam, loading and unloading trucks, and nailing boards;
(e1) damages for breach of the duty of good faith and fair dealing in the manner of termination in the amount of $50,000.00;
(e2) aggravated damages in the amount of $50,000.00;
(e3) in addition and/or alternatively, punitive damages in the amount of $50,000.00
5Various amendments were made to the body of the claim under the existing headings of “sick leave”, “return to work on September 17, 2012”; “termination October 3, 2012 - wrongful dismissal”; “injury and failure to accommodate - breach of Ontario Human Rights Code”; “mental distress”; “breach of the duty of good faith and fair dealing in the manner of termination” and “aggravated and punitive damages”.
6The central factual issue in this action is whether Williams was terminated by Vogel (actually or constructively) as asserted by the plaintiff or in the alternative whether, as Vogel asserts, Williams resigned or quit his employment.
7Williams commenced employment with Vogel, a furniture manufacturer, in July 1980 when he was 28 years old. He continued to work there for 32 years as an upholsterer until 2012 when he was 60 years of age. There was no written employment contract. During the last five years of his employment he would travel, with Vogel’s express or implied approval, to Jamaica from January to March or April.
8The plaintiff submits that the evidence supports the following findings:
- Vogel wrongfully terminated Williams’ employment on one of two dates, namely:
(a) In May 2012 consequent upon Vogel’s legal position that he was not an employee when he was on sick leave; and
(b) On October 2, 2012, when told there was no work for him and was directed to go home, confirmed by Vogel’s letter dated October 3, 2012.
- The plaintiff takes the alternative position that Williams was constructively dismissed on either of three dates as follows:
(a) May 2012, when upon returning to work, he was told there was no work for him.
(b) July 2012, when his life insurance and accidental death and dismemberment benefits were unilaterally terminated by Vogel, retroactive to May 2012, without Williams’ knowledge or consent while he was on sick leave.
(c) September 17, 2012, when upon returning to work, he was told there was no compulsory work for him to do and instead he was given menial and unskilled tasks to do, including cutting foam, loading/offloading trucks, and nailing boards with a heavy nail gun.
9Vogel’s position regarding the claims for wrongful dismissal is that in August 2012 when his benefits were about to run out, Williams asked to return to Vogel for two weeks, which, he told Vogel, was so that he could qualify for more benefits. They further submit that Williams, in advance of returning to Vogel, asked for a letter stating he was too disabled to work to the standard that Vogel required. Williams was not therefore wrongfully dismissed at any point in time.
10Williams, following his return from Jamaica at the end of April 2012, called Vogel to advise that he was back and upon hearing that Vogel was in the midst of a move and that he should report back in a couple of weeks, chose instead to collect what turned out to be (but was not known to Vogel at that time) employment insurance sick benefits.
11Despite seeking work from Vogel, which implies that he was able to work, in his application for benefits, Williams stated to Service Canada that he was too injured to work and had been since before leaving to Jamaica in January, 2012.Vogel submits that Williams did not consider what transpired in May 2012 to be a constructive dismissal.
12Vogel argues that in the event that Williams was wrongfully dismissed or constructively dismissed, he failed to mitigate his damages as evidenced by his repeated failure to accept Vogel’s invitations to return to work.
PRELIMINARY EVIDENTIARY ISSUES
13As a result of Williams’ death during the course of this litigation and prior to trial, it was directed that the admissibility of potential hearsay evidence given by various witnesses at trial as well as the admissibility of evidence given by Williams at his examination for discovery (“discovery”) on April 18, 2013 would be determined following trial, after the parties had an opportunity to provide written submissions.
14As a preliminary matter I am required to determine the admissibility of certain types of evidence in this wrongful dismissal and constructive dismissal action where the plaintiff Williams passed away after being questioned at his examination for discovery on the wrongful dismissal claim, but prior to being examined on his constructive dismissal claim. Specifically, the central issue is: what aspects of Williams’ evidence given on his discovery is admissible and what, if any, aspects of the evidence given by various witnesses regarding what the plaintiff did or said are admissible given that Williams’ own evidence was not available at trial.
15Hearsay has been defined as follows:
Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.1
16The Supreme Court in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, gave a comprehensive overview of the court’s approach to hearsay evidence:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an existing exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
17As noted above, hearsay evidence is admissible if reliability and necessity can be established.2 The courts have consistently found that the death of a person makes the necessity requirement easy to meet.3 The reliability aspect is more contentious.
18To begin, Justice Iacobucci (as he then was) in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, emphasized the importance of distinguishing between threshold and ultimate reliability. Only threshold reliability is relevant to admissibility. He went on to write:
Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra; Smith, supra) or because there was safeguards in place that such a lie could be discovered (see Hawkins, supra; U. (F.J.), supra; B. (K.G.), supra).
19Justice Iacobucci also stated that when determining threshold reliability, trial judges should not consider factors like the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, nor the presence of corroborating or conflicting evidence.
20Echoing Iacobucci J.’s words, Charron J. in R. v. Khelawon, 2006 SCC 57, wrote that the reliability requirement is usually met in two different ways. First, one can look at the circumstances in which the evidence came about to demonstrate that there is no real concern about whether the statement is true or not. Second, one can fulfill the reliability requirement by showing that the fact the statement is presented in hearsay form is not a concern because its truth and accuracy can be sufficiently tested.
21With regard to the first way of meeting the reliability requirement, Charron J. quoted Wigmore at para. 62:
There are many situations in which it can be easily seen that such a required test [i.e. cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a skeptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured.
