CITATION: Aboagye v. Atomic Energy, 2016 ONSC 8165
COURT FILE NO.: CV-14-5476
DATE: 2016 12 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANCIS ABOAGYE
Self-Represented
Plaintiff
- and -
ATOMIC ENERGY OF CANADA LIMITED
Frank Cesario, for the Defendant
Defendant
HEARD: September 22, 2016
REASONS FOR SUMMARY JUDGMENT
FAIRBURN J.
A. Overview
[1] Francis Aboagye was hired by Atomic Energy of Canada Limited (“AECL”) as an Industrial Safety Specialist. He was on the job for just over six months when AECL terminated his employment. AECL say that they had a few reasons to dismiss Mr. Aboagye, including that it was discovered that he had been dishonest in answering questions on a security questionnaire.
[2] Mr. Aboagye filed at Statement of Claim, pursuing a wrongful dismissal action and seeking damages in the amount of about $4 million. This is an application brought by AECL to dismiss the action by granting summary judgment on the basis that there is no genuine issue for trial. In the alternative, AECL argues that the action should be dismissed under the court’s inherent jurisdiction to dismiss claims that are frivolous, vexatious and an abuse of process.
[3] There is no need to consider the alternative argument. Mr. Aboagye’s employment was properly terminated. Standing on its own, his dishonesty in the hiring process destroyed the trust relationship between employer and employee. There was just cause to dismiss him and there is no genuine issue for trial. Summary judgment is granted and the action is dismissed in its entirety.
B. Obtaining Employment at Atomic Energy of Canada Limited
[4] AECL is Canada’s leading nuclear agency. It runs nuclear research facilities in various locations, including Chalk River, Ontario. It also operates facilities elsewhere, including the Port Hope Area Initiative, PHAI.
[5] According to the affidavit evidence of the Lee-Anne Johns, the manager of “Personnel Security Services of Canadian Nuclear Laboratories”, “[t]he PHAI implements the Government of Canada’s projects regarding the cleanup of and long-term, safe, management of historic low-level radioactive waste.” AECL employees have access to nuclear facilities and information vital to the security of Canada. As such, all employees are required to obtain security clearances that correspond to their positions.
[6] In running security checks, AECL complies with the Government of Canada’s “mandated rules”. Site access security clearances are done in accordance with the Canadian Nuclear Safety Commission’s requirements, which are governed by the Nuclear Safety and Control Act, S.C. 1997, c.9, the General Nuclear Safety Control Regulations, SOR/2000-202, and the Nuclear Security Regulations, SOR 2000-209.
[7] The Canadian Nuclear Safety Commission publishes a document called “Security: Site Access Security Clearance”. It sets out the process, requirements and expectations with respect to site access security clearance. As noted in Ms. Johns’ affidavit, granting security clearances in accordance with the rules and regulations is a prerequisite to AECL obtaining and maintaining a licence to operate facilities under the Nuclear Safety and Control Act. The clearances are designed to protect national security.
C. Mr. Aboagye’s Security Clearance
[8] By letter dated April 3, 2012, Mr. Aboagye was offered employment with AECL as an Industrial Safety Specialist. The offer of employment was subject to successfully obtaining security clearance and the plaintiff was told that he would be contacted regarding a start date upon obtaining clearance.
[9] At the time that AECL extended the offer of employment, the plaintiff was working at Ivaco Rolling Mills LP. Ivaco offered him a job on March 26, 2012 and, according to the plaintiff’s own evidence, he commenced work on April 9, 2013. While his employment at Ivaco was terminated on May 17, 2012, he was paid until May 25, 2012.
[10] After AECL extended their job offer on April 3rd, they sent Mr. Aboagye a “Security Questionnaire For Site Access Clearance (SAC)”. He filled out the document, signed and dated it April 29, 2012. There is no dispute that the plaintiff was still working at Ivaco when he filled out the security questionnaire and returned it to AECL.
[11] The questionnaire specifically warns that the information requested is required to conduct a security assessment. It also warns that a “refusal to provide information will lead to a review of whether the person is eligible to hold the position or perform the contract that is associated with this Personnel Screening Request”.
