COURT FILE NO.: CV-15-528995
DATE: 20180510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YING (MS. GU) GU
Plaintiff
– and –
HABITAT FOR HUMANITY GREATER TORONTO AREA INC. and
HABITAT FOR HUMANITY CANADA INC. and GRANT THORNTON LLP, NATIONAL TORONTO
Defendants
Andrew Ostrom, for the Plaintiff
Julia L. Lefebvre, for the Defendants
HEARD: February 9, 2018 and March 19, 2018
Koehnen J.
[1] Ying (Sissy) Gu holds degrees in engineering and economics from Chinese universities. Given that her educational and work experience might not be recognized by Canadian employers, she accepted an entry level position with Habitat Toronto as a junior administrative assistant in 1999. Over time she advanced to positions of greater responsibility and, by 2014, was its Director Finance and Administration.
[2] In April 2014 Habitat Toronto merged with three other Habitat for Humanity chapters in the greater Toronto area to form Habitat GTA. Ms. Gu became the Director Finance and Administration of the newly merged entity.
[3] Habitat GTA and its predecessors are registered charities whose mission is to help low income families break the cycle of poverty through affordable homeownership.
[4] As a result of the merger, Ms. Gu’s position was re-defined as Controller. The Controller position required a professional accounting designation. Ms. Gu had no formal accounting qualifications. As a result, her employment was terminated on June 5, 2014, along with two other staff members.
[5] Ms. Gu brings this claim against Habitat GTA and its affiliate Habitat for Humanity Canada Inc. for a variety of damages arising out of her termination. She also brings a claim for discrimination. The discrimination arises out of comments that her superior, the CFO of Habitat Toronto and Habitat GTA, is alleged to have made to her in 2009 and 2014. In addition, Ms. Gu claims against Grant Thornton LLP, the auditor of Habitat GTA for intentional infliction of emotional distress and defamation.
[6] The defendants bring this motion for summary judgment. The issues that the motion requires the court to address and a short conclusory statement of the result I have reached are as follows:
(i) Is this an action suitable for summary judgment? Yes.
(ii) Has Ms. Gu made out a claim against Habitat Canada? No.
(iii) Has Ms. Gu made out a claim against Grant Thornton? No.
(iv) What damages has Ms. Gu suffered as a result of her termination? Eighteen months’ notice.
(v) Has Ms. Gu made out a claim for discrimination under the Ontario Human Rights Code, RSO 1990, c H.19? No.
(vi) Has Ms. Gu made out her claim for intentional infliction of emotional distress? No.
I. Is This Action Suitable for Summary Judgment?
[7] I have concluded that this is a matter appropriate for summary judgment on all of the issues set out above.
[8] Ms. Gu objects to proceeding with summary judgment on two grounds. She submits that a credibility issue arises out of her discrimination claim that requires a trial because she and Mr. Johnson have set out contradictory evidence in their affidavits. That, however, can be remedied by having Ms. Gu and Mr. Johnson cross-examined before me in court pursuant to rule 20.04 (2.2) which I have done. Apart from the issue of credibility, Ms. Gu submits that more can be found out through the trial process than through a motion for summary judgment. She did not, however, state either generally or specifically, what additional information could be obtained through the trial process that was necessary for her case that could not be adduced on a motion for summary judgment. It is well-established that a party must put its best foot forward on a motion for summary judgment and cannot rely on the possibility that more information might become available through the trial process.
[9] In my view, this is a classic situation in which a motion for summary judgment is appropriate. The fundamental issue concerns the notice period to which Ms. Gu was entitled upon her termination.
[10] Habitat GTA paid Ms. Gu benefits under the Employment Standards Act, 2000, S.O. 2000, c. 41 upon termination but concedes that she should receive additional notice. Habitat GTA submits that she should receive 13 to 14 months’ notice. Ms. Gu asserts that she should receive 22 months’ notice.
[11] The difference of eight months on Ms. Gu’s final salary of $80,000 is one with respect to which a motion for summary judgment is a far more proportionate remedy than is a full trial. Proceeding to a full trial would easily equal or exceed the amount at issue concerning the notice period: Larry Patterson v. IBM Canada Limited, 2017 ONSC 1264, at para. 3. Notice is fundamentally a legal question that can be resolved on a motion for summary judgment.
[12] While the discrimination claim adds an additional layer of analysis, the issue of credibility between Ms. Gu and Mr. Johnson concerns two conversations. That is a narrow issue that can be resolved with viva voce cross-examinations in court. Although the parties were unrestricted in their cross-examinations, they took approximately 15 minutes each to complete.
[13] The Rules of Civil Procedure require that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial. Here, there is no genuine issue that requires a trial. Any differences between the parties can be resolved appropriately and proportionately on a motion for summary judgment.
II. Has Ms. Gu Made Out A Claim Against Habitat Canada?
[14] Ms. Gu submits that the nature of the relationship between Habitat Canada and Habitat GTA engages vicarious liability on the part of Habitat Canada. I cannot agree.
[15] Habitat Canada and Habitat GTA are separate corporate entities with independent Boards of Directors. Although Habitat Canada and Habitat GTA have entered into an Affiliation Agreement that permits the use of the Habitat for Humanity trademark and copyrighted materials, it also makes clear that the two organizations shall remain separate and distinct corporate entities. Habitat Canada has no jurisdiction over employment matters at Habitat GTA or its predecessor, Habitat Toronto.
[16] Habitat Canada was not consulted about the decision to restructure Ms. Gu’s position or terminate her employment. Ms. Gu has never been an employee of Habitat Canada. The only interaction Habitat Canada had with Habitat GTA with respect to Ms. Gu’s termination, was to deliver a “milestone” award to Ms. Gu on an expedited basis before her termination to recognize her for 15 years of service.
[17] Ms. Gu points to aspects of the relationship between Habitat Canada and Habitat GTA that require Habitat GTA to maintain its status as an affiliate member of Habitat Canada in good standing pursuant to Habitat Canada’s bylaws and to Habitat Canada’s power to evaluate the operations of Habitat GTA. