Court File and Parties

COURT FILE NO.: CV-12-470663 DATE: 20170207 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Chhina, Plaintiff – and – Commercial Spring & Tool Company Limited, Defendant

Counsel: Howard Markowitz, for the Plaintiff Maurice J. Neiirnck, for the Defendant

HEARD: September 19 – 23, 2016

POLLAK J.

Reasons for Judgment

[1] The Plaintiff, Mr. Chhina, claims that he was dismissed from his employment by the Defendant, Commercial Spring & Tool Company Limited (“Commercial Spring”). He claims that he was given a leave of absence to administer his father’s estate in India, and that when he returned, Commercial Spring failed to call him back to work. His employer, the Defendant, defends this action by alleging that Mr. Chhina quit his employment and therefore there was no termination of employment.

[2] Although there was a lot of conflicting evidence during the trial, this Court is assisted by facts and evidence that are accepted, agreed to, or have not been challenged or disputed by the opposite party. This key evidence allows me to resolve the important issues in this case without having to repeat all the evidence presented at trial. Counsel for the Plaintiff emphasized that this Court does not have to conclude that any witness lied, but that it could be found that the parties have different views regarding the effect of their actions.

[3] The theory of the Plaintiff’s case is that the burden of proof on the important issues in this trial is on the employer. It is also the employer who was responsible for clarifying any misunderstanding that may have existed between the parties.

[4] The Defendant accepts that they have the onus of establishing that the Plaintiff resigned. The Defendant submits that there was no misunderstanding between the parties: all parties understood Mr. Chhina had quit. The company’s vice president, Mr. Gill, provided the key evidence relied on by the Defendant. Specifically, Mr. Gill gave evidence that the company president Mr. Martinitz told him, in Mr. Chhina's presence on January 22, 2010, that Mr. Chhina had "quit" and to “deal with it”. This evidence was not challenged or altered on cross-examination, or by any other evidence at trial. Mr. Gill’s evidence of his instructions to Mr. Martinitz that Mr. Chhina had quit and to prepare Mr. Chhina's Record of Employment was also unchallenged and uncontradicted.

[5] The Defendant submits that Mr. Chhina’s resignation was not involuntary, but a planned and deliberate decision on his part. Accordingly, all the jurisprudence relied on by Mr. Chhina with respect to spontaneous, ill-considered, health-related, involuntary, rash or misunderstood resignations is distinguishable from and inapplicable to this case. For the reasons that follow, I agree.

Did Mr. Chhina quit his employment on January 22, 2010?

[6] The Defendant relies on the following evidence in addition to the key piece of evidence I have referred to above:

• (a) Mr. Chhina’s Record of Employment contains the letter “E” in Box 16, which means that he quit. If he had requested and been given a leave of absence, the letter "N" for leave of absence would have instead been inserted in the Record of Employment.
• (b) Mr. Gill, Mr. White and Mr. Martinitz gave clear evidence that it was Commercial Spring’s policy that vacation pay be paid during the first week of July of every year. The only exception was if the employee quit. In this case, vacation pay was paid to Mr. Chhina when he stopped working for Commercial Spring on January 22, 2010. Mr. Chhina admits receiving the vacation pay. He must have known that it was being paid because he had quit, as there was no other possible reason for the payment of the vacation pay.
• (c) There was no reason for Commercial Spring to sinisterly try and document Mr. Chhina's departure as a resignation, instead of as a leave of absence. This is because of the good relationship between Mr. Chhina and Commercial Spring, evidenced by the goodwill $10,000.00 loan on November 20, 2009, for which payment had not been demanded. If Mr. Chhina had been given a leave of absence, he would not have been treated as having "quit". In the context of the overall situation including the relationship between the parties, it is illogical to conclude that Commercial Spring mistreated Mr. Chhina by taking the position he had quit had he been truly given a leave of absence (which he was not).
• (d) Commercial Spring's other actions support the argument that Mr. Chhina resigned and was not been [sic] given a leave of absence. These include (i) the termination of his group health, dental and prescription benefits as of January 23, 2010, being the date after he quit (ii) the return of the corporate gas card that was being used by Mr. Chhina and (iii) the return and reassignment of the transponder that had been used by Mr. Chhina.
• (e) Commercial Spring requested the return of the corporate vehicle in March 2010. Commercial Spring argues they would have had no reason to do so if Mr. Chhina had been given a limited temporary leave of absence. In addition, Mr. Chhina's March 19, 2010, email at 2:42 a.m. wherein he states "[t]hank him for the use of the car" contradicts his evidence-in-chief that he had no use for the car and that he only retained it at the insistence of Mr. Martinitz.
• (f) Mr. Chhina claims he was given a leave of absence to administer his father’s estate. However, he indicated that Commercial Spring did not call him to monitor the status of the administration of his father’s estate. There was no interest on the part of Commercial Spring in finding out when Mr. Chhina would be returning to work. If Mr. Chhina had been given a limited leave of absence, there would, for practical purposes, have been follow-up on the part of Commercial Spring.
• (g) According to Mr. Chhina, Commercial Spring never asked Mr. Chhina any questions at all about the status of the administration of his father's estate and never asked him to return to work. Had Mr. Chhina not quit but been given a leave of absence, there would have been follow-up on the part of Commercial Spring. The fact there was no such follow-up and that Commercial Spring carried on without any communications at all with Mr. Chhina is proof that there was no leave of absence.