[12] Part of the form asks the potential employee to give his or her employment history for the last five years. The form warns that “there should be no gaps, include unemployment and schooling”. Ms. Johns’ affidavit speaks to the importance of prior employment information, permitting AECL to assess a “potential employee” and verify his or her “character, honesty, qualifications, background and trustworthiness (including by contacting former employers)”. Mr. Aboagye failed to disclose his employment at Ivaco.
[13] On May 10, 2012, the plaintiff was contacted over email by an AECL Personnel Security Officer. The email exchange formed part of the factual record in this case. The plaintiff was specifically asked whether he was “presently in school, working or unemployed”. (His security questionnaire showed his last employment as having ended in August 2011.) If he was working, he was asked to provide specific information about his current employer. Mr. Aboagye quickly responded, saying that he was “unemployed”. This is a patently false answer.
[14] Mr. Aboagye was granted site security access on May 15, 2012 based on the information that he had provided. Two days later, the plaintiff was terminated from Ivaco on the basis that he had failed to meet performance expectations during his probationary period.
[15] The plaintiff was examined for discovery and disputes very little of the above. He agrees that he was working for Ivaco from April 9 to May 17, 2012. He agrees that Ivaco continued to pay him until May 25, 2012. He agrees that when he filled out, signed and sent his security clearance document to AECL that he was working at Ivaco and that he did not include his current employment on the form. He further agrees that the security clearance document is important.
[16] During his discovery, the plaintiff provided various explanations for failing to disclose his Ivaco employment. First, he said that the form was “accurate” because he had only been working for three weeks at the time that he filled it out and he did not consider Ivaco “full-time employment”.
[17] His second explanation was that he simply “matched” the employment reflected on his résumé when he applied for the AECL job. As he was not working at Ivaco when he applied to AECL, there was no need to put that information on the security questionnaire. His third explanation was that he intended on leaving Ivaco and so he was “always going to neglect it as part of [his] jobs”.
[18] His fourth explanation for failing to disclose is that his safety would have been placed at risk if he had disclosed. Mr. Aboagye takes the position that when he was working at Ivaco, the police in Hawkesbury were following him. Mr. Aboagye self-identifies as a “black man”. He suggests that this made him a target of unwanted police surveillance and that if he had tried to leave town, or the police learned that he was trying to leave town, they may have killed him. The following excerpt of transcript from the discovery captures this final reason:
Q. How was Ivaco going to know about this and how was that going to put your safety [at] risk?
A. Because Ivaco was aware that I’m being followed by police. And how do I know if it’s Ivaco management having the police to do this job. In this case if they inform the police that, look this guy is leaving the town, there’s a possibility that the police say we’re not going to get this criminal away alive. Maybe we can try to shoot him before he leaves the town. So my safety was at risk in the town as a black man working in a strange town, being followed by the police …
Q. Sir, that just doesn’t make sense.
A. Well, it makes sense if you’re a black man …
Q. No.
A. Have you seen what’s happening in the States?
Q. Sir, none of that has anything to do with why you didn’t fill out this form correctly ---
A. That is why I didn’t put that, because I was trying to move peacefully away from the town without the police knowing that I’m getting out.
[19] Mr. Aboagye agreed at the discovery that he “deliberately” failed to disclose his Ivaco employment. He says that his first day of employment at AECL was May 29, 2012.
D. Termination of Employment at AECL
[20] AECL received many complaints about Mr. Aboagye having harassed other employees. The complaints started almost immediately upon his having been hired. In October 2012 he was placed on investigatory leave pending the outcome of an investigation into his alleged conduct.
[21] In an investigative summary dated November 23, 2012, numerous harassment-related allegations are chronicled. The investigator summaries the complaints as having a “general theme of misogynistic statements and intimidating conduct”. Mr. Aboagye’s position is that he was the victim of a conspiracy to have him fired from AECL because of his racial background. The Port Hope O.P.P. are said to be part of the conspiracy.
[22] Mr. Aboagye was interviewed on October 31, 2012. During the course of the interview, he was asked about former education and work experience. He made “brief reference” to having worked at Ivaco Rolling Mills LP. The investigator asked him why he had not disclosed this employment on his security questionnaire and he said that he “did not think it was relevant to bring up afterwards”. When pressed on the reason, Mr. Aboagye replied that he did not want AECL to know about his experience at Ivaco. This is a possible fifth explanation for the decision to withhold the Ivaco information from AECL.
