Court File and Parties
COURT FILE NO.: CV-15-0358-00 DATE: 2017-06-20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
THOMAS DAVID NUTTALL Plaintiff
Counsel: Jordan Lester, for the Plaintiff
- and -
KENORA DISTRICT SERVICES BOARD Defendant
Counsel: Allan D. McKitrick, for the Defendant
HEARD: May 12, 2017 at Thunder Bay, Ontario BEFORE: Madam Justice B. R. Warkentin, R.S.J.
Reasons On Motion for Summary Judgment
[1] The defendant seeks an order dismissing the plaintiff’s claim pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 alleging that there is no genuine issue requiring a trial. If the claim is not dismissed, the defendant seeks an order transferring this proceeding from Thunder Bay to Kenora.
Background
[2] The plaintiff, Thomas David Nuttall is 52 years old and currently resides in Dryden, Ontario. Mr. Nuttall was employed by the defendant, Kenora District Services Board (KDSB) as the Maintenance Repair Building Custodian at Patricia Plaza in Sioux Lookout, Ontario for just over 9 years from November 2005 until his employment was terminated for cause on December 19, 2014.
[3] Mr. Nuttall commenced this action for wrongful dismissal shortly thereafter in which he claims to have been wrongfully and/or constructively dismissed and that KDSB, violated his rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
[4] KDSB is a publicly-funded services administration board for the District of Kenora, with its head office located in Dryden, Ontario. KDSB owns and operates Patricia Plaza, a housing complex where Mr. Nuttall was employed and where he resided.
[5] KDSB alleges that they were justified in terminating Mr. Nuttall’s employment because of an assault in the fall of 2014, to which he admitted, against his former girlfriend in his apartment at the Patricia Plaza. There had been a history of aggressive conduct by the former girlfriend against Mr. Nuttall such that in 2011 a “no trespass” order had been issued against the girlfriend regarding the Patricia Plaza. Mr. Nuttall eventually received a conditional discharge for this assault.
[6] KDSB relied upon an internal investigation it conducted regarding the November 2014 assault as the basis upon which they terminated Mr. Nuttall’s employment for cause. During its investigation, KDSB claimed to have learned for the first time of another assault committed by Mr. Nuttall, this time against the daughter of the same former girlfriend that had occurred in 2013 while Mr. Nuttall was on leave from his employment receiving treatment for cancer. Mr. Nuttall received an absolute discharge for that assault.
[7] KDSB described Mr. Nuttall’s conduct as a serious breach of KDSB policies; prejudicial to KDSB’s operation and caused harm to those parties they serve and to KDSB’s reputation.
[8] KDSB informed Mr. Nuttall that as a result of his conduct they had lost their trust in him to perform his duties without causing harm to their other residents and KDSB’s reputation and they considered him to be a risk to their other residents because of his access to the buildings in which they live.
[9] Mr. Nuttall alleges the investigation was flawed and unfair and that KDSB did not consider any of the mitigating factors related to the assault or to Mr. Nuttall’s personal issues when making the decision to terminate his employment.
[10] In support of his allegations, Mr. Nuttall’s counsel noted that Mr. Nuttall is developmentally challenged with extremely low verbal processing and comprehension abilities and has been diagnosed with an intellectual disability. Mr. Nuttall alleges that KDSB was aware of his disability and that he was illiterate; claims KDSB denies.
[11] In 2012 through 2014 Mr. Nuttall was receiving chemotherapy treatment for cancer during which time KDSB provided him with certain employment accommodation. Mr. Nuttall has alleged in his statement of claim that when he returned to his employment in July 2014, he was unable to perform his duties at the same pace as prior to his cancer treatment due to low white blood cell counts, which was communicated to his immediate supervisor. It is Mr. Nuttall’s allegation that the incident with his former girlfriend in November 2014 was used as an excuse to terminate his employment rather than having to accommodate him due to his medical condition.
Is there a genuine issue requiring a trial?
[12] Rule 20.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows a party, to move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the Statement of Claim.
[13] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the applicable test as follows:
(2) The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
[14] In the Supreme Court of Canada case of Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 SCR 87 at para. 68 ("Hryniak"), the court directed judges to grant summary judgment motions whenever there is no genuine issue requiring a trial.
