2016 ONSC 7653

COURT FILE NO.: CV-15-1056

DATE: 20161207

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RONALD DAWSON

Plaintiff

– and –

COLT FOOD SERVICES LIMITED

Defendant

Kumail Karimjee, for the Plaintiff

Amanda Chapman, for the Defendant

HEARD: August 3, 2016

Corrected decision: The text of the original judgment was corrected on December 7, 2016 and the description of the correction is appended

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] Ronald Dawson (“Mr. Dawson”) brings a motion for summary judgment in his wrongful dismissal and human rights claim, pursuant to Rule 20 of the Rules of Civil Procedure. Mr. Dawson alleges that his employment was wrongfully terminated with the Defendant, Colt Food Services Limited (“CFS”) on July 3, 2015. CFS disputes that Mr. Dawson’s employment was terminated at all. CFS alleges that Mr. Dawson resigned and/or abandoned his employment on July 7, 2015.

[2] There is conflicting evidence regarding the discussions about what occurred at the meeting of July 3, 2015 between Mr. Dawson and Mr. Campbell and the events that led to Mr. Dawson not returning to his employment with CFS after that meeting. Mr. Dawson submits that this is an appropriate case for summary judgment. CFS disagrees.

OVERVIEW

[3] Mr. Dawson commenced employment with CFS on August 1, 2002. He is 56 years old.

[4] CFS is owned by Howard Campbell (“Mr. Campbell”). CFS carries on business as a food service provider and is associated with the Barrie Colts, Ontario Hockey League Team and home facility. CFS carries on operations in Barrie, Ontario.

[5] There was no written employment contract between Mr. Dawson and CFS in force in 2015.

[6] Mr. Dawson was the food and beverage manager at CFS. He was responsible for organizing and overseeing events at the Barrie Molson Center.

[7] As an employee of CFS, Mr. Dawson earned annual compensation of approximately $50,000. CFS provided Mr. Dawson with extended health and dental coverage, life and long-term disability insurance. CFS also provided Mr. Dawson with a vehicle and gas allowance of $380 per month.

[8] By July 7, 2015 Mr. Dawson had been employed by CFS for almost 13 years.

[9] On Friday, July 3, 2015, Mr. Dawson and Mr. Campbell met to discuss ongoing concerns regarding Mr. Dawson’s job performance and in particular, ongoing concerns regarding ordering supplies, labour costs, hitting targets and cleanliness of the food facilities.

[10] While the parties agree that this meeting occurred on Friday, July 3, 2015, they do not agree as to the discussions that were had by the parties at that meeting. Mr. Campbell alleges that they had a good discussion at the meeting and Mr. Dawson advised that he had plans to retire after the upcoming hockey season, stating that he was tired, and he wanted to retire in the near future.

[11] Mr. Dawson has a different recollection of the meeting. He recalls that during the meeting Mr. Campbell stated “Ron, we need to part ways” and told Mr. Dawson that CFS “needed a change”, or words to that effect. Mr. Dawson understood that Mr. Campbell was terminating Mr. Dawson’s employment. Mr. Dawson alleges that he informed Mr. Campbell of an important catering event taking place on July 8, 2015. Mr. Campbell allegedly replied that it was “not a problem” and that they would “find someone else to do it”, or words to that effect.

[12] Mr. Campbell denies ever saying to Mr. Dawson “Ron, we need to part ways”. Mr. Campbell alleges that he told Mr. Dawson “we are having the same meeting over and over again”. He expressed to Mr. Dawson that he thought Mr. Dawson did not appear to be happy at work and that his attendance at work was gradually becoming worse and he was less engaged. Mr. Campbell alleges that it was Mr. Dawson who advised during the meeting that he was not happy, tired of doing the same job and that he and his wife had been talking about retiring the following year.

[13] Mr. Campbell alleges that it was Mr. Dawson who expressed his concern that Mr. Dawson could no longer manage the duties of his position and that he really thought the position required an executive chef or someone with higher qualifications than himself. Mr. Campbell alleges that he and Mr. Dawson agreed that they would move forward, that Mr. Dawson would stay in his position and he would be involved in training a new food and beverage manager until sometime in July 2016. They shook hands and that was the end of the conversation. Mr. Dawson felt that each had been open and honest with one another about future plans and it appeared as though they were going to work together over the next year for this transition.

[14] At the end of the meeting, Mr. Campbell alleges that Mr. Dawson also confirmed that everything was set and ready to go for the filming of Goon 2 the following week and that Mr. Campbell would see Mr. Dawson then.

[15] Mr. Dawson has a different recall of the meeting. He alleges that Mr. Campbell raised the question of Mr. Dawson’s retirement plans. While Mr. Dawson explained that he and his wife had discussed long-term retirement goals, Mr. Dawson did not plan to retire any time in the near future.

[16] As Mr. Dawson understood that he would no longer be working at CFS, he reminded Mr. Campbell about the large upcoming event for the following week.

[17] Mr. Dawson advises that at no time during the July 3 meeting did he say or do anything that suggested that he intended to quit or retire from CFS. He never said “I quit” or words to that effect. He never provided notice that he would be resigning or retiring. He did not receive a written termination letter during the July 3 meeting.

[18] On Monday, July 6, 2015, Mr. Dawson did not attend work. Rather, he advised Cheryl Whitman, the accounting manager at CFS, that he was ill and would not be into work that day, “Got the flu, won’t be in today”. Ms. Whitman sent a reply text to Mr. Dawson, “Okay, feel better!”

[19] Later on Monday, July 6, 2015, Mr. Dawson sent an email to Mr. Campbell requesting terms and conditions of Mr. Dawson’s termination with (sic) from the Barrie Colts. Mr. Dawson was struggling with the idea of continuing to work for CFS without knowing specifics. He requested specifics about continuing to work until a replacement could be found and he asked that these issues be provided in writing.

[20] On the same day within less than an hour, Mr. Campbell responded to Mr. Dawson’s email, confessing that he was confused and did not know what Mr. Dawson meant by termination. Mr. Campbell confirmed a discussion about employment and some employment issues, resulting in Mr. Dawson telling Mr. Campbell that Mr. Dawson wanted to work one more year and then would look at retirement.

[21] Mr. Dawson replied to Mr. Campbell late afternoon on Monday, July 6, 2015, by another email, attributing to Mr. Campbell the alleged comment that Mr. Campbell made about parting ways. Mr. Dawson characterized the conversation as “casual banter” and in no way was Mr. Dawson giving Mr. Campbell notice about leaving CFS.

[22] On Tuesday, July 7, 2015, Mr. Dawson sent a text message to Ms. Whitman as follows: “I won’t be in the rest of the week. Going to the doctor. Will give Howie a note.” Ms. Whitman replied by text, “What is going on, Ron?” Mr. Dawson replied by text to Ms. Whitman, “I am done. Long, ugly story”.

[23] This last text by Mr. Dawson was followed up with a telephone conversation between him and Ms. Whitman. Ms. Whitman said he was very upset and that he had no idea what was going on.

[24] On July 14, 2015, Mr. Dawson obtained a medical note from Dr. Geoffrey Bond, “The above noted patient was seen in my office today for medical reasons. He is currently off work for medical reasons. Will be re-assessed in the near future.”

[25] On July 15, 2015, Mr. Dawson sent a text to Ms. Whitman, advising that he would be forwarding the doctor’s note to CFS on Thursday. Ms. Whitman replied, thanking Mr. Dawson and hoping he was doing well.

[26] The doctor’s note was provided to CFS on July 16, 2015, more than one week after Mr. Dawson’s July 7, 2015 text messages, and 14 days after he alleges Mr. Campbell had terminated his employment.

[27] Mr. Dawson did not advise Mr. Campbell or Ms. Whitman that he was:

(a) intending to return to work after July 7, 2015;

(b) suffering from a medical condition other than the flu; and/or,

(c) suffering from stress or anxiety relating to the workplace.

[28] On July 24, 2015, CFS issued a record of employment which can be found at Tab 11 of the Motion Record. In box 18, ‘Comments’, the entry is “job abandonment”. At box 14, ‘Expected Date of Recall’, the entry is “not returning”.

[29] Mr. Dawson never returned to work at CFS. Rather, on July 8, 9 and 14, he applied for a total of 11 jobs.

ISSUE

[30] The critical issue to be determined is whether or not there is a genuine issue requiring a trial.

[31] There are other issues raised by this motion as follows:

(a) whether the evidence provided by way of Motion Record meets the requirements necessary for a summary judgment motion in accordance with Rule 20.01. In other words, is the summary judgment process an appropriate method for adjudicating Mr. Dawson’s claims;

(b) whether Mr. Dawson’s employment had been terminated by CFS without cause or whether Mr. Dawson resigned from and/or abandoned his position with CFS;

(c) if Mr. Dawson’s employment was wrongfully terminated, what are his damages; and,

(d) did CFS violate Mr. Dawson’s rights under Section 5 of the Ontario Human Rights Code, and if so, what are Mr. Dawson’s damages.

POSITION OF THE PARTIES

The Position of Mr. Dawson

[32] It is submitted that this matter can be appropriately resolved by way of summary judgment motion. It is alleged that Mr. Dawson was wrongfully terminated from his employment. His meeting with Mr. Campbell on July 3 left him confused, anxious and upset. He was unclear whether he had been provided with working notice from CFS. He saw his family doctor who recommended a medical leave. This information was provided to CFS. He later received a Record of Employment from CFS.

[33] Mr. Dawson submits that he never resigned or abandoned his position. He had no intention of leaving his employment and that his employment was terminated on July 3. In the alternative, his employment was terminated as of the date of the Record of Employment (“ROE”) on July 24, 2015. He was not paid any wages while on medical leave. Neither was Mr. Dawson paid any termination or severance pay under the Employment Standards Act or any amount complying with CFS’s obligations under common law.

[34] Mr. Dawson further claims that by failing to request additional medical information from him, and by stating that he abandoned his position, CFS breached the Ontario Human Rights Code.

[35] Mr. Dawson claims damages in the amount of $58,050 arising out of his wrongful dismissal claim and general damages in the amount of $35,000 regarding his Human Rights claim, for a total of $93,050 plus interest and costs.

The Position of CFS

[36] It is CFS’s position that this is not an appropriate case for summary judgment. It asserts that there are clear conflicts in the evidence regarding the central issue in this case: whether Mr. Dawson was dismissed or whether Mr. Dawson resigned from/or abandoned his employment with CFS.

[37] It is submitted that credibility will be a key factor in resolving these issues. A full appreciation of the evidence will require a trial. There are also live issues in respect of Mr. Dawson’s damages based on a claim for wrongful dismissal and whether he had properly mitigated his damages. It is alleged that Mr. Dawson was actively looking for work on July 8, 9 and 14, 2015, all while he was allegedly off work from CFS on a sick leave.

[38] Regarding his claim for damages arising out of wrongful dismissal and his Human Rights claim, there is an issue as to whether or not there was any disability whatsoever, contrary to the claims of Mr. Dawson, arising from his alleged wrongful termination of employment on July 3, 2015. It is submitted that Mr. Dawson had pre-existing health issues long before July 3, 2015. There is a serious issue as to whether CFS breached any of its obligations or duties pursuant to the provisions of the Ontario Human Rights Code.

[39] CFS submits that the summary judgment motion be dismissed.

ANALYSIS

The Law

[40] The court shall grant summary judgment, where it is satisfied that there is no genuine issue requiring a trial with respect to a claim. Only where the judge is able to reach a fair and just determination on the merits on a motion for summary judgment is there no genuine issue requiring a trial. The summary judgment process must:

(a) allow the judge to make the necessary findings of fact;

(b) allow the judge to apply the law to the facts; and,

(c) be a proportionate, more expeditious and less expensive means to achieve a just result.[^1]

[41] The Moving Party bears the onus of proving there is no genuine issue requiring a trial. An evidentiary burden to support that a genuine issue exists only rests with the Responding Party if the Moving Party demonstrates a prima facie right to summary judgment.