[7] In February 2011, the Defendant filed a claim in the Small Claims Court against the Plaintiff for repayment of $10,000 loaned to him by the Defendant. In his defence to the loan claim, Mr. Chhina did not allege that he had been wrongfully dismissed from employment. He pleaded:

“The Plaintiff and Defendant agreed that the Defendant would resign his position in January 2010, until he would be able to complete the administration of his father’s estate in India. This was negotiated between the Defendant and Frank Martinitz on behalf of the Plaintiff. It was also agreed that the Defendant would return to his position with the Plaintiff after his father’s estate was settled. The Defendant’s performance bonus remains invested with the Plaintiff pending the Defendant’s return to work.”

[8] The Defendant further submits that the Defence advanced by Mr. Chhina at the loan claim trial was inconsistent with any intention of Mr. Chhina to return to work.

[9] Further, to prove that Mr. Chhina's departure from work on January 22, 2010 was not a spontaneous, ill-thought, or a health related issue, in addition to the key evidence I have already referred to above, the Defendant relies on Mr. Gill’s evidence about his conversation with Mr. Chhina in early January 2010 and Mr. Chhina’s follow-up conversation with Mr. Martinitz.

[10] In addition, there is evidence is that Mr. Chhina registered the Chhina & Associates partnership on January 12, 2010. The Defendant submits that this is consistent with the Plaintiff’s intention to quit his job with Commercial Spring for other endeavors.

[11] The Plaintiff counters all of the above-noted evidence and relies on the following:

