Court File and Parties

COURT FILE NO.: CV-15-527180 DATE: 20170406

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER CUMMINGS Plaintiff – and – QUANTUM AUTOMOTIVE GROUP INC. Defendant

COUNSEL: Jordan Reiner, for the Plaintiff Morris Cooper, for the Defendant

HEARD: March 13 and 14, 2017

BEFORE: M. D. FAIETA j.

Reasons for Decision

INTRODUCTION

[1] The plaintiff, Peter Cummings, had worked as an Automotive Technician at a Mercedes-Benz dealership in Burlington, Ontario owned by the defendant, Quantum Automotive Group Inc. (“MBB” or “the Dealership”) for about nine years when his employment was terminated. MBB alleges that the plaintiff was terminated for cause for allegedly falsely reporting that the brake pads of a car that he had inspected had significant wear and, as a result, had to be replaced.

[2] The plaintiff admits that his measurement of the brake pads was inaccurate but denies that he intentionally understated their size or the need for their replacement. At trial, the plaintiff advanced a claim for (1) damages at common law for failure to provide 14 months’ reasonable notice of termination; and (2) termination pay and severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “Act”).

[3] The plaintiff was the sole witness called on his behalf. The defendant called three witnesses: (1) Dave Currie, MBB’s Shop Foreman; (2) David Harrison, MBB’s Fixed Operations Manager; and (3) Dick Van Wyck, counsel to MBB.

[4] For the reasons that follow, I have dismissed this claim. I have found that Cummings was dismissed for just cause in that he intentionally misrepresented that a customer’s brakes needed to be replaced when, in fact, such work was not required. Further, I have found that he is not entitled to termination pay or severance pay under the Act as he was “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

BACKGROUND

[1] Cummings is about 43 years old. He has been a licenced Automotive Technician since 1997. He worked at the Dealership from September 25, 2005 until his employment was terminated on January 21, 2015. At the time of his termination, Cummings was paid $31 per hour on a piece-work basis. Mercedes-Benz has established a tariff for repairs performed by its dealerships’ Automotive Technicians. Happily, for both their dealerships and their Automotive Technicians – but not their customers – the Mercedes-Benz tariff is generous. For instance, the tariff provides that a client will be billed four hours of labour for a brake replacement service regardless of how long it takes to perform that work. Similarly, an Automotive Technician will be paid four hours of wages for the brake replacement service regardless of whether it takes more or less time for the Automotive Technician to complete that work. A brake replacement service usually takes about 1 ½ hours to complete and, as a result, a brake replacement assignment was seen by Cummings (as well as by Currie and Harrison) as “lucrative” work. The use of this generous tariff is questionable in light of s.14(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, however I make no finding on this point.

[2] Cummings is an experienced Automotive Technician and was generally able to complete his work more quickly than the time prescribed by the tariff except in the case of recalls, for which repair work is paid by the manufacturer. Although he usually worked 40 hours per week, Cummings’ earnings reflected far more than the number of hours that he actually worked when multiplied by his hourly rate of pay. As a result, in 2014, Cummings earned $107,673.55. The plaintiff stated at trial that the Dealership encouraged him to work quickly as they both benefitted if he completed work in less than the time allotted by the tariff for a service.

[3] Harrison testified that, of MBB’s 20 Automotive Technicians, Cummings was one of the top three or four in earnings. In light of his work history, Harrison felt that Cummings was more interested in earning income than in the quality of his work. Cummings often rushed his work. On occasion, Cummings would complain that other Automotive Technicians were getting more lucrative repairs. Since Cummings’ termination, Harrison states that about 10 or 12 customers have asked why their brakes had not been replaced the next time they attended MBB given that Cummings had earlier recommended that they be replaced. Harrison stated that the Dealership had not proceeded with these repairs because such work was unnecessary.

Reprimands

[4] The Dealership had reprimanded Cummings on several occasions for poor performance.

Rear Shocks

[5] The Dealership sent the following letter, dated October 20, 2010, to the plaintiff:

This is to inform you of poor conduct on the work shop floor on your part. A 1999 C230 came into the shop on September 8, 2010. You provided an estimate for rear springs and replaced both front lower control arm bushings (4) in total. The vehicle came in for a clunking noise originally. On October 8, 2010 the vehicle returned for the rear shocks to be replaced and the customer again complained of clunking noise from the front over rough surfaces. Upon lifting the vehicle and inspecting, we found that all 4 nuts securing the lower control arms to the chassis where [sic] not only loose, but about to fall off the bolt ends. This is an extreme safety issue and could have had disastrous results had the nuts fallen off while the customer was driving the vehicle. Pictures have been taken and both they and this write up will be placed in your employment file. Both I and Doug are extremely disappointed in the poor work shown here and total lack of safety and care in your work.

