COURT FILE NO.: CV-14-0280 DATE: 2016-08-31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dennis Rego Plaintiff

• and -

Northern Air Solutions Inc. Defendant

COUNSEL: Bradley A. Smith, for the Plaintiff Dawood A. Ahmad, for the Defendant

HEARD: April 4 and July 7, 2016, at Thunder Bay, Ontario

BEFORE: Mr. Justice W.D. Newton

Reasons For Judgment

[1] In Rego v. Northern Air Solutions Inc., 2015 ONSC 7098, following a summary judgment motion, I found that the employer had failed to establish, on a balance of probabilities, cause for termination due to an alleged misrepresentation of the employee’s credentials at the time of hiring. I directed a “minitrial” on whether the circumstances surrounding the employee’s failure to complete training constituted cause.

[2] On the “minitrial”, the evidence consisted of the affidavits previously filed and the cross-examination of the defendant’s chief pilot and the plaintiff on their affidavits.

The Termination

[3] The plaintiff was required to complete training for flight operations in the winter. When this training was first offered, in September 2014, the plaintiff was on holidays. He was given written material to submit. He claims that he did submit this material. The defendant claims that he did not. Apart from the text message reproduced below, the affidavits filed were in dispute on the facts leading to termination on February 27, 2014.

[4] By email that day at 7:50 PM, the plaintiff received a letter from the defendant's chief pilot advising him that his employment was terminated immediately "due to your lack of cooperation to participate in required company training."

[5] Earlier that day, the plaintiff and Heather Vandertas, president of the defendant, had the following text message exchange:

Hi Lindsay will be up there next Wednesday Thursday to catch up all of your training winter ops etc Thanks Feb 27, 2014 13:52:07

Reply: So I’m loosing two days off? Feb 27, 2014 14:02:41

Well No…It is part of your work…bcuz u were holidaying when everybody else did the training and it’s part of your job!! You have had lots of days off. :) Feb 27, 2014 14:04:30

Reply: Holidays was agreed upon by you an I. There was nothing said about loosing two days off to make up for it. Every day off I have is what’s agreed upon between NAS and I Feb 27, 2014 14:04:51

Reply: Am I getting overtime for those two days? Feb 27, 2014 14:05:04

Reply: Or two days off in lieu on my week on? Feb 27, 2014 14:07:44

Nothing…everyone else did it while you were away you have a job that’s part of it :) Feb 27, 2014 14:10:38

Reply: Well if I’m not compensated for giving up two days off that I’m contracted to have then don’t expect me to be at the training. My days off are my days off. You can schedule the training when I’m on. As you told me on the phone “we don’t mess with your days off” Lindsay Cadenhead

[6] Subsequent to this exchange, the chief pilot, Lindsay Cadenhead, called the plaintiff. The chief pilot emphasized the importance of completing the training to the plaintiff. In testimony, he conceded that the plaintiff was sufficiently proficient in deicing procedures but simply needed the “paperwork” in order. He described the required training as “rote”. The training consisted of watching a video followed by a 25 multiple-choice test and review with the chief pilot. In re-examination, Mr. Cadenhead confirmed that this was the first time that he had told the plaintiff that his “job was on the line” should the training not be completed. He said that the plaintiff responded that he would complete the training. Mr. Cadenhead could not recall whether the plaintiff said that he was in agreement with doing the training on his own time. Mr. Cadenhead admitted that he told the plaintiff that he would tell senior management that the plaintiff would be attending training and that he would see if he could “call the dogs off”. Mr. Cadenhead testified that when he spoke to senior management, the president felt that, as result of the plaintiff’s “pattern of behavior” it was “not reasonable to have him continue as an employee of the company”. He was directed by the president to prepare the termination letter. He confirmed that it was that the decision of the president to terminate Mr. Rego.

Mr. Rego

[7] Mr. Rego’s testimony about the telephone call with Mr. Cadenhead on February 27, 2014, was not substantially different than Cadenhead’s testimony. He confirmed that he was told that the company was looking at termination if he did not do the training and he then replied that he would do the training. He testified that Mr. Cadenhead then said that he would “see if he can call the dogs off”.