[23] Mr. Aboagye was also asked about why he had been so difficult to get in touch with when AECL was attempting to extend the offer of employment in March and April 2012. At the time, he told AECL that he was unreachable because he was attending his father’s funeral in Africa. He admitted in the interview that this was not true and, in fact, he was working at Ivaco at the time and did not want AECL to know that he was working there.
[24] AECL made a decision to terminate Mr. Aboagye’s employment on December 5, 2012. He was actually terminated one week later. The termination letter sets out the fact that 12 allegations of harassment had been substantiated. The letter also notes that there is no evidence supporting Mr. Aboagye’s claim of conspiracy to have him fired. The letter also references Mr. Aboagye’s failure to disclose his employment with Ivaco Rolling Mills and his having lied to AECL about attending his father’s funeral in Africa.
E. The Canadian Human Rights Commission Complaint
[25] The plaintiff lodged a complaint with the CHRC on November 16, 2012, but it was not forwarded to AECL until December 11, 2012. A full investigation was completed by the CHRC and a report issued on September 5, 2013. Among other things, the report notes at para. 135:
The evidence gathered supports that the complainant was dismissed during his probationary period following the outcome of an internal AECL investigation which revealed that he intentionally failed to disclose to AECL and on his Security Clearance Form, relevant prior employment experience. He also misled AECL as to the reasons why they had not been able to contact him. The excluded information was relevant to AECL’s selection and security clearance process. … The failure to accurately complete the CSIS Security Clearance form and the repeated misinformation resulted in a breakdown of trust in the employment relationship and was directly responsible for the complainant’s dismissal.
[26] The investigator concluded that the evidence “does not support the suggestion that Mr. Aboagye’s dismissal was linked to his race, colour, national or ethnic origin as alleged”. The complaint was dismissed on December 12, 2013.
[27] While the plaintiff has had three trips to the Federal Court, twice attempting to obtain an extension of time in which to file his Notice of Application for judicial review, and once raising a disclosure issue, each application was rejected by the court.
[28] During his discovery, Mr. Aboagye claimed that an officer in the Port Hope O.P.P. told him that the police were involved in getting him dismissed from AECL. Other than Mr. Aboagye’s claim, there is no evidence of this fact. When asked why the police would want him fired from AECL, he said that AECL should ask the police that.
F. Police Reports
[29] Despite the plaintiff’s fixation with the police and their alleged interference with his employment, the police reports that have been obtained do not bear this out. An April 17, 2012 O.P.P. report suggests that the plaintiff went to a detachment and reported that he was being followed. He asked the officer to contact the Toronto Police Service to determine the reason he was being followed. The officer did not do so. Rather, as reflected in the report, the officer explained to the plaintiff that Hawkesbury is a small town and it is not uncommon to run into people on a few occasions without it being suspicious.
[30] A September 13, 2012 police report suggests that an officer was called to the PHAI one day. The officer was informed that sometime previously, some people had been overheard commenting about “brown people”. Mr. Aboagye told the officer that he thought that he was being followed. He also informed the officer that there had been a harassment complaint dealt with by the Hawkesbury O.P.P.
[31] Finally, during the hearing of this motion, Mr. Aboagye provided the court with a copy of a Toronto Police Service report. It shows that he was involved in a police matter on the Don Valley Parkway in Toronto sometime ago. The matter appears to relate to a drinking and driving investigation.
G. Position of Mr. Aboagye and His Credibility
[32] The plaintiff says that the motion for summary judgment should be dismissed. He did not harass anyone. Quite to the contrary. He says that he has been harassed by AECL and the police. He is sure that someone was following him. It was likely the police. He says that his great fear of the police arises from having been stopped on the Don Valley Parkway in 2006. He alleges that the police pointed guns at him during this stop and it made him fearful for his life when he deals with the police. Mr. Aboagye says that this legitimate fear of the police, and what they may do to him if they learned he was leaving Hawkesbury, is the reason he did not disclose to AECL his work at Ivaco.