[6] The plaintiff was able to recall this incident at trial. He stated that in rushing to get this job done, he failed to tighten “a few bolts”.

Transmission Oil Leak

[7] On November 11, 2010, the plaintiff was given an “Employee Warning Report”. It stated that he had been careless on October 8, 2010. There had been a transmission oil leak in an automobile that he had serviced that necessitated three return visits by the customer.

[8] The plaintiff does not recall receiving this document.

Broken Windshield

[9] On July 28, 2011, the plaintiff signed a “Technician Incident Report” regarding a shattered windshield “during PDI”. “PDI” means pre-delivery inspection. At trial, the plaintiff was able to recall this incident. A windshield wiper blade accidentally fell out of his hand and cracked the windshield of the automobile on which he was working.

Road Test & Incorrect Maintenance Recommendation

[10] The plaintiff signed the following “Technician Warning Report” dated April 25, 2012:

This document serves as a written notice that your performance as a Service Technician fail [sic] to meet the performance requirements of this position. The major area(s) of concern related to your performance are described below:

• 5 km road test performed on vehicle not 10 kms as per policy
• Coolant recommendation of 3 years is incorrect

Your position is very important and central to our dealership’s operations. Improvement in the …

• Correct maintenance recommendations to always be provided to customer. Coolant renewal on this vehicle is not 3 years it is 250,000 kms or 15 years. Road tests must be [minimum] of 10 kms. The vehicle recorded 5 km road test.

Your failure to improve in the above referenced areas may warrant further action. I will continue to monitor and assess your progress in elimination [of] these deficiencies over the next _____ to determine whether required improvements have been satisfactory.

If you have any questions or concerns, please do not hesitate to discuss them with me.

• Road test not completed due to customer waiting for too long for vehicle + was very unpatient [sic] + had to go asap. [Strikethrough handwritten in original.]

[11] The plaintiff was able to recall this incident at trial. He stated that a customer wanted his vehicle back quickly. As a result, he hurried through the job.

Damage Caused by Excessive Force

[12] The following statement dated November 22, 2013 was signed by the plaintiff:

Subject: Review of Video of Moulding Removal; Meeting to Discuss and Document Work Performance Warning on removing the moulding and adhesive from a white G-wagon.…

1. Viewed video of Peter removing moulding from vehicle. He agreed he started the removal process properly by forcing and prying a plastic wedge under the moulding to start the removal, but then used excessive force to remove the remainder of the moulding.
2. [He] denied any paint or body damage was caused by the removal of the mouldings, spraying and wiping of solvent or scraping of the adhesive.

Discussion of the incident in the boardroom focused on:

3. Work practice to remove moulding. Peter agreed he used excessive force to remove the moulding.
4. Work practice to remove adhesive. Peter stated that he used a Wurth solvent to remove the adhesive. Video also shows him using a plastic scraper to remove the adhesive.
5. Damage to vehicle. Peter denied he caused any paint or body damage and refused to sign the warning report. He stated that he did not cause damage to the vehicle paint as no paint was found on the adhesive side of the removed mouldings. He kept all mouldings for inspection.
6. Joe stated he would produce documentation on the removal of the moulding and adhesive and the matter would be reviewed on November 25th.

[13] A further memo dated November 25, 2013 states:

Subject: Follow Up Action to November 22 Meeting to Discuss and Document Work Performance Warning

Actions:

1. … rub strips (mouldings) are bonded to vehicle body and door requiring careful and slow removal to prevent paint and body damage along their entire length.
2. … a solvent must be applied and left for a short time then removed using a sponge or microfiber cloth. The procedure does not include scraping with any tool which Peter used.
3. Mr. Geofroy supports the 90 day probation period with dismissal as a consequence for subsequent poor performance.

[14] The plaintiff recalled this incident as well. He testified that moulding, secured by a customer to an automobile using caulking, had started to peel. After experiencing difficulty in removing the moulding because of the caulking, Cummings lost his temper and pulled excessively on the moulding used by the customer.

[15] In his cross-examination, Harrison said that Cummings denied using excessive force in removing the moulding until he viewed a videotape taken by a security camera.

Failure to Complete Inspections

[16] The following letter, dated October 1, 2014, was sent by the Dealership’s Fixed Operations Manager, David Harrison, to the plaintiff:

As discussed in this morning’s meeting Peter it has been decided that you will be given a written warning regarding the unacceptable quality of your work.

It refers to not completing service inspections fully, resulting in the customer returning in two days with a brake warning on, and the rear brake pads worn down to the sensor. This made the customer question the quality of the work he has done and the credibility of MB Burlington.

This incident followed another case where, after finishing a coolant repair, the hoses were not installed correctly causing the coolant fan to cut the hose and the customer had to return immediately. This again made the customer question our stores [sic] credibility and had a drastic negative effect on our C.S.I. score. This, as you know, also reflects on all of your colleagues.

I have requested that you take the extra time to check all of your work and complete it fully, in line with all MB Canada Service and Warranty requirements, all documentation related to that repair. If you have any questions regarding this please seek advice form [sic] Dave Currie or myself.

You are a talented technician with great ability. However you are letting yourself down by rushing the repairs and not checking your work. This I cannot accept or defend. Please ensure your work is of a standard that we would both accept, and be under no illusion that any further cases will lead to your dismissal. I sincerely hope this will not be the case. Thank you.

[17] The plaintiff recalled this incident. He testified that he thought that the brakes had more pad than they did. Two days later, the brake wear indicator turned on and the customer returned. He also performed a thermostat replacement. He left a hose unlatched and it touched a fan and cut the hose.

The Recommendation for an Unnecessary Brake Repair

[18] On Friday, January 16, 2015, Cummings had completed repairs on two vehicles that had been brought in for service as a result of a recall notice. This work took longer than the time allotted by the Mercedes-Benz tariff. Cummings testified that “he got behind”. At about 11:30 a.m., Cummings was assigned to undertake a “B Service” on a Mercedes-Benz GLK (“GLK”). This is a major service. It is usually performed about once a year and requires the replacement/topping up of fluids in the vehicle, as well as the replacement of various filters. In addition, it requires the inspection of the vehicle, including the removal of all wheels; the rotation of tires, if needed; and the inspection of brake pads, all of which is done to assess whether any further work is required. Mercedes-Benz allocates 2.5 hours for the B service. This work is usually completed in 1.5 hours.

[19] MBB has several Service Advisors whose function is to communicate to their clients the recommendations of the Automotive Technicians regarding the service required for their vehicles.

[20] Cummings recalled that he removed the oil, changed the filter, topped up the washer fluid and coolant on the GLK. He raised the GLK on a hoist. He then sent the following email to a Service Advisor named Taleb, with a copy to the Parts Department and the Shop Foreman, before heading to lunch:

B SERVICE AIR FITLERS [sic] SPARK PL UGS [sic] FRONT BRAKES REAR BRAKES WIPER BLADES TRANS SERVICE

CEL DIAG. TALEB, THE BLADES ARE STEAKING AND NOISY

THE FRONT BRAKE ROTORS ARE 29.3(LF) MIN SAFE IS 29.4 PADS ARE AT 5MM ( LH OUTER).

THE REAR BRAKES ARE AT 20.0MM EVEN ( MIN MAINT IS 20, STILL SAFE AT 19.4) PADS AT 4 MM.

TRANS SERVICE SHOULD BE DONE AT 60K AS PER FSS.

CEL IS ON.

THANKS Peter Cummings

[21] Cummings explained that the first three items (B Service, air filters and spark plugs) were on the work order provided to him for the service. The remaining items (front brakes, rear brakes, wiper blades, transmission service, and diagnosis of check engine light) are work items that Cummings believed were required to be performed. Currie agreed that the cost of replacing brake pads and rotors would be about $1,000.

[22] Cummings testified that, after the Parts Department had determined the cost of the parts required to perform this work, a Service Advisor would call the owner of the vehicle in order to relay the information provided by Cummings and obtain approval to proceed with this work. Cummings stated that he intended that, after his return from lunch, he would either perform the above work if it was “sold” by the Service Advisor to the customer or, if it was not “sold”, he would remove and rotate the wheels. In the event that the customer deferred the required work to another occasion, such as the next scheduled visit, it was the Dealership’s practice to refer the service back to the same Automotive Technician who first recommended it – in this case, Cummings. Currie explained the rationale behind this practice as stemming from the fact that the Automotive Technician had “taken the time to generate the estimate”. As a result, Cummings agreed that the Dealership’s policy provided an incentive for him to advise a Service Advisor that a customer’s vehicle required a particular service on their next visit.

[23] Cummings and Currie explained that a new brake pad is about 10 to 11 mm wide. A warning indicator light in a vehicle turns on when there is a 2 to 3 mm width of brake pad remaining. Nevertheless, a person may safely drive the automobile about another 1,500 kilometres once the warning light has illuminated.

[24] Cummings testified that there are four brake pads on each of a vehicle’s two axles. He stated that a brake pad needs to be replaced when its thickness reaches 3 mm. He confirmed that he found the front brake pad on the GLK to be 5 mm thick, while the rear brake pad was 4 mm thick. He stated that the industry standard is to replace all four brake pads, including rotors, on an axle when one brake pad needs to be replaced.

[25] At trial, Cummings did not recall measuring the brake pads on the GLK. However, he believes that he did measure the brake pads as it was his “general practice” to check every vehicle.

[26] When asked at trial why he would have inspected the brakes without removing the wheels, given that he would have to remove the wheels as part of the B Service and given that it was easier to measure the brake pads and rotors with the wheels off, Cummings testified that an inspection of the brakes without removing the wheels would be done in order to more quickly obtain customer approval to proceed with the recommended repairs.

[27] Dave Currie is the Dealership’s Shop Foreman. Amongst other things, his duty is to monitor the quality of the repairs being performed in the repair shop. Currie has held this position since about 2014 and, before that, was an Automotive Technician with the Dealership since 2003. Currie testified that he walked by the GLK that Cummings had been servicing while Cummings was at lunch. The GLK was still on the hoist. He noticed that the wheels were still on the GLK. He also noticed that windshield washer fluid had leaked from the GLK onto the shop floor. Currie concluded that the windshield washer fluid bottle was leaking. Currie went back to his office and viewed the repairs that had been recommended by Cummings. He noticed that there was no mention of the windshield fluid bottle requiring replacement. He also noticed that Cummings had recommended replacement of all brakes even though the wheels were still on the GLK, which suggested to Currie that Cummings had not measured the brake pads or rotors.

[28] Currie sent the following email to Cummings and others at 12:54 pm:

You missed the washer fluid leaking! Remember 1 quote.. 1 phone call.

[29] Cummings did not respond to this email.

[30] During the lunch break, Currie spoke with his immediate supervisor, David Harrison. Harrison is the Fixed Operations Manager for the Dealership and is responsible for all departments at the Dealership, other than sales. Currie asked Harrison to view the GLK. He was concerned that Cummings had recommended that the Service Advisor contact the customer when it appeared that the automobile had not been fully inspected. After viewing the GLK during the lunch hour, Harrison also contacted the Service Advisor to ensure that the customer was not asked to approve the replacement of the brakes.

[31] Upon Cummings’ return from lunch, Currie instructed Cummings, at Harrison’s direction, to remove the wheels of the GLK to measure each brake pad and rotor. Cummings found that all brake pads were 6 mm thick with the exception of one rear brake pad that was 5 mm thick. Cummings acknowledged at trial that the brakes did not require replacement.

[32] However, Currie recorded the following measurements:

Front rotors 29.6/29.7mm pads @ 7mm with closest pad @ 6mm on the left outer.

Rear rotors 20.7/20.6mm pads @ 7mm all round.

Suspension Meeting – January 16, 2015

[33] At about 1:30 p.m., Cummings then went into Harrison’s office to meet Harrison and Currie.

[34] Both Harrison and Currie were angry, raised their voices and used profanities to express their anger at the fact that Cummings had recommended the replacement of brakes on the GLK when it was clearly unnecessary or prior to completing the inspection of the GLK as he had not yet removed the wheels. Cummings, Currie and Harrison agree that Cummings offered no explanation or response.

[35] However, at trial, Cummings suggested that he had made a mistake in measuring the brake pads, even though he has no recollection of having measured the brake pads. Further, at trial, Cummings stated that it was unnecessary to remove the wheels in order to measure the brake pads and rotors. It was his view that his inspection was completed by the time that he went to lunch. Currie stated that it was easier to measure the size of brake pads and rotors with the wheels removed. However, if the wheels were not removed, then it would be very difficult to measure the size of the rotors and less difficult to measure the size of the brake pads.

[36] At the meeting, Harrison also asked Cummings why he had missed the windshield washer bottle. Cummings responded that he had not yet finished his inspection. Harrison asked why he had sent his report seeking client authorization for repairs if he had not completed his full inspection. Cummings did not answer.