22Circumstantial guarantees or indicia of reliability can include, for instance: the disinterest of the declarant; the declaration being made before dispute or litigation; and the peculiar means of knowledge of the declarant.4 In R v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at para. 30, the Supreme Court again turned to Wigmore to identify certain broad categories where sufficient reliability might be found for admissibility:
a. Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan or falsification be formed;
b. Where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection or the fear of punishment, would probably counteract its force;
c. Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected.
23The court in Simpson v. Simpson, [1997] B.C.J. No. 2275, at para. 84, glossed that paragraph this way: “do the facts surrounding the utterances offer sufficient guarantees of trustworthiness to compensate for the dangers of the declarant not being available for cross-examination?”
24In terms of the second means of meeting the reliability requirement, one can show that the fact that the statement is presented in hearsay form is not a concern because its truth and accuracy can be sufficiently tested. Such methods of testing include:
(i) the statement was made under oath or solemn affirmation after a warning as to the significance of the oath or affirmation;
(ii) that the statement was taped in its entirety; and
(iii) that the opposing party has a full opportunity to cross-examine the witness with respect to the statement.5
25While the ability to test the evidence is important, the Supreme Court in R. v. Smith was clear at para. 31 that “…as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination.”
26Finally, it must be mentioned that in adopting the principled approach over the historical approach (which focused on certain categories of exceptions), the courts have intended to insert flexibility into the analysis. As stated by McLachlin J. (as she then was) in R v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at para. 18:
The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.
27Thus, courts have increasingly preferred an analysis of admissibility under the principled approach. However, it will be a rare case where evidence that fits an exception will be found inadmissible under the principled approach.
28With these broad principles in mind, I will turn to the specific kinds of evidence at issue in this case.
Use of Williams Discovery Evidence at Trial
29All or part of the plaintiff’s discovery evidence is admissible under Rule 31.11(6) of the Rules of Civil Procedure, which states:
Unavailability of Deponent
(6) Where a person examined for discovery,
(a) has died;
(b) is unable to testify because of infirmity or illness;
(c) for any other sufficient reason cannot be compelled to attend at the trial; or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court R.R.O. 1990, Reg. 194, r. 31.11 (6). [Emphasis added]
(7) In deciding whether to grant leave under subrule (6), the trial judge shall consider,
(a) the extent to which the person was cross-examined on the examination for discovery;
(b) the importance of the evidence in the proceeding;
(c) the general principle that evidence should be presented orally in court; and
(d) any other relevant factor R.R.O. 1990, Reg. 194, r. 31.11 (7).
30As the Rule itself states, the general rules for admissibility are still applied to this discovery evidence. That is, the parts of the evidence that may constitute hearsay are still inadmissible unless they either fall under a recognized exception, or the twin requirements of necessity and reliability are met. The court has discretion to admit or refuse this evidence: Aujla v. Hayes, 1997 CanLII 4459 (ONCA).
31The traditional exception of “declaration against interest” would apply to anything the plaintiff said in his examination for discovery. This rule is stated thusly by Martland J. in R. v. Demeter, [1978] 1 S.C.R. 144, at para. 57:
At common law an oral or written declaration against pecuniary or proprietary interest by a deceased declarant has been long held to be admissible to prove the fact declared.
32Short of this exception, there is no other exception that is likely to apply to the plaintiff’s evidence. This would leave the evidence subject the principled approach. Given that the evidence was given under oath and in a context similar to cross-examination, it should be treated as fairly reliable.
33The situation is somewhat less straightforward because the constructive dismissal claim by way of amendment was added post-discovery in October, 2014, which, Vogel submits, effectively deprived it of the ability to properly “cross-examine” on aspects of the plaintiff’s evidence that might be relevant to that claim.
34In analyzing this issue there are two things to consider. First is the Supreme Court’s admonition in R. v. Smith that “…as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination.”
35Second, there are some cases that deal with reading in affidavit evidence given by parties who have passed away before the litigation commenced, or admitting reports prepared by experts who died before litigation commences.
36Those types of evidence are analogous to the evidence regarding constructive dismissal in that, though they are sworn under oath, their signatories are not cross-examined.6 In deciding whether to admit a medical report whose author had passed away, Epstein J. (as she then was) in Tulshi v. Ioannou, [1994] O.J. No. 1472 (Gen. Div.), identified the concern with admitting such evidence as “prejudice to the opposing party in not having an opportunity to cross-examine.” At para 17 she went on to say, however, that:
Counter-balancing this prejudice is the need of the trial judge to have all possible relevant evidence before him or her in order to determine the issues raised in the action. In my view, this requirement, particularly where the evidence in question is of importance and cannot be obtained in any other way, takes priority over the prejudice suffered by a party in being deprived of its right to cross-examine, especially since this prejudice can at least be addressed by the trier of fact through a consideration of the weight to be attached to the evidence in question. The Court should, however, attempt to go further where possible to assist in reducing the prejudice suffered by the opposing party through not being able to cross examine.
37In Cormack Animal Clinic Ltd. v. Potter (2009), 2009 CanLII 713 (ON SC), 306 D.L.R. (4th) 548, D.L. Corbett J. decided to admit affidavit evidence that had not been subject to cross-examination. He did so after applying the principled approach. He found that:
Dr. Cormack’s affidavits are evidence given under oath in these proceedings. That is a significant badge of reliability. This does not mean, of course, that the evidence ought to be believed or accepted… I am satisfied I can weigh this evidence in the overall context of this case.