[15] When considering a motion for summary judgment the court may conduct some weighing of evidence; evaluate the credibility of a deponent and draw any reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial (Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).
[16] If, when considering the evidence on a motion for summary judgment, the judge is able to reach a fair and just determination on the merits, summary judgment must be granted, provided the evidence on the motion provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. (Hryniak at paras. 4 and 49.)
[17] The motion record utilized on this motion for summary judgment contained a significant body of evidence. After reviewing that evidence, I am unable to draw the conclusions that KDSB seeks on the record in this motion. The evidence does not permit me to make the findings of fact that I have been asked to find.
[18] For example, counsel for KDSB claimed that KDSB had no advance knowledge of the 2013 assault when it appeared from its own record that this information was within their knowledge.
[19] Similarly, KDSB claimed no knowledge of Mr. Nuttall’s developmental limitations when they did not provide evidence from Mr. Nuttall’s direct supervisor regarding his knowledge of Mr. Nuttall’s abilities. In light of the medical evidence supporting Mr. Nuttall’s intellectual limitations, it would be difficult to comprehend that KDSB was unaware of these limitations in light of his 9 year employment relationship with KDSB.
[20] If KDSB was aware of Mr. Nuttall’s limitations, then the issue of whether or not the investigation into the allegations against Mr. Nuttall’s conduct in the assault in the fall of 2014 as a basis for terminating his employment was flawed is a genuine issue requiring a trial as is the question of whether or not Mr. Nuttall’s Human Rights were violated.
[21] The jurisprudence provided by both counsel in their facta instruct the court to consider evidence of mitigating factors similar to those identified by Mr. Nuttall when ascertaining whether or not termination for cause is an appropriate sanction. Therefore I am unable to apply the law to the facts, when those facts are in dispute.
[22] These issues cannot be resolved on this motion for summary judgment and a trial is therefore required. The defendant’s motion for summary judgment is dismissed with costs to the plaintiff.
Should the venue of this action be changed from Thunder Bay to Kenora?
[23] KDSB seeks to move this action from Thunder Bay to Kenora on the basis that litigation that directly affects a community should be heard in the court that serves that community.
[24] Both Thunder Bay and Kenora are in the same judicial district. Mr. Nuttall’s employment was in Sioux Lookout and the head office of KDSB is in Dryden, Ontario.
[25] Both Sioux Lookout and Dryden are geographically closer to Kenora and therefore the witnesses who reside in Sioux Lookout and Dryden would have a shorter distance to travel when called at trial than if the proceeding remains in Thunder Bay, however, they must still travel to attend court.
[26] Rule 13.1.02(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the basis upon which a proceeding may be transferred to another county from the one where the action was commenced.
[27] In the 2015 case of Telus Communications Co. v. Canada (Minister of Public Works and Government Services), 2015 ONSC 1345 at para. 13, Justice Himel outlined the basis upon which a change of venue would be ordered by the court pursuant to Rule 13.1.02(2)(b) as follows:
A plaintiff has a prima facie right to select a venue for an Action. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion to change the venue. The onus is on the moving party to show that it is in the “interests of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2)(b). The court is to consider a “holistic” application of the factors outlined in rule to the specific facts of the case [citations omitted]. No one factor is more important than another. Rather, the court is to look at all the factors and balance them in order to decide whether a transfer is “desirable in the interests of justice”. The moving party must show that the proposed place of trial is not only better, but is significantly better, than the plaintiff’s choice of trial location. [citations omitted]
[28] Having considered the submissions of the parties and the principles set out in Rule 13.1.02(2)(b), I am not satisfied that the choice to have the matter proceed in Thunder Bay is an unreasonable one. The factors cited by counsel for the defence for moving the matter to Kenora do not, in my view outweigh the plaintiff’s prima facie right to select the venue for the action, when none of those events occurred in Kenora itself.
[29] The defendant’s motion to change the venue is therefore also dismissed with costs to the plaintiff.
Costs
[30] If the parties are not able to resolve the issue of costs they shall provide written submissions on costs within 30 days of the date of this decision. The submissions, not including Bills of Costs, shall not exceed 4 pages.