[37] Harrison told Cummings that he was suspended, effective immediately, with pay until the Dealership had completed its investigation.

[38] After the meeting, and on his way home after changing his clothes, Cummings acknowledges that he returned to Harrison’s office. Cummings was visibly upset. Harrison asked him what he was thinking in providing the inaccurate measurements for the brake pads, to which Cummings responded:

“I don’t know what I was thinking. I was trying to make up the time that I lost this morning.”

[39] In direct examination, Cummings testified that he told Harrison:

Something to the effect that I rushed through the job because my first two jobs I lost time on and I tried to get through the B Service a little faster than I should have – a lot faster than I should have.

[40] However, when asked in cross-examination, Cummings did not recall what he told Harrison. Later, in re-examination, Cummings explained that his statement to Harrison was not an admission that he had intentionally understated the size of the brake pads, but rather that he had performed the B Service too quickly. He stated:

…. because I had done so poorly on the first two jobs, I rushed through the B Service in order to get it finished as fast as I could. Not that I tried to steal. I have never stolen anything from a customer ever.

[41] Cummings admitted that he had no doubt of the seriousness of the suspension and that he might be fired after the investigation. He did not want to continue his employment with MBB because the Dealership no longer trusted him. He testified that he had made so many mistakes over the last year that he would not blame the Dealership if it fired him. As a result, during the suspension period, Cummings delivered his resume to another dealership.

Termination Meeting – January 21, 2015

[42] On Wednesday, January 21, 2015, at 5:00 p.m., Cummings attended the Dealership for a meeting with MBB’s General Manager, Owen Tseng, and its corporate counsel, Dick Van Wyck.

[43] Van Wyck testified that he conducted the meeting. Tseng said nothing during the meeting. Van Wyck told Cummings to sit down and not to interrupt him until he had stopped talking. Cummings found Van Wyck’s tone was aggressive. Van Wyck explained to Cummings that the investigation had concluded that he was involved in a “fraudulent brake job”. He explained that dishonesty was contrary to MBB’s values and that the potential bad publicity could have serious financial consequences for MBB. Van Wyck stated that Cummings made no eye contact with him and that his body language suggested that he “looked like a whipped puppy”.

[44] Cummings states that he was shocked and left speechless by the allegation of fraud. He acknowledged that Van Wyck gave him an opportunity to explain himself after Van Wyck had finished speaking. Cummings does not recall responding to Van Wyck.

[45] Although Cummings does not recall making any statement at this meeting, Van Wyck testified that Cummings’ only response to his allegations was:

“I guess I exercised poor judgment.”

[46] Van Wyck gave Cummings an envelope that contained the following termination letter, dated January 21, 2015, signed by Tseng:

This letter is to confirm the termination of your employment by the Company for cause, effective immediately, for the reasons discussed in our meeting.

Subsequent Employment

[47] Cummings acknowledged that it is difficult for dealerships to find experienced Automotive Technicians. Harrison testified that it took MBB four months to hire an Automotive Technician to replace Cummings.

[48] After being suspended and before he was fired, Cummings delivered his resume to a few dealerships. The plaintiff commenced employment as an Automotive Technician at Leggat Chevrolet Cadillac on February 8, 2015. He worked there until February 25, 2016. During 2015, he earned $66,395.33 with Leggat. His starting hourly rate was $31.50 per hour. He was paid on a piece work basis. The plaintiff explained that the reduction in his salary was due to the fact that the General Motor’s tariff is significantly less generous than the tariff established by Mercedes-Benz Canada.

[49] The plaintiff was hired by a Mercedes-Benz dealership in Brampton on February 26, 2016.

ISSUE #1: DID CUMMINGS INTENTIONALLY MISREPRESENT TO MBB’S SERVICE ADVISOR THAT THE GLK’S BRAKES NEEDED TO BE REPLACED?

[50] I adopt the following statement made in Faryna v. Chorny, [1952] 2 D.L.R. 352, at 357, (B.C.C.A.) about assessing the credibility of a witness:

The credibility of interested witnesses, particularly in cases of conflict of interest, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[51] I did not find Cummings to be a credible witness. Amongst other things, he was unable to recall the key details of this incident such as whether he measured the brake pads and what he said at the Suspension Meeting; however, he was able to recall many other details of the incident such as the two recalls that he worked on earlier that morning, replacing the oil and filter on the GLK, adding windshield fluid to the GLK, placing the GLK on the lift, and sending an email with a list of repairs to the Service Advisor, as well as the details of his actions in relation to earlier incidents for which he had been reprimanded. On the other hand, I found that Currie, Harrison and Van Wyck gave their evidence in a straightforward manner. I prefer their evidence over Cummings’ evidence where they differ.