Statements by Witnesses Regarding what Williams Said or Did
38Evidence presented by either side could fall into some of the known exceptions to the hearsay rule. For instance:
(a) Admissions
39The traditional exception to the hearsay rule for out-of-court admissions by a party was affirmed by McLachlin J. (as she then was) in R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207:
An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs is prejudicial effect.
40Any evidence which would tend to implicate the plaintiff in making a statement against his own interest is therefore admissible.
(b) State of Mind
41Justice Iacobucci described the “state of mind” or “present intentions” exception to the hearsay rule in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 169, writing that this exception:
… permits the admission into evidence of statements of intent or of other mental states for the truth of their contents and also, in the case of statements of intention in particular, to support an inference that the declarant followed through on the intended course of action, provided it is reasonable on the evidence for the trier of fact to infer that the declarant did so.
42Justice Iacobucci went on to note in the same paragraph that some inferences may not be permissibly drawn from hearsay evidence of the out-of-court declarant’s intentions. For instance,
The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred.
43In the case before me, considering that there is some dispute about what the plaintiff intended or what his state of mind was with regard to his ongoing employment, evidence that would tend to explain or describe such intention or state of mind would be admissible under this exception.
(c) Principled Approach
44As for hearsay evidence that does not fall under a particular exception, again the principles of necessity and reliability apply.
45In Omcon Investments Ltd. v. 1100828 Ontario Ltd., [2010] O.J. No. 5870 (S.C.), M. Edwards J. had to determine whether to admit evidence about statements that the deceased defendant had allegedly made. He decided to accept the testimony of the deceased’s sons as to what was said at a meeting that took place at their father’s office.
46After reviewing the case law, M. Edwards J. determined that “looking at all of the evidence, I am satisfied there is sufficient evidence that allows me to test the trustworthiness of the evidence given by [the sons] Ron Jr. and David” (at para. 17). He found that there was sufficient evidence from other witnesses that solidified the trustworthiness of the sons’ testimony.
47In Dodge v. Kaneff Homes Inc., [2001] O.J. No. 1141, the parties brought an unusual pre-trial motion to determine the admissibility of evidence characterized by both parties as hearsay. This arose out of a situation in which the plaintiffs, pursuing an action on behalf of the estate of Ray Dodge, alleged that Ray struck an oral agreement with the defendant before dying suddenly.
48The plaintiffs sought to admit notes made by Ray, conversations he had with family members and friends in the months preceding his death, and an allegation of the former spouse of the defendant about a conversation she had with the defendant. In this case, the court looked, at para. 19, at the following “areas of inquiry relevant to the reliability criterion”:
(a) the surrounding circumstances under which the statement was made;
(b) the timing of the statement;
(c) other evidence or factors which might raise apprehensions about the reliability of the statement;
(d) the testimonial competence of the declarant, including his or her capacity to observe, recollect and communicate;
(e) the declarant's perception, memory and credibility;
(f) whether the declarant had no known reason or motive to lie, or the absence of any reason to expect fabrication in the statement;
(g) whether the evidence in question arises in a context that supports its credibility; and
(h) the declarant's conduct.
49The court noted that indicia of reliability must be established on a balance of probabilities only (at para. 21). As a result, courts have held that there is some flexibility with respect to the admissibility of hearsay evidence in civil proceedings (at para. 23). It was also relevant to Pitt J.’s decision in Dodge that “in each instance one of the parties to the discussions will be available for cross-examination” (at para. 25).
Ultimate Reliability
50The distinction the courts have drawn between threshold admissibility criteria and the ultimate determination of the weight to be given to admissible evidence is important. A determination that hearsay evidence is admissible does not mean it is necessarily true. Evidence that may be more or less reliable must be weighed accordingly by the trier of fact.
51As Corbett. J. wrote in Cormac Animal Clinic Ltd. v. Potter, supra at para. 10, “if it is admitted into evidence at all, it remains for the trier of fact to assess that evidence and determine what weight, if any, should be given to it.”
Ruling: Use of The Plaintiff’s Examination for Discovery Evidence at Trial
52In applying these considerations to the factual matrix of this case, I find that the interests of justice require that leave be granted to admit all of those contested portions of Williams’ discovery evidence at trial as part of his case in order to reach a just determination of the issues in this action.
53Vogel argues that the plaintiff substantially amended the claim in October, 2014 as well as in the subsequent reply by adding more than seven pages of detailed allegations which were never, as a result of Williams’ death, tested at discovery.
54Vogel submits that following discoveries the quantum sought in the claim nearly doubled. In addition, Vogel submits, a claim was added for constructive dismissal either in May 2012, when Vogel allegedly refused to provide work to Williams, or July 2012 when Vogel terminated his life insurance benefits, or alternatively September 17, 2012 when Williams was required to cut foam as part of his job duties. In addition, Vogel submits, Williams is now claiming damages for breach of the duty of good faith and fair dealing in the manner of his termination as well as aggravated and punitive damages.
55Vogel further argues that this action, when originally commenced, was grounded in a claim for Williams’ wrongful dismissal on October 30, 2012. Williams claimed in addition or in the alternative: termination and severance pay under the Employment Standards Act, damages for breach of the Ontario Human Rights Code for discrimination on the basis of disability, as well as damages for mental distress.
56As a result, Vogel takes the position that because of the way the claim was framed, the extent of the cross examination at Williams’ discovery regarding the occurrences which took place in May 2012 was limited. The plaintiff’s case at the time discoveries were held related to events that transpired in August to October, 2012 and not, Vogel submits, May 2012.