• (a) No written letter of resignation tendered;
• (b) Mr. Chhina had given a written resignation letter on previously attempting to resign in December 2006;
• (c) Unclear when resignation was officially tendered;
• (d) Unclear as effective date any such resignation would take place;
• (e) No timely change in organizational chart;
• (f) Personal effects left in Mr. Chhina's office;
• (g) No reference letter requested after 21.25+ years;
• (h) Mr. Gill didn't even consider the possibility of company announcement that Mr. Chhina had resigned;
• (i) No questioning as to why Mr. Chhina was suddenly resigning after 21.25-years, as happened back in December 2006;
• (j) No discussion about potential accommodations so that Mr. Chhina wouldn't have to resign, as happened back in December 2006;
• (k) For some 2-weeks in January 2010, Mr. Gill never discussed Mr. Chhina's resignation with Mr. Martinitz;
• (l) Mr. Chhina claimed dental benefits post-separation;
• (m) Left Mr. Chhina with company's luxury Acura vehicle post-separation;
• (n) No company letter confirming Mr. Chhina's resignation;
• (o) No loan repayment demand for months following alleged resignation;
• (p) No claw back from Mr. Chhina's business expense reimbursement cheque on alleged resignation;
• (q) None of Mr. Chhina's staff asked Mr. Gill about Mr. Chhina's resignation;
• (r) Mr. Chhina's subordinates understood that Mr. Chhina hadn't resigned;
• (s) Mr. Chhina left subordinates his personal contact number to assist with any operational issues on leaving;
• (t) Mr. Chhina did in fact assist his subordinates with some troubleshooting after leaving;
• (u) Mr. Gill not surprised that Mr. Chhina was looking into potential India business opportunities for the company;
• (v) Record of Employment was silent as to whether Mr. Chhina was returning or not;
• (w) Record of Employment made no mention of Mr. Chhina's employment status in the comments section;
• (x) Never unemployed before, and therefore not obvious as to significance of code-"E" on the ROE;
• (y) Even less obvious where not provided with the backside glossary as to what those code letters represented;
• (z) Couldn't have received an original ROE sheet (with backside glossary), because handwritten changes would have transferred onto government copy below. Therefore, must have been a photocopy, consistent with Mr. Chhina's testimony;
• (aa) Not unreasonable assumption that vacation paid out because taking an extended leave, having no experience in having taken such leaves before;
• (bb) Reasonable assumption that ROE issued due to an interruption of earnings, as opposed to resignation;
• (cc) Small Claims Court defence paragraph #7 referenced a temporary, rather than permanent form of resignation;
• (dd) Mr. Martinitz seen as a generous employer, having loaned $10,000 of his own initiative;
• (ee) That $10,000 loan was verbal, not involving any written agreement.
• (ff) Mr. Martinitz would have accommodated a leave of absence if asked.
• (gg) Mr. Chhina's subordinates thought he was returning when Peter came by on August 2, 2010;
• (hh) Mr. Gill would have entertained Mr. Chhina's return prior to February 2010 Small Claims Court lawsuit commenced;
• (ii) Mr. Martinitz's reason for not wanting Mr. Chhina's return was because he didn't like Mr. Chhina's alleged leaving without any notice, as opposed to a position not being available for Mr. Chhina's return;
• (jj) Mr. Chhina attempting to contact Mr. Martinitz throughout summer/Fall 2010 - including March 19, 2010 e-mail asking Mr. Gill to say hi to Mr. Martinitz, personal plant visit on August 2, 2010, and December 2010 dropping off bottles of wine.;
• (kk) Mr. Chhina had no alternative employment lined up, left on positive terms, and needed a job/money to support his family. Why wouldn't he want to try returning to his past employer of 21.25+ years?
• (ll) Mr. Chhina knew that Glen Cameron was friendly with Mr. Gill and by 2015 already in heavy litigation over the issue as to whether Mr. Chhina had resigned or taken a leave of absence.

[12] There is no evidence of a request to return to work by Mr. Chhina. The only evidence is Mr. Chhina’s evidence of his unsuccessful attempts to reach Mr. Martinitz by phone. Mr. Chhina claims that he realized that he would not be returning to work when he was notified of the loan claim against him by the Defendant.

[13] I am of the view that the unchallenged, uncontradicted evidence of Mr. Gill that I have referred to above supports a finding that Mr. Chhina did advise the Defendant that he was resigning his employment in January of 2010. It is not logical that Mr. Chhina would not have objected or said something to deny his resignation when Mr. Martinez told Mr. Gill in his presence that he had resigned. I emphasize that this evidence was not challenged. This evidence and Mr. Chhina’s defence to the loan litigation which I have referred to above, where he pleaded that “he resigned his position” is consistent with the fact that he did resign from his employment in January 2010. He did not plead that the Defendant had any obligation to re-employ him or that the Defendant made him a promise to re-employ him or somehow misrepresented to him that if he did resign he would be re-hired.

[14] I find that the evidence is consistent with this finding. On the basis of the above, I dismiss the Plaintiff’s claim.

Costs

[15] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants’ submissions are to be delivered by 12:00 p.m. on February 13, 2017, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on February 21, 2017. Any reply submissions are to be delivered by 12:00 p.m. on February 28, 2017.

Pollak J. Released: February 7, 2017