[42] In determining whether there is a genuine issue, the court is required to consider the evidence submitted by the parties.[^2]

[43] On a summary judgment motion, the evidence and procedure must be such that the judge is confident he or she can find the necessary facts and apply the relevant legal principles so as to fairly resolve the dispute.[^3]

[44] If the motion judge does not have the confidence in making the necessary findings of fact, then summary judgment should not be seen as a proportionate means to resolve the dispute.

[45] The Rules of Civil Procedure provide for discretionary powers that may be exercised by a motions judge in concluding whether there is a genuine issue. The powers are discretionary, presumptively available and may be exercised unless it is in the interest of justice for those powers to be exercised only at a trial.[^4]

[46] The motions judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.[^5]

[47] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers. If he or she has the evidence required to fairly and justly adjudicate the dispute and the process is a timely, affordable and proportionate procedure, there will be no genuine issue requiring a trial.[^6]

[48] If there appears to be a genuine issue requiring a trial, the motions judge should then determine if the need for a trial can be avoided by using the discretionary powers. The judge may, at his or her discretion, use those powers provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^7]

[49] The inquiry into the interest of justice is comparative and may require the motions judge to assess the relative efficiencies of proceeding by way of summary judgment as opposed to trial. This may involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.[^8]

[50] The motions judge may order that oral evidence be presented by one or more parties for the purposes of exercising his or her discretionary powers. The power to order oral evidence should be employed when it allows the judge to reach a fair and just adjudication of the merits and it is proportionate to the cause of action. It should be used to promote the fair and just resolution of the dispute in light of the principles of proportionality, timeliness and affordability.[^9]

[51] The party seeking to lead oral evidence should demonstrate why such evidence would assist the motions judge in weighing the evidence, assessing credibility, or drawing inferences. The party should provide a “will say” statement or other description of the proposed evidence to assist the judge in setting the scope of the oral evidence.[^10]

[52] The process of calling oral evidence is not a full trial on the merits, but is designed to determine if there is a genuine issue requiring a trial.[^11]

Evidence

[53] The evidentiary record consists of the following:

• Mr. Dawson’s Motion Record with his affidavit sworn April 4, 2016, together with exhibits

• Responding Record of CFS, which includes; the affidavit of Howard Campbell, sworn June 21, 2016, together with exhibits; affidavit of Cheryl Whitman sworn June 21, 2016, with exhibit; and, the affidavit of Roger Hinkson, sworn June 21, 2016.

[54] I have reviewed and considered Mr. Dawson’s motion materials, which includes the Motion Record with his affidavit sworn April 4, 2016, together with exhibits. I have also considered his reply affidavit sworn June 24, 2016.

[55] I have reviewed and considered the Responding Record of CFS which includes the affidavit of Howard Campbell, sworn June 21, 2016, together with exhibits. The affidavit of Cheryl Whitman sworn June 21, 2016, with an exhibit and the affidavit of Roger Hinkson, sworn June 21, 2016.

[56] Cross-examinations were conducted and the following transcripts were available to me as part of the evidentiary record:

• Cross-examination of Ronald Dawson on June 28, 2016.

• Cross-examination of Howard Campbell on June 28, 2016

• Cross-examination of Cheryl Whitman on June 28, 2016

• Cross-examination of Roger Hinkson on June 28, 2016

Findings

[57] For the following reasons, I find that there are genuine issues requiring a trial. I find that this summary judgment motion is not an appropriate method for adjudicating Mr. Dawson’s claims. The genuine issues requiring a trial involve whether Mr. Dawson employment had been terminated by CFS without cause or, whether Mr. Dawson resigned from or abandoned his position with CFS. The parties are diametrically opposed in their positions regarding this issue. Mr. Dawson claims that his employment was terminated without cause; CFS denies terminating such employment and asserts that Mr. Dawson either resigned from/or abandoned his position with CFS.

[58] Mr. Dawson submits that the same factual matrix he asserts provides the foundation for his Human Rights claim. The material facts are very much in issue in this case and credibility will be key in resolving these issues.

[59] Further genuine issues requiring a trial relate to whether Mr. Dawson suffered any disability as a result of his alleged wrongful dismissal or whether Mr. Dawson suffered from illness or disability unrelated to his employment situation.