57Vogel says it did not have an opportunity to cross-examine Williams “solely to credibility” regarding what transpired in April-May 2012. Vogel submits that credibility is fundamental to a fair determination in this proceeding. It is important to note however that pursuant to Rule 31.06(1)(b) discovery questions related solely to the credibility of the witness need not be answered.
58Vogel submits that because it did not have an opportunity to cross-examine Williams at discovery with respect to the issues arising from the pleading amendments, that discovery evidence should not be admitted “at all” as it relates to the allegations contained in the amended claim.
59Vogel confirms that the examination of Williams did touch on the factual narrative contained in the amended claim but it states that the veracity of that examination would have been structured differently had it known about the amendments prior to discovery. It is also important to note that the original claim refers to various events which took place as early as 2009.
60Vogel submits that if the read-ins are found to be admissible, they should be used only as evidence regarding issues raised in the original, but not amended, claim subject to further construction regarding those portions that are hearsay.
61Vogel, in written argument, submits that if leave were granted to accept the read-ins under rule 31.11 (6) and (7), such evidence should be treated in the same manner as testimony of other witnesses regarding the inherent shortcomings of that evidence, namely the absence of cross examination directed to its credibility and the lack of opportunity to assess Williams’ demeanor in giving his evidence. In other words, that its shortcomings be considered in determining the weight, if any, the evidence should be given.
62Vogel concedes that it remains the court’s prerogative to determine in the context of assessing all of the evidence adduced at trial, the weight which is to be given to the discovery evidence and that they are subject to further construction regarding those portions which are presumptively hearsay.
63As the Ontario Court of Appeal states in Aujla v. Hayes, 1997 CanLII 4459 (ONCA) in part at para. 20: “[T]he discretion to grant leave to read into evidence all or part of the transcript of an examination for discovery is reposed, by the Rules, in the trial judge.”
64These read-ins are still subject to the requirement that they are admissible based on an exception to the hearsay rule or that they are admissible on the basis of the principled approach as set forth above.
65This evidence is to be admitted if it is both necessary and reliable. This evidence is necessary given that it is the only direct evidence from Williams regarding his version of events. The circumstances under which the statements were made, namely under oath, leads to the conclusion that the reliability threshold has been met.
66Some of the defence witness evidence is uncorroborated by the other witnesses or by the documentary evidence in this trial. Accordingly, Williams’ evidence is important and necessary, in conjunction with all of the other evidence, in order to justly and fairly determine the factual issues in this case.
67Williams’ direct evidence is clearly both necessary and reliable. It is necessary so that Williams’ version of the transactions and occurrences regarding the factual issues in dispute can be put before the court. The evidence is reliable because it was given under oath. I am satisfied that the evidence given at discovery has sufficient trustworthiness to allow it into evidence so that its ultimate truth can be assessed.
68I also note that the hearsay statements made by Williams relate to statements or conversations made by witnesses who had an opportunity to give evidence and were cross-examined at this trial. These include Michael Iacobucci (“Michael”), the general manager of the defendant Vogel of Canada Ltd. (“Vogel”), Bruno Monardo (“Bruno”), a foreman at Vogel, and Candice Vogel (“Candice”) the president and one of two shareholders of Vogel.
69The interests of justice require, based on the unique factual matrix of this case, that the court exercise its discretion and enter into evidence the read-ins from Williams’ examination for discovery to be considered and weighed along with all of the other evidence at trial having regard that such discovery evidence “was untested by cross-examination as to credibility”: Aujla, para. 20.
70After considering the unique factual matrix of this case and the applicable legal principles, I am satisfied that the plaintiff’s death following the commencement of this litigation and the resultant inability to testify at trial does not, in the interests of justice, justify the exclusion of that evidence in its entirety.
Ruling: Statements by Witnesses Regarding what Williams Said or Did
71The admissibility determination of the hearsay statements made by the witnesses who testified at trial about what Williams said or did should also be based on the principled approach to the admission of hearsay evidence. This requires a determination of whether such evidence is both necessary and reliable. Based on the application of this principle, the evidence of the plaintiff’s witnesses at trial, which included Elias Dhimis (“Elias”) and the defence witnesses Michael Iacobucci (“Michael”), Samuel Sampath (“Samuel”), Patrick Mastandrea (“Patrick”), Bruno Monardo (“Bruno”), and Candice Vogel (“Candice”) is admitted.
72Reference is made by the parties to the corroboration requirement contained in section 13 of the Evidence Act, R.S.O. 1990, c. E.23 (“Evidence Act”). It provides as follows:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
73This section does not deal with the admissibility requirement but rather with the pre-condition to obtaining a “verdict, judgment or decision”, namely that an opposite or interested person’s evidence shall be corroborated by some other material evidence. In other words, this statutory corroboration requirement applies to admitted evidence and not to the determination of whether such evidence should be admitted.
74The statutory phrase “some other material evidence” mandates that the corroborating evidence derive from a person or source extraneous to the very testimony requiring corroboration: Sands Estate v. Sonnwald (1986), 22 E.T.R. 282 at 293, [1986] O.J. 478 (Ont. H.C.J.); Elgin v. Stubbs (1928), 1928 CanLII 441 (ON CA), 62 O.L.R. 128, [1928] O.J. No.17 (Ont. C.A.).
75As stated in S.L. Phipson, The Law of Evidence, 6th ed. (London: Sweet & Maxwell, 1921), at 487 and M.N. Howard P. Crane & D.A. Hochberg, Phipson on Evidence, 16th ed. (London: Sweet & Maxwell, 2005), at 14-01.