[33] Despite failing to put his Ivaco employment on the security questionnaire, Mr. Aboagye insists that he told AECL about his Ivaco employment on his very first day of work at AECL. This disclosure is disputed by AECL.
H. Summary Judgment Should be Granted
[34] Rule 20.01(3) of the Rules of Civil Procedure permit a defendant in AECL’s position to move for summary judgment.
[35] Under Rule 20.04(2)(a), summary judgment “shall” be granted if the court is satisfied “that there is no genuine issue requiring a trial with respect to a claim”. In Hryniak v. Mauldin, 2014 SCC 7, at para. 49, Karakatsanis J. held that there is no genuine issue requiring a trial when:
the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[36] Summary judgment can be used to determine whether a dismissal is for cause: Arnone v. Best Theratronics Ltd., 2015 ONCA 63, at para. 12; Merritt v. Tigercat Industries Inc., 2016 ONSC 1214, at para. 26.
[37] Lying at the core of a summary judgment motion is the need for a fair and just determination of the case. In determining if there is a genuine issue for trial, the court shall consider all of the evidence and may weigh the evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence: Rule 20.04(2.1).
[38] Where the court is in a position to find the facts necessary to resolve the dispute, then “proceeding to trial would generally not be proportionate, timely or cost effective”: Hryniak, at para. 50. It is not about whether the procedure on a summary judgment application is as “exhaustive as a trial”, but whether the decider can have “confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”: Hryniak, at para. 50.
[39] This is an appropriate case to determine whether the plaintiff’s conduct relating to his failure to disclose his Ivaco employment on the security questionnaire, and his overt lie about not being employed, establishes just cause for his termination. The evidentiary record is largely undisputed on his misleading and deceptive conduct. The court is well-positioned to make findings of fact and apply them to the law.
[40] The leading case for dismissal for cause is McKinley v. BC Tel, 2001 SCC 38. In McKinley, Iacobucci J. advanced a contextual approach to determining if employee dishonesty amounts to just cause for dismissal. He held that “whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct”: McKinley, at para. 48.
[41] Having regard to the entire context, the core question is whether the dishonesty “gave rise to a breakdown in the employment relationship”: McKinley, at para. 48. It is an analytical framework that requires the court to assess each case on its own and consider the “nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship”: McKinley, at para. 57.
[42] While dishonesty will not necessarily give rise to cause for dismissal, dishonesty that goes to the “core of the employment relationship” carries the potential for dismissal. For instance, if the dishonesty “violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer”, it may well constitute conduct going to the core of the employment relationship: McKinley, at para. 48; Steel v. Coast Capital Savings Credit Union, 2015 BCCA 127, at para. 30.
[43] The context in which Mr. Aboagye was hired is critical to the assessment of whether the dishonesty is such that it gave rise to a breakdown in the employment relationship. It is perhaps trite to observe that AECL is not a regular employer making inquiries into a potential employee’s past employment so that his or her suitability for a position may be assessed. While this observation is not meant to diminish the importance of inquiries made in the normal course of hiring, AECL makes these inquiries for reasons that extend well beyond an assessment of suitability based on past performance.
[44] Beyond the usual reasons why an employer wants to know about past employment, AECL makes these inquiries because they are required to do so. This requirement is tied to the security of the nation. As above, AECL operates in a highly regulated environment and must comply with Government of Canada security processes and procedures. Their very ability to operate relies upon a proper execution of these laws, rules and regulations. As noted in Ms. Johns’ affidavit:
This security clearance application is part of the security requirements for the nuclear industry that are dictated by the Government of Canada (Canadian Nuclear Safety Commission) for the purpose of protecting national security, and, they are therefore of critical importance. The security clearance application is required, as part of the Government-mandated screening process, for AECL to assess a potential employee’s reliability (in terms of honesty and trustworthiness) and for the Government (CSIS) to assess a potential employee’s loyalty to Canada.
[45] It is in this national security context that the plaintiff misled his employer. Not only did he admittedly choose to withhold the information about his employment at Ivaco, but he did so despite the warnings on the security questionnaire. He was warned that there should be “no gaps” left in the employment information and he was warned about the implications of failing to be forthright. Yet he did not disclose. And when he was specifically asked about whether he was “presently” “working”, he outright lied: “I am currently unemployed”.
[46] I specifically reject Mr. Aboagye’s claim that he disclosed his Ivaco employment on the first day he worked at AECL.
[47] First, even if this is true, it does not solve the problem that the plaintiff misled his employer when he filled out the security questionnaire and outright lied to his employer about his employment status.
[48] Second, to the extent necessary, I reject the plaintiff’s evidence that he told AECL that he had worked at Ivaco. While the plaintiff points to a few documents in support of his claim that he told AECL about his Ivaco employment when he started his employment at AECL, the documents do not support his claim. Nor does logic.
[49] One of the documents he points to is an email dated October 25, 2012. This is about a week before he was interviewed and almost six months after he started at AECL. The email suggests that the employer wants to look into concerns about past employers and the “integrity of the information that Francis has provided upon recruitment/hiring”. The email says that these inquiries should be expedited.
[50] If anything, the timing of this email supports AECL’s position that they did not know about Ivaco until long after Mr. Aboagye started working there. The email reveals nothing more than AECL’s concern about possibly having been misled by the plaintiff. The email demonstrates that the concern is in its formative stages. It was on the eve of the plaintiff being interviewed.
[51] As for the other document Mr. Aboagye points to, they are handwritten, undated notes that simply reference the fact that his past employment should be looked into. The notes do not support the plaintiff’s claim that he told AECL about Ivaco in May 2012.
[52] From a logic standpoint, it makes no sense that the plaintiff would have told AECL about Ivaco on his first day of employment, yet there would be no record of him having disclosed this fact. The email from October 25, 2012, and the employer wondering about the possibility of having been misled, belies the plaintiff’s claim that he confronted the issue and came clean on his first day of work at AECL. Mr. Aboagye has no credibility when it comes to this claim and, to the extent necessary, I reject it.
[53] As for his claim that he misled AECL about his Ivaco employment because he was fearful for his safety, I also reject this claim. Again, it is irrelevant to the fact that he misled and lied to AECL, conduct that went to the core of the employer/employee relationship.
[54] To the extent necessary, though, I find this claim to be without any merit or credibility. There is not a scintilla of evidence that supports the claim. While I accept that the plaintiff attended at the Hawkesbury O.P.P. to complain about someone following him, and it may even be that he thought this was happening, to suggest that he had to mislead and then overtly lie to AECL because the police may shoot him if they knew he was leaving Hawkesbury, defies all common sense and is without credibility. The mere fact that the plaintiff provided no less than four cascading explanations during his examination for discovery, as to why he did not disclose his Ivaco employment, points to only one conclusion. His final explanation, about fear for his safety, is a fabrication designed to explain a serious lie that he has been caught in.
[55] The plaintiff’s acknowledgment that he lied when he told AECL that he was at his father’s funeral in Africa, merely to avoid them knowing that he was working at Ivaco, is not only evidence of his carelessness with the truth, but of his ease with conveying a lie.
[56] The plaintiff omitted to speak the truth when asked about prior employment on the form. He actively lied when asked about his employment by email. He did all of this in the context of a highly regulated, rule oriented security check, among other things, designed to protect the nation.
[57] Leaving aside all of the other issues explored by the employer in and around the time of the plaintiff’s dismissal, the plaintiff engaged in a most serious form of dishonesty and, standing on its own, it was irreconcilable with sustaining his employment relationship with AECL. It is dishonesty that went to the core of the employment relationship and he was terminated with cause.
I. Conclusion
[58] Summary judgment is granted dismissing the action against AECL.
[59] If the parties are unable to agree on the issue of costs, they will exchange written submission of no more than 3 pages length and deliver them to me by no later than January 30, 2017.
Fairburn J.
CITATION: Aboagye v. Atomic Energy, 2016 ONSC 8165
COURT FILE NO.: CV-14-5476
DATE: 2016 12 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANCIS ABOAGYE
Plaintiff
- and -
ATOMIC ENERGY OF CANADA LIMITED
Defendant
REASONS FOR SUMMARY JUDGMENT
Fairburn J.