[52] There is some difference in the measurements of the brake pads provided by Cummings and Currie. The reported measurements of the brake pads can be summarized as follows:

	Cummings’ First Measurements (Sent by Email to the Service Advisor)	Cummings’ Second Measurements (Requested by Currie and Harrison)	Currie’s Measurements
Size of Brake Pads on Front Axle	5 mm	6 mm	7 mm (with the exception of one brake pad at 6 mm)
Size of Brake Pads on Rear Axle	4 mm	6 mm (with the exception of one brake pad at 5 mm)	7 mm

[53] I accept Currie’s evidence of the size of the brake pads.

[54] Cummings submitted that he may have used a tool to measure the brake pads and that he may have mistakenly taken all eight measurements. I find this speculative re-creation of events improbable. I find it unlikely that he used a tool to measure any one of the eight brake pads. Had he done so, I find it improbable that he would have repeated the same mistake eight times. Further, both Cummings and Currie are experienced technicians. Given the thickness of the brake pads on the GLK, Currie was initially able to determine by sight and without measuring that they did not need replacement. His measurements confirmed his observation. In light of his experience, I find that it would have been readily apparent to Cummings, without measuring, that the brakes did not need to be replaced.

[55] Further, had Cummings’ measurements been the result of carelessness from rushing to do work, then he would have provided that explanation when offered the opportunity to explain his actions at the Suspension Meeting and at the Termination Meeting, when he was directly confronted.

[56] Instead, the evidence makes it clear that Cummings’ actions were driven by greed. Cummings’ own admission of habitually rushing work, as well as his 2014 salary, makes it clear that he is driven to maximize his income through piece work. Cummings had completed two unprofitable recall services that same day, which took longer to complete than the time for which he was paid, prior to rushing to submit a proposed work order to the Service Advisor for the GLK before leaving for lunch. I find that he did so in order to hopefully obtain customer approval over the lunch hour to proceed with a lucrative brake replacement service that afternoon.

[57] In this context, Cummings’ response to Harrison that he was trying to make up lost time – meaning lost earning in light of having completed two recall repairs that morning which left him “behind” – suggests that the measurements of the brake pads were intentionally misrepresented rather than negligently misrepresented. I draw the same conclusion in respect of his statement to Van Wyck that he “exercised poor judgment”.

ISSUE #2: WAS CUMMINGS DISMISSED FOR CAUSE?

[58] In McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, at paras. 48 and 49, Iacobucci J. stated:

… I am of the view 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. More specifically, the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where 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.

In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee's deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal. In my view, the second branch of this test does not blend questions of fact and law. Rather, assessing the seriousness of the misconduct requires the facts established at trial to be carefully considered and balanced. As such, it is a factual inquiry for the jury to undertake.

[59] In Fernandes v. Peel Educational & Tutorial Services Ltd. (c.o.b. Mississauga Private School), 2016 ONCA 468, at paras. 103-105, leave to appeal refused [2016] S.C.C.A. No. 376, the Ontario Court of Appeal stated:

The governing legal principles can be found at paras. 48-49 of McKinley. Justice Iacobucci, writing for the court, states that whether an employer is justified in dismissing an employee on the grounds of misconduct is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee's misconduct gave rise to a breakdown in the employment relationship. He notes that the test can be expressed in different ways: just cause for dismissal exists where the misconduct 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.

The principle of proportionality underlies this approach: an effective balance must be struck between the severity of an employee's misconduct and the sanction imposed: McKinley, at para. 53.

In Dowling v. Ontario (Workplace Safety and Insurance Board) (2004), 246 D.L.R. (4th) 65, at paras. 49-50, this court, following McKinley, concluded that the core question is whether the employee's misconduct was sufficiently serious that it struck at the heart of the employment relationship. To answer that question, the court must:

1. determine the nature and extent of the misconduct;
2. consider the surrounding circumstances; and
3. decide whether dismissal was warranted.

[60] In my view, Cummings’ intentional misrepresentation of the thickness of the GLK’s brake pads and the need for their replacement strikes at the heart of his relationship with MBB. Cummings is one of many Automotive Technicians supervised by Currie and, as a result, his recommendations are not typically reviewed by the Shop Foreman. In calling for an unnecessary repair, Cummings breached the trust that the Dealership placed in his judgment. He put the Dealership at risk of losing the confidence of its customers if authorization for such a repair had actually been given by the customer and the repair performed. Harrison testified that the Dealership’s focus is on its customers’ satisfaction and that it invests significant resources to ensure that it maintains its customers’ confidence. The Dealership’s customer goodwill would be damaged by an employee who calls for unnecessary repairs.