“Facts which tend to render more probable the truth of the witness’s testimony of any material point are admissible in corroboration thereof, although otherwise irrelevant to the issue, and although happening before the date of the fact to be corroborated”.
76The corroboration requirement may be met by either direct or circumstantial evidence or a combination of both which renders it probable that the evidence needing such corroboration is true: Paquette v. Chubb (1988), 1988 CanLII 4621 (ON CA), 65 O.R. (2d) 321, at 334-35, [1988] O.J. No.1355 (Ont. C.A.); Sands Estate, supra, at 119. Inferences or probabilities tending to support the truth may suffice: Harvie v. Gibbons (1980), 1980 ABCA 38, 12 Alta. L.R. (2d) 72 at 87, [1980] A.J. No. 951 (Alta. C.A.).
77A higher or more onerous standard does not apply when circumstantial evidence, which is to be assessed cumulatively, is offered as corroborative evidence: Sands Estate, supra; Paquette, supra at 330-333. In an action by the estate of the deceased person, the claimant’s evidence may be corroborated by a statement against interest made by the deceased person admitted as an exception under the hearsay rule: Rigby v. Nova Scotia Trust Co, 1938 CanLII 277 (NS CA), [1938] 2 D.L.R. 583, 13 M.P.R. 70 (N.S.C.A.); Evans v. Trusts and Guarantee Co, 1920 CanLII 601 (AB KB), [1920] 3 W.W.R. 103, [1920] A.J. No. 39 (Alta. S.C.), aff’d., 1920 CanLII 657 (AB CA), [1921] 1 W.W.R. 117 (Alta C.A.).
78In R v. Silverstone, 1934 CanLII 152 (ON CA), [1934] O.R. 94, at 98, [1934] O.J. No. 223 (Ont. C.A.), the court states in part that “… [I]n civil cases, it is sufficient if the evidence of the party to be corroborated is strengthened by evidence which appreciably helps the judicial mind to believe his evidence in one or more of the facts or statements deposed to….”
79Watt J., as he then was, in Sands Estate, supra, sets forth the principles applicable to proceedings governed by section 13 of The Evidence Act as follows:
that the corroboration required by section 13 must be evidence, independent of the evidence of an opposite or interested party, which shows or tends to show that such opposite or interested party is speaking the truth upon a material issue in the proceedings;
that the corroboration required by section 13 may be found in direct evidence, circumstantial evidence, or in a combination of both types of evidence;
that where circumstantial evidence is relied upon as potentially corroborative of the evidence of an opposite or interested party, it must be independent evidence which renders it probable that the evidence of such party upon a material issue is true;
that several pieces of circumstantial evidence, taken together, may potentially corroborate the evidence of an opposite or interested party, notwithstanding that each item or piece of evidence viewed in isolation may not be so capable, provided that cumulatively the pieces or items satisfy the test of corroboration, that is to say, independent evidence which renders it probable that the evidence of an opposite or interested party upon a material issue is true;
that it is the function of the trial judge to determine in each case which item or items of evidence bear corroborative potential, to so instruct the trier of fact and, thereafter, [the duty] of the trier of fact to determine whether such evidence is, in fact, corroborative;
that in determining whether evidence bears corroborative potential such evidence must be viewed in the context of the entirety of the evidence adduced save and except without reference to any explanation which may be offered on behalf of the representatives of the deceased person for the acceptance or rejection of such explanation is ultimately a matter for the trier of fact not something which impairs or destroys the corroborative potential of the evidence;
that circumstantial evidence ought only to be submitted as potential corroboration in the event that it is of such probative capacity that, if accepted by the trier of fact as proven, and any evidence given by the deceased’s representatives explaining such facts rejected, the trier of fact acting reasonably would be warranted in concluding it was more consistent with the truth than with the falsity of the evidence of the opposite or interested party on a material issue;
that circumstantial evidence, whether consisting of a single item or of several items to be considered cumulatively, may only serve as corroboration where the trier fact is satisfied such evidence is more consistent with the truth of the evidence of the opposite or interested party upon a material issue than with its falsity, and, if in the view of the trier fact, the circumstantial evidence is equally consistent with the truth as with the falsity of the evidence of the opposite or interested party upon such issue, the circumstantial evidence is not corroborative; and
that in the absence of corroboration of the evidence of the opposite or interested party, judgment shall not be given for such party unless the representatives of the deceased person otherwise fail to satisfy any onus which may be cast upon them.
80I am satisfied that the record as a whole provides sufficient other material evidence, both direct or circumstantial, to meet the corroboration requirement in section 13 of the Evidence Act regarding the viva voce evidence given by the witnesses who testified at trial. Based on the above referenced principles I admit their evidence.
ANALYSIS
81The evidentiary record confirms that Williams commenced employment with Vogel as an upholsterer in July 1980 when he was 28 years old. He worked in that capacity as a fulltime employee until 2012 when he was sixty years old. During the course of his employment with Vogel there was no written employment contract or employment file kept by Vogel. Vogel and Williams agreed that during approximately the last 5 years of his employment Williams would not work between January to March or April of each year so he could travel to Jamaica to spend time with his family.
82Prior to May of 2012 there were no major or substantial issues or concerns with Williams’ work performance. Michael, during his cross-examination, agreed that Williams was a “good employee, that he was punctual, dependable, reliable and rarely late” and that “he was a productive employee and that his quality of work was acceptable for the most part”.
83Williams made $39,636.80 in 2008, $24,012.61 in 2009, $20,868.81 in 2010 and $28,008.86 in 2011. Other Vogel employees who had similar pay reductions had their salaries restored to some degree. Williams’ pay reductions were never restored.