[60] The issue of damages is also in dispute in respect of the appropriate quantum, if Mr. Dawson’s employment was wrongfully terminated, and the quantum of damages, if Mr. Dawson successfully establishes his claim for general damages, pursuant to the Human Rights Code.

[61] Having found that there are genuine issues requiring a trial, I must then determine if the need for a trial can be avoided by using the discretionary powers available to me. I may use those discretionary powers provided their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^12]

[62] As stated, the inquiry into the interest of justice is comparative and may require the motions judge to assess the relative efficiencies of proceeding by way of summary judgment as opposed to trial. This may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.[^13]

[63] Rule 20.04(2.1) provides that the motions judge may weigh the evidence, evaluate the credibility of the deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.

[64] I am not satisfied that the dispute can be fairly and justly adjudicated on the evidence submitted by the parties. I find that there is insufficient evidence to make a fair and just determination on the merits. The summary judgment process does not allow me to make the necessary findings of fact, allow me to apply the law to the facts and find that the summary judgment process is a proportionate, more expeditious and less expensive means to achieve a just result in this case. I am not satisfied that the Moving Party, Mr. Dawson, who bears the onus of proving there is no genuine issue requiring a trial, has done so in this case. I am not confident that I can find the necessary facts and apply the relevant legal principles so as to fairly resolve the dispute.

[65] Where a motions judge does not have confidence in making the necessary findings of fact, then the summary judgment process should not be seen as a proportionate means to resolve the dispute.

[66] I have found that there are genuine issues requiring a trial. Having done so, I should then determine if the need for trial can be avoided by using the discretionary powers. Those discretionary powers may be used provided that their use is not against the interest of justice. Their use would not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^14]

[67] On this evidentiary record, the use of those discretionary powers do not permit me to exercise them in favour of the interest of justice leading to a fair and just result and serving the goals of timeliness, affordability and proportionality in light of the litigation as a whole. The parties have radically different evidence in respect of what happened at the July 3, 2015 meeting between Mr. Dawson and Mr. Campbell. Mr. Dawson maintains that he understood that his employment was terminated with CFS as a result of that meeting. Mr. Campbell maintains that Mr. Dawson’s employment was never terminated and he fully expected Mr. Dawson to continue with his employment.

[68] Despite Mr. Dawson’s submission that this is a straight forward claim for wrongful dismissal without cause, I find this is not the case given the material facts that are in dispute. This summary judgment motion does not simply involve the amount of severance owed to Mr. Dawson, given his age and years of service.

[69] I find the legal issues are much more complicated and more specifically are as follows:

• Whether Mr. Dawson’s employment was terminated;

• Whether his failure to return to work the week of July 6, 2015, amounted to resignation or abandonment of his employment;

• Whether Mr. Dawson was actually suffering from any medical condition, illness or disability as a result of his alleged termination of employment;

• Whether Mr. Dawson intended to return to work after July 3, 2015; and,

• Whether Mr. Dawson intended to return to work after his medical leave.

[70] CFS submits Mr. Dawson’s own evidence is that his employment was not terminated on July 3, 2015. On cross-examination, Mr. Dawson agrees that Mr. Campbell never used the word “terminated”. Mr. Dawson states as follows:

Q. So what did he say to you?

A. That he needed and executive chef.

Q. And that’s why he was letting you go?

A. He never said that, no.

Q. So he never used the word “terminated”?

A. No, ma’am.

Q. He never said: “You don’t have a job as of “x” date?

A. No.[^15]

[71] It was Mr. Campbell’s testimony that no termination of employment was made at the July 3, 2015 meeting and no end date (or working notice) was ever given to Mr. Dawson.

[72] It was also Mr. Campbell’s evidence[^16] that it was not his practice to terminate someone’s employment without preparing a termination letter and severance package in advance. Ms. Whitman[^17] also confirmed this evidence to be true.

[73] Mr. Campbell also states that he would not have an employee work their notice period if he was terminating their employment. Therefore, Mr. Dawson would not have been expected to return to work on July 6, 2015 if he had been terminated on July 3, 2015. Mr. Dawson knew he was to report to work on July 6, 2015 and so he notified CFS when he would not be in.[^18]

[74] Mr. Dawson agrees he was not provided with a termination letter at the July 3, 2015 meeting.[^19]

Mr. Dawson’s Resignation

[75] Whether Mr. Dawson resigned from his position is a genuine issue requiring a trial.