[61] Cummings understands the consequence of his actions. He testified that following the Suspension Meeting, he decided to look for another job as he felt that he had lost the trust of the Dealership. Cummings stated that the Dealership’s trust in him was important as no one usually checked his work order recommendations. He also stated that after the Suspension Meeting, he was of the view that he would not blame the defendant if it fired him given his work history.

[62] Having considered the matters described above, I find that Cummings’ dismissal was warranted.

[63] Had I found that his dismissal was not warranted, then I would have awarded Cummings damages in the amount of $42,956.69 for reasonable notice.

[64] The applicable legal principles for determining reasonable notice were described in Paquette v. TeraGo Networks Inc., 2015 ONSC 4189, appeal allowed on other grounds 2016 ONCA 618, as follows:

• An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income that the employee would have earned during the reasonable notice period, less any amounts received in mitigation of the loss: at para. 21.
• The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment: at para. 22.
• In determining the length of notice, a court should consider the following factors, on a case-by-case basis, in order to determine what constitutes reasonable notice of termination:
  • The age of the employee at termination;
  • The length of service;
  • The character of employment; and
  • The availability of similar employment having regard to the experience, training and qualifications of the employee: at para. 24.
• The reasonableness of the notice turns on the facts of each case. There is no “right” figure for reasonable notice. Most cases yield a range of reasonable figures: at paras. 23, 25.
• A longer notice period will usually be justified for older, long-term employees: at para. 31.
• Generally, the longer the duration of employment, the longer the reasonable notice period: at para. 30.
• A longer notice period is generally provided for senior management employees or highly skilled and specialized employees, and a shorter period is provided for lower rank or unspecialized employees: at para. 29.
• Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period: at para. 27.

[65] Cummings was 42 years old when his employment was terminated. He had been employed for nine years, three months by MBB as an Automotive Technician.

[66] Cummings submits that he is entitled to 14 months’ reasonable notice, and relies on the cases and facts below:

Case	Age	Years of Service	Character of Employment	Approximate Salary	Reasonable Notice in Months
Davidson v. Tahtsa Timber Ltd., 2007 BCSC 1684, var’d 2010 BCCA 528	43	12	Truck Driver	$55,000	10
Johar v. Best Buy Canada Ltd., 2016 ONSC 5287	46	10	Repair Technician	$61,000	11
Foerderer v. Nova Chemicals Corp., 2007 ABQB 349	47	12	Operating Technician	$100,000	12
Minott v. O’Shanter Development Co., [1997] O.J. No. 214 (Gen. Div.), aff’d, [1999] O.J. No. 5 (C.A.)	43	11	Maintenance Worker		13

[67] MBB did not submit any case law on this point. MBB submits that three or four months is appropriate given the demand for, and dearth of, experienced Automotive Technicians in the Greater Toronto Area.

[68] Having regard to the factors described above, it is my view that a period of reasonable notice in these circumstances would be six months.

[69] I also note that MBB does not submit that Cummings failed to act reasonably to mitigate his losses, nor does it quarrel with the damages quantification chart relied upon by Cummings in his factum, which outlines Cummings’ damages on a monthly basis taking into account his post-termination earnings.

ISSUE #3: WAS CUMMINGS “GUILTY OF WILFUL MISCONDUCT, DISOBEDIENCE OR WILFUL NEGLECT OF DUTY THAT IS NOT TRIVIAL AND HAS NOT BEEN CONDONED BY THE EMPLOYER”?

[70] A person whose employment is terminated is entitled to termination pay or pay in lieu of notice and severance pay under sections 54 and 64 of the Act, provided the legislative conditions are met.

[71] However, an employee is not entitled to termination pay or severance pay under the Act if he or she “has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”: see Termination and Severance of Employment, O. Reg. 288/01, ss. 2(1)3, 9(1) 6.

[72] I was not directed to, nor have I found, any decision of this court, that has considered the meaning of these exceptions.