84On May 25, 2012 Vogel issued a Record of Employment (ROE). Under block 16, “Reason for issuing this roe,” it lists “D-illness or injury”. A further ROE was issued October 12, 2012.Under block 16 it lists “D-illness or injury”. The May 25, 2012 ROE was issued by Vogel so that Williams could go on sick leave. If it was issued because of Vogel’s understanding that Williams had quit or was retiring so that he could look after his father (as alleged), then it is reasonable to assume Vogel would have inserted either code “G”-retirement or “E”-quit. It did not. This is consistent with Williams’ understanding that he would be returning and was still employed by Vogel. I do not accept Bruno’s evidence to the contrary, when considered in light of all of the other evidence in the record.
85Williams’ evidence is that in May 2012, upon returning from Jamaica, he attended at Vogel to perform his employment duties and was told that Vogel was in the midst of a move. He was advised by Michael to check back in a couple of weeks. Williams then attended at his family doctor, Dr. Hack, and was told his shoulder was torn. Williams then used the ROE which was completed May 25, 2012 so he could go on sick leave, and to apply for and receive sick benefits from Service Canada. The plaintiff’s family doctor, Dr. Hack, in his consultation note dated August 22, 2013 stated that Williams could at that time return to work, light duties only.
86In the summer of 2012, following Vogel’s move to their new location, Williams attended there. At that time he observed Elias doing the upholstery work he (Williams) used to do. At that time he advised Michael that he would return to work on September 17, 2012, which he did. The plaintiff’s family doctor, Dr. Hack, recommended a return to work on September 17, 2012. Williams was then directed by Bruno to cut foam and afterwards to pull foam from the truck and nail boards using a heavy nail gun. He worked at Vogel from September 17, 2012 to October 2, 2012.
87On October 2, 2012, a meeting took place at Michael’s request between him and Williams. At that time he was advised that there was no further work for him to do and was directed to go home. Williams asked to work for the remainder of the day in order to avoid embarrassment. This request was denied.
88Williams was subsequently given a letter dated October 3, 2012 from Vogel signed by Michael. That letter stated:
To Whom It May Concern … Mr. Williams has been employed by our company as an upholsterer since July of 1980. Over the past few years, he has developed problems with his tendons in his arm, which have affected his ability to upholster. As such, he was off work from January to mid-September of this year….Recently Mr. Williams returned to work, however he was unable to produce the quality of workmanship expected and thus we cannot maintain his employment at Vogel of Canada Ltd. any longer … Should you require additional information please contact the writer.
89It was the accepted and agreed arrangement between the parties that Williams would not work between January to April so that he could go to Jamaica to visit with his family. This is not a situation where Williams unilaterally decided simply not to attend at his employment without justification or authority, or where it can be concluded that he was resigning or quitting his employment because of injury.
90When analyzing the evidentiary record as a whole, I find that Williams at no time resigned, retired or quit his employment with Vogel. There is no written communication to this effect between the parties. Further, there is no written communication that Williams was a probationary employee at any time in 2012. To the contrary, on the record before me, I find that Williams had every intention of continuing on with them, when able, in the same manner as he had up to May, 2012. At no point prior to that was Williams told by his employer that any medical problems he may have had were affecting his ability as an upholsterer or that, upon his return to work from Jamaica, it had been determined that he was no longer producing, or was capable of producing, the quality workmanship expected of him and, for that reason, his employment would be terminated.
91Vogel’s position that Williams asked to return to work on September 17, 2012 for two weeks on a fixed-term contract so that he could re-qualify for benefits does not make sense when considering the complete factual matrix of this case. There was no letter sent to Williams or other internal memos or notes confirming the understanding or agreement between the parties that Williams return to work was for a temporary, fixed-time period only and that he was no longer employed there. Michael confirmed that upon Williams’ initial return from Jamaica, to work for Vogel, he was not considered a new employee but rather was an existing employee.
92Prior to Vogel’s letter of October 3, 2014 Williams had every reason to believe he was still employed by Vogel and that he was off only temporarily. The statement in Vogel’s letter dated October 3, 2012 that he was no longer employed there was not provided at Williams’ request. Further there was no evidence that Williams was unable to produce the quality of workmanship expected of him. I find that this letter was in fact provided and drafted in the way it was, as the plaintiff submits, because Vogel had made an internal decision unilaterally, and without any discussion with Williams, to terminate his employment and force him out, most likely because they wanted to give his job to Elias.
93In July, 2012 Williams’ life insurance and accidental death and dismemberment benefits were terminated retroactive to May 2012. This was done by Candice based on communication received from Michael that Williams had quit his job. Williams was not consulted and had no input into this decision.
94On October 12, 2012, two ROEs were completed both with code “D”, connoting illness or injury. In one, under the expected date of recall, it indicates “N”. In the other, it states “Not Returning”. For the purposes of box 16, “Reason for issuing the roe”, “N” is defined as “Leave of Absence”.
95As a result I therefore find that Williams was wrongfully terminated by Vogel on October 2, 2012 when he met with Michael and was told there was no further work for him to do and was told to go home. This was followed by Vogel’s letter of October 3, 2014. I base my determination on the following factual and evidentiary findings:
Bruno’s evidence was that Williams was let go because of a lack of upholstery work and not because of his physical inability to do the work.