[76] A resignation must be clear and unequivocal. To meet this test the resignation must objectively reflect an intention to resign or there must be evidence of such an intention.[^20]

[77] Like the Plaintiff in Skidd v. Canada Post, Mr. Dawson was not satisfied in his job. He told other employees of his dissatisfaction, of his intention to work one more hockey season and of his intention to retire soon. “Ron had a history of complaining about his job to me and to other staff, which I would overhear him saying.”[^21]

[78] A critical material fact to be determined is what Mr. Dawson meant when he said “I am done”.

[79] Despite the allegation that Mr. Dawson did not intend the statement “I am done” to mean he was resigning from his employment, he had made the statement in the context of being off work for flu-like symptoms, and on the following day, Wednesday, July 8, 2015, he failed to return to work or to update any of the employees at CFS.

[80] Further, it is alleged that he failed to return to work for the next seven business days without any further correspondence with CFS. CFS submits that this statement “I am done”, and given Mr. Dawson’s actions thereafter, including not showing up for work for more than a week and until Mr. Dawson provided a very unclear doctor’s note on July 16, 2015, could reasonably mean he was resigning from his employment with CFS.

[81] Mr. Dawson takes the position that the test for resignation as alleged in this case is not clear and unequivocal.

Abandoned Employment

[82] CFS submits that if Mr. Dawson did not resign, then he abandoned his employment with CFS. Again, Mr. Dawson maintains that he neither resigned nor abandoned his employment. Mr. Dawson maintains his employment was terminated.

[83] The test for abandonment is similar to the test for resignation:

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?[^22]

[84] CFS submits there is no evidence to support Mr. Dawson’s position that he had not returned to work between July 5, 2016 and July 16, 2016, as a result of stress arising from his alleged termination of employment. Further, Mr. Dawson’s own documentation shows that he was actively looking for other work on July 8, 9 and 14th, 2015, all while he was allegedly off work from CFS on a sick leave.[^23]

[85] There is further issue as to whether Mr. Dawson was following his physician’s recommendations. CFS submits there is medical evidence that he did not. It is also submitted there was no mention of stress or anxiety in the clinical notes or records of Dr. Geoffrey Bond, Mr. Dawson’s family physician. Further, it is submitted that there is no medical evidence provided by Mr. Dawson to support at what date he was medically able to return to work. Mr. Dawson admitted on cross-examination that he had health issues long before July 3, 2015.

[86] CFS submits despite the financial strain that Mr. Dawson alleges due to the termination of his employment, which he alleges required him to sell his home in Barrie and move to Washago, Mr. Dawson and his wife did not sell their vacation home in Florida. Mr. Dawson only disclosed that he had a second home when he was asked about the property on cross-examination.

[87] Mr. Dawson submits that the test for abandonment has also not been met by CFS and continues to assert that the wrongful termination of his employment resulted in Mr. Dawson suffering illness and/or disability. This is yet another genuine issue requiring a trial.

Notice Period and Mitigation

[88] CFS submits that Mr. Dawson has failed to advise on which date he was medically able to return to work, and as such, on which date he began looking for other work. His notes regarding mitigation suggest he began looking for work on July 8, 2015, when he was allegedly away from CFS because he was ill.

[89] CFS submits there are large gaps in Mr. Dawson’s mitigation efforts throughout the Fall of 2015 and the Winter of 2016.

[90] Mr. Dawson confirmed on cross-examination that he became re-employed on May 2, 2016 working 42 hours per week at $15.00 per hour, or earning $33,000 per annum.

[91] I find that there is a genuine issue for trial in respect of the appropriate notice period and issue of mitigation.

The Human Rights Code Claim

[92] CFS disputes Mr. Dawson’s claim to support the allegation that CFS violated the Ontario Human Rights Code on the grounds of age and disability. CFS vehemently denies that there has been any discriminatory conduct upon its part regarding Mr. Dawson.