[73] An employee’s statutory entitlement to termination pay and severance is more typically considered by the Ontario Labour Relations Board and I adopt the following statement of the Ontario Labour Relations Board in 8536350 Canada Inc. o/a The Joseph Esquega Health Centre v. Kayla Bachmann, at paras. 33-38:

33. The Board has characterized this exception to the obligation to provide employees whose employment is being terminated with notice of termination or termination pay as “very limited” and has repeatedly noted that the exception is to be distinguished from the concept of “just cause” which is found in most collective agreements and is a less exacting standard. (See for example Services Plus Acquatics Inc. v. Clarke).

34. The Board has held that in order to find that an employee has engaged in wilful neglect of duty, and therefore is not entitled to notice of termination or pay in lieu of notice, an employer must establish that the employee “consciously did something or omitted to do something that can be described as serious and wilful neglect of duty”. (Exeter Machine Products (1995) Ltd. at para. 15).

35. In Rea International Inc. o/a Atlas Fluid Systems at para. 38, the Board quoted as follows from the decision of Referee Brown in Aylmer Express Ltd.:

The “misconduct” or “neglect of duty” referred to in the Act is preceded by the term “wilful”. Therefore, it is not sufficient merely to show that an employee was indifferent, casual, thoughtless or neglectful in the performance of, or in the omission to perform, his or her duties or responsibilities. These acts or omissions must be the product of some deliberate or intentional act. The employee must consciously and deliberately engage in some positive act of misconduct or deliberately refrain from performing duties or responsibilities that he or she was required to perform.

36. The Board’s analysis regarding wilful neglect of duty involves consideration of the same factors as those found in the Board’s wilful misconduct analysis. In particular, in both instances, the Board must determine whether the conduct, or the lack of conduct as the case may be, is serious and wilful. The obvious difference between wilful neglect of duty and wilful misconduct is that the former focuses on the failure to do something while the latter focuses on the doing of something. (See Rea International Inc. o/a Atlas Fluid Systems at para. 38).

37. Given the overlap in the Board’s analysis addressing wilful misconduct and wilful neglect of duty, the following comments in VME Equipment of Canada Ltd., [1992] O.E.S.A.D. No. 230 (Ont. E.S.B. (Adjud.)) are equally applicable to an analysis of wilful neglect of duty:

…There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.

In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.

38. In Services Plus Aquatics (supra) the Board quoted from the decision in Charles Caldwell doing business as Canadian Tire (May 6, 1986, ESC 2197, M.R. Gorsky) where the Adjudicator stated:

It is necessary to first establish (the onus being on the Applicant) that the conduct of the Claimant can be categorized as being “wilful”. In Re Pentagon Mold & Tool Co. Ltd., April 11, 1974 (Magerman), E.S.C. 97, it was stated:

“A person cannot be said to be guilty of willful misconduct or willful neglect of duty unless he is conscious of doing the act which is complained of or in omitting to do the act which is said to have been done knowing he was committing a breach of his duty and also recklessly careless, whether it is a breach of duty or not.”

In Re Twin City Disposal Services, June 1, 1977 (Picher), E.S.C. 429, it is stated:

“Used in the legal context the word ‘guilty’, ‘willful’ [sic], and ‘disobedience’ connote actions that are deliberate, intentional or so reckless as to be, in effect, intentional.” [emphasis supplied]

[74] The principle that a finding of just cause cannot be equated with a finding of “wilful misconduct, disobedience or wilful neglect of duty” was also confirmed by the Manitoba Court of Appeal in considering very similar legislation: Convergys Customer Management Inc. v. Luba [2005] M.J. No. 51, 2005 MBCA 29, para. 32.

[75] Given the evidence that I reviewed earlier, and the findings of fact that I have made, I find that Cummings’ intentional misrepresentation of the size of the GLK’s brake pads and the necessity for their replacement satisfies the above-noted “wilful misconduct” exception and thereby, disentitles him to termination pay and severance pay.

[76] If I had found that Cummings were entitled to severance pay and termination pay, then I would have awarded him damages based on nine weeks of severance pay and eight weeks of termination pay.

CONCLUSIONS

[77] I dismiss Cummings’ action.

[78] MBB shall deliver its written costs submissions, not to exceed five pages in length exclusive of a Bill of Costs and any settlement offers, within one week of today’s date. Cummings shall have two weeks from today’s date to provide its costs submissions on the same terms.

Mr. Justice M. D. Faieta

Released: April 6, 2017

COURT FILE NO.: CV-15-527180 DATE: 20170406 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER CUMMINGS Plaintiff – and – QUANTUM AUTOMOTIVE GROUP INC. Defendants

REASONS FOR DECISION Mr. Justice M. D. Faieta Released: April 6, 2017