Michael’s evidence was that upon being requested by Williams to complete the ROE he assumed that Williams was retiring. The ROE dated May 25, 2012 completed by Candice however lists the reason for its issuance as “D-illness or injury” and not “E-Quit” or “G-retirement”. If Williams had resigned or quit, then it is reasonable to assume that Candice, who was a sophisticated employer and familiar with the ROE form, would have inserted that as the reason for its issuance. I do not accept the evidence of Candice that she put “D” instead of “E” because it was how she used the computer program. There was no evidence that Williams had any intention of retiring in May, 2012. Williams was unsophisticated in these matters. With respect, I found Michael to be unresponsive and evasive in the manner in which he gave his evidence; and further that his testimony was self-serving. I therefore attach little weight to it.
If Williams on his own accord decided to retire or quit after 32 years of employment, then it is reasonable to assume that Vogel would have requested something in writing to that effect. There is no documentary evidence from either Vogel or Williams that would support that conclusion.
Bruno, Vogel’s foreman, testified that there was no upholstery work available for Williams at the material time given that Elias, who I note was younger and, on balance, more productive than Williams, worked 80 hours for the period September 17, 2012 to October 2, 2012. Elias was doing the upholstery work during that time period for 70% of his work day. This is the work that was previously carried out by Williams. The inference I draw is that there was no upholstery work for Williams because Elias was now doing it. Bruno testified that it was his understanding that Williams was not working at Vogel as of October 2, 2012 because Vogel did not have much work and for that reason he was let go.
It is unreasonable to assume that Williams would request, as suggested by Michael and Candice, a draft termination letter that would hurt, not help, his current or future employment situation, and which negated Vogel’s obligation to pay severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, s. 64.
There were no contemporaneous notes made by Michael of his meeting with Williams.
There is no basis to suggest that Williams’ return to work for the period September 17, 2012 to October 2, 2012 was a probationary period or that Williams intended to return to work on a temporary basis for this period only so he could obtain a reference letter. There is no basis, as the plaintiff submits, to unilaterally convert his full-time status to a probationary status. The plaintiff was not a temporary employee or on probationary status at the time Vogel provided Williams with their termination letter dated October 3, 2012.
Patrick testified that he used to be an upholsterer with Vogel. He began in 1997 and left last year. He was at Vogel between September to October, 2012. The last time he saw Williams he (Williams) was cutting foam. He assumed that Williams was there temporarily and was retiring. He thought his conversation with Williams took place in 2014 rather than 2012.
Michael testified that he assumed and was under the impression Williams was resigning his job and that he was planning to slow down and retire. There was no evidence that Williams ever said this to Michael.
96With respect, based on the complete factual matrix and evidentiary record, I do not accept that Williams would return to work on September 17, 2012, after having exhausted his Services Canada sick benefits, only to then request two weeks later that he be terminated from his full-time position which he held for 32 years so he could again attempt to collect sick benefits based on a letter prepared by Vogel. This is especially so given the fact that there was no evidence that a return to work for this two week period would qualify him for further benefits.
97I find that Williams was wrongfully dismissed without cause on October 2, 2012 which was confirmed in Vogel’s letter dated October 3, 2012. Williams did not quit or resign. Their letter followed the meeting of October 2, 2012 when Williams was told there was no work for him and was told to go home. In fact there was work but it was given to someone else. Williams had worked for Vogel as an upholsterer for 32 years. I find that the impetus for Vogel’s letter of October 3, 2012 was a combination of the downturn in their business along with an opportunity to replace Williams with a younger, more productive worker.
98Regarding Williams’ request for a reference letter, it is important to note that when Williams attended Vogel’s new premises, prior to his September 17, 2012 return to work, at which time he asked for a reference letter, this request was made not because Williams intended to return to work temporarily for two weeks, but rather because of his concerns that it was Vogel’s plan to replace him with another worker, namely Elias. This was a logical inference for Williams to draw given that when he attended at Vogel he saw Elias cutting foam, which is exactly the job he did. A request for a reference letter in such circumstances was not unreasonable and is certainly not evidence that Williams had quit or resigned.
DAMAGES
(a) Reasonable Notice
99The plaintiff submits that the appropriate notice period, having regard to the particular facts of this case is 30 months. Vogel submits that the appropriate notice period is 12 to 18 months.
100The relevant factors to be applied in determining reasonable notice are set forth in the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986 at para. 22:
What constitutes reasonable notice will vary with the circumstances of any particular case. The most frequently cited enumeration of factors relevant to the assessment of reasonable notice is from the judgment of McRuer C.J.H.C.in Bardal, supra, at p.145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
101In Wallace v. United Grain Growers Ltd. (c.o.b Public Press), 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, the Supreme Court confirmed “[t]hat Bardal, supra, does not state, nor has it been interpreted to imply, that the factors enumerated were exhausted … Canadian courts have added several additional factors to the Bardal list. The application of these factors to the assessment of a dismissed employee’s notice period will depend upon the particular circumstances of the case.” Also see Minott v. O’Shanter Development Company Ltd. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (Ont. C.A.).
102In Lowndes v. Summit Ford Sales Limited, 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 (Ont. C.A.), the Court at para 11 states:
Although it is true that reasonable notice of employment termination must be determined on a case specific basis and there is no absolute upper limit or ‘cap’ on what constitutes reasonable notice, generally only exceptional cases will support a base notice period in excess of 24 months: see Baranowski v. Binks Manufacturing Co., [2000] O.J. No. 49 (S.C.J.) at para. 277 and Rienzo v. Washington Mills Electro Minerals Corp., [2005] O.J. No. 5126 (C.A.).