[93] CFS submits that Mr. Dawson advanced the conversation with Mr. Campbell about his retirement plans and his intention to stop working after the next hockey season. This is in dispute. Further CFS submits that there is no evidence that Mr. Campbell forced this conversation on Mr. Dawson or made him discuss Mr. Dawson’s future plans for retirement.

[94] I conclude on this motion for summary judgment, Mr. Dawson has not met his burden of proving there is no genuine issue requiring a trial. A fair and just determination on the merits cannot be determined on the evidentiary record before this court. There are significant, contentious, material factual issues and serious credibility issues that cannot be resolved on the motion. Those issues ought to be determined at trial. This is not an appropriate case in which the court’s discretionary powers to weigh evidence, evaluate credibility and draw inferences ought to be exercised. I find that, without seeing and hearing all witnesses at trial, I cannot say that I am confident that I can find the necessary facts and apply the relevant legal principles so as to fairly resolve this dispute on a motion for summary judgment. On this motion, the summary judgment process cannot provide the full range of evidence and specific focus required to fairly and justly adjudicate this dispute in a timely, affordable and proportionate manner. The simple use of affidavits and transcripts is not enough. Neither is this an appropriate case in which the court’s discretionary powers to weigh evidence, evaluate credibility and draw inferences ought to be exercised.

CONCLUSION

[95] For these reasons, the motion for summary judgment is dismissed. The parties have agreed that costs shall be determined by way of written submissions. Within the next 10 days from the date of these Reasons, the Parties shall exchange concise statements on costs no longer than two pages, costs outline, draft bill of costs, together with authorities and any reply submissions.

[96] Said written submissions shall be filed with my judicial assistant at Barrie within the next ten days.

DiTOMASO J.

Released: December 7, 2016

1. Plaintiff’s given name was corrected on page one in the title of proceedings from Richard Dawson to Ronald Dawson.

[^1]: Rules of Civil Procedure, R.R.O. 1990, Regulation 194 at Rule 20.04(2); Hryniak v. Mauldin, 2014 SCC 7 at para. 49

[^2]: Rules of Civil Procedure, R.R.O. 1990, Regulation 194 at Rule 20.04(2.1)

[^3]: Hryniak, at paras. 50 and 57

[^4]: Hryniak at paras. 45 and 61

[^5]: Rules of Civil Procedure, R.R.O. 1990, Regulation 194 at Rule 20.04(2.1)

[^6]: Hryniak at para. 66

[^7]: Hryniak at para. 66

[^8]: Hryniak at para. 58

[^9]: Rules of Civil Procedure, R.R.O. 1990, Regulation 194 at Rule 20.04(2.1); Hryniak at paras. 63 and 65

[^10]: Hryniak at para. 64

[^11]: Hryniak at para. 65

[^12]: Hryniak Supra at para. 66

[^13]: Hryniak Supra at para. 58

[^14]: Hryniak Supra at para. 66

[^15]: Transcript taken on the cross-examination of Ronald Dawson on June 28, 2016 at page 11, line 25 and page 12, lines 1-10.

[^16]: Affidavit of Howard Campbell sworn on June 21, 2016 at para. 34, Tab 1.

[^17]: Affidavit of Cheryl Whitman sworn on June 21, 2016 at para. 11, Tab 2, Responding Record

[^18]: Affidavit of Howard Campbell sworn on June 21, 2016, at para. 34, Tab 1, Responding Record

[^19]: Affidavit of Ronald Dawson sworn on April 4, 2016, at para. 24, Tab D, Motion Record

[^20]: Skidd v. Canada Post Corp., [1993] O.J. No. 446 (Ont.Gen.Div.) affirmed (Ont.C.A.)

Skidd v. Canada Post Corp., [1997] O.J. No. 712, ONCA 

[^21]: Affidavit of Roger Hinkson sworn June 21, 2016 at para. 8, Tab 3, Responding Record

[^22]: Pereira v. Business Depot Ltd., 2009 BCSC 1178, [2009] B.C.J. 1731, varied on other grounds (2011) BCCA 361

[^23]: Ronald Dawson’s mitigation documentation, Tab 13, Page 73, Motion Record