Positions of the Parties

[8] The employer argues that, as the plaintiff had not completed the required winter operations training, he was, therefore, not qualified as a pilot. This, the employer claims, is just cause for dismissal.

[9] The employee argues that the employer had condoned the lack of completion of the winter operations training by having him continue to fly without it and, once the employer warned that his employment was in jeopardy, the employee agreed to complete the training. The employee argues, therefore, that the employer has failed to discharge its onus of proving, on a balance of probabilities, just cause for termination.

The Law

[10] Although dealing with employee dishonesty, the Court of Appeal’s decision in Dowling v. Ontario (Ministry of Community Safety and Correctional Services), 2014 ONCA 538 provides helpful guidance:

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

50 Application of the standard consists of:

• 1. determining the nature and extent of the misconduct;
• 2. considering the surrounding circumstances; and,
• 3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

51 The first step is largely self-explanatory but it bears noting that an employer is entitled to rely on after discovered wrongdoing, so long as the later discovered acts occurred pre-termination. See Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553.

52 The second step, in my view, is intended to be a consideration of the employee within the employment relationship. Thus, the particular circumstances of both the employee and the employer must be considered. In relation to the employee, one would consider factors such as age, employment history, seniority, role and responsibilities. In relation to the employer, one would consider such things as the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee's position within the organization, and the degree of trust reposed in the employee.

53 The third step is an assessment of whether the misconduct is reconcilable with sustaining the employment relationship. This requires a consideration of the proved dishonest acts, within the employment context, to determine whether the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship.

Analysis

[11] I am satisfied on the evidence that the employee did, during the conversation with the chief pilot, receive a warning that his job was in jeopardy and, once the warning was given that Mr. Rego then agreed to complete the training. The fact that the chief pilot was going to “attempt to call the dogs off” confirms this. I also find, on the evidence, that this was the first such warning and conclude that the employer condoned the failure to complete winter operations by continuing to dispatch Mr. Rego on flights without the training being completed.

[12] In considering the nature and extent of misconduct – the failure to immediately comply with the request to complete training – and all the surrounding circumstances, including the telephone call with the chief pilot and the prior acceptance of the lack of training, I conclude that dismissal was not warranted. Accordingly, I find that the employer has failed to discharge its onus of proving, on a balance of probabilities, just cause for termination.

Damages

[13] The contract provided that the plaintiff would receive a salary of $80,000 per year with an advance on that salary of $11,250. The contract was for a minimum duration of one year. The contract commenced on August 12, 2013, and was terminated on February 27, 2014. It is not clear, on the material filed, how the advance was factored into the plaintiff’s calculations. No evidence was led and no argument made with respect with respect to mitigation. Therefore, the plaintiff is to have judgment for the amount owing under the contract less the advance and the payments received. Although the plaintiff deposes that he received 4% vacation pay on each paycheck the contract is silent with respect to whether vacation pay would be paid. I am not satisfied, on a balance of probabilities, that the annual salary is $83,200 as proposed by the plaintiff. If the parties cannot agree as to the net amount of damages under the contract then they may arrange a teleconference before me through the trial coordinator.

[14] The plaintiff also claims overtime pay on the basis that that he is entitled to overtime pay under the Canada Labour Code. The defendant disputes entitlement to overtime claiming that it was agreed that the hours of work would be averaged given the variation the potential hours actually worked in a week. The president of the defendant deposed that the plaintiff was aware that standard practice could have a duty day lasting up to 14 hours. I conclude that it is reasonable, given the nature of the employment – flying medevac flights - that the hours of work would be averaged. I note that the plaintiff received his normal salary notwithstanding that his duties were not required on a number of days. Therefore, the claim for overtime pay is dismissed.

[15] The plaintiff also claims aggravated and punitive damages for bad faith termination but no evidence was led to establish entitlement to this relief. Therefore, this claim is also dismissed.

[16] If the parties are unable to agree to costs within 30 days, then the parties shall submit brief written submissions on costs within 45 days from the release of these reasons. Costs submissions are to be limited to three pages plus costs outline. If no cost submissions are received within 45 days then costs will be deemed settled.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: August 31, 2016