103After considering the evidence in this case and the applicable legal principles I find that Williams is entitled to 23 months’ notice. I base this on the following:
(a) Williams was employed by Vogel 32 years (1980 to 2012) as an upholsterer. At the time of his dismissal, without any severance payment, he was 60 years old.
(b) As a result of Williams’ age, it was more difficult for him to find alternate suitable employment, especially in light of the fact that he was nearing the end of his working life and the fact that he was not given a reference letter.
(c) There is no basis to reduce the notice period because of Williams’ alleged failure to mitigate and to take reasonable steps to obtain alternate employment. He was cleared to return to work, light duties, by his family doctor on August 22, 2013. Subsequently he did seek alternate employment based on his age, experience and ability. Williams’ failure to accept Vogel’s November 8, 2012 offer of re-employment was not unreasonable given what had transpired and the acrimony between the parties and the embarrassment it would likely have caused him.
(b) Life Insurance Accidental Death & Dismemberment Benefit Claim
104There is insufficient information in the record to support the claimed entitlement to and calculation of life insurance proceeds or accidental death or dismemberment coverage. In any event, given Williams’ date of death and my finding that the notice period does not extend beyond November 16, 2014, Williams’ estate would not have qualified for the death benefit during the notice period. See generally Egan v. Alcatel Canada Inc., 2006 CanLII 108 (ON CA), [2006] O.J. No. 34 (Ont. C.A.) para. 26.
(c) Breach of Ontario Human Rights Code
105On the factual record before me I find that Vogel is in breach of section 5(1) of the Ontario Human Rights Code (“Code”) given that their decision to terminate was based in whole or in part on Williams’ age and disability. While Williams was disabled he was replaced with another, younger employee who, in effect, took over his job notwithstanding that Williams was qualified to do it: Wilson v. Solis Mexican Foods Inc., [2013] ONSC 5799 para. 56.
106Based on the factual matrix of this case, under section 46.1(1)1 of the Code I award to Williams’ Estate the sum of $5,000.00.
(d) Breach of Duty of Good Faith and Fair Dealing Aggravated Damages
107In Honda Canada Inc. v. Keays, 2008 SCC 39, the Supreme Court of Canada confirmed in part at para 59 that:
“[t]here is no reason to retain the distinction between “true aggravated damages” resulting from a separate cause of action and moral damages resulting from conduct in the manner of termination. Damages attributable to conduct in the manner of dismissal are always to be awarded under the Hadley principle … Thus if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages…”
108I agree with Vogel that, on the evidentiary record before me, their conduct does not warrant a finding that there has been a breach of a duty of good faith and fair dealing sufficient to make an award of aggravated damages. There is insufficient evidence regarding actual harm or mental distress.
(e) Punitive Damages
109In Honda, supra, at para 68, the Supreme Court confirmed the principles set forth in Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085 at pp. 1104-1105; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18 at para. 69, that punitive damages should receive the most careful consideration and that the discretion to award them should be most cautiously exercised. Further, Courts should only resort to punitive damages in exceptional cases.
110In this case I am not satisfied that the conduct or misbehaviour at issue was so harsh, vindictive, reprehensible, malicious and extreme in its nature to justify such an award given the other damage awards made.
(f) Limitation period
111The parties agree that a party’s rights are crystallized at the date of service of the notice of motion: Philippine v. Portugal, [2010] O.J. No 750 (QL), 261 OAC 290, 2010 ONSC 956 (S.C.); Sweda Farms Ltd. et al. v. Ontario Egg Producers et al. 2011 ONSC 6146. The motion record to amend the claim was served within the limitation period. The motion record was properly served May 23, 2012 and re-served on June 9, 2014 following the new hearing date.
112Based on the provisions of the Limitations Act, 2002, including the discoverability provisions, the claims advanced in the amended claim are clearly not statute barred.
DISPOSITION
113Vogel is to pay damages to the Estate of Derrick Williams in accordance with paragraphs 103 and 106 of these reasons less any applicable credit for other employment income received during the notice period payment ordered. Any applicable interest on the notice award is to be paid.
114If the parties are unable to agree on the issue of costs, the plaintiff is to provide its cost submissions of no more than five pages in length along with their cost outline by February 15, 2016. The defendant is to provide their cost submissions on the same basis by February 25, 2016. The plaintiff’s reply, if any, is to be provided by February 29, 2016.
115If there are any issues regarding the form of judgment, I may be spoken to. I wish to thank counsel for their oral and written submissions which were of great assistance to the court.
Firestone J.
Released: January 26, 2016
CITATION: Williams v. Vogel of Canada, 2015 ONSC 342
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DERRICK WILLIAMS
Plaintiff
– and –
VOGEL OF CANADA LTD.
Defendant
REASONS FOR JUDGMENT
Firestone J.
Released: January 26, 2016
Footnotes
- John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at 173.
- R v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915.
- See, for example, Malik Estate v. State Petroleum Corp. (2007), 2007 BCSC 934, 74 B.C.L.R. (4th) 330; Omcon Investments Ltd. v. 1100828 Ontario Ltd., [2010] O.J. No. 5870; Dodge v. Kaneff Homes Inc., 2001 CarswellOnt 1099 (S.C.); Simpson v. Simpson, 1997 CarswellBC 2169 (S.C.); R. v. Smith, supra note 2.
- Sugden v. Lord St. Leonards (1876), 1 P.D. 154.
- R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.
- In fact, they are probably even less “reliable” than the evidence sought to be admitted in this case in that the plaintiff in this case was examined for discovery on all matters, even if the opposing counsel did not realize, because of the way the pleadings were framed at the time, that additional emphasis should be placed on the issue of constructive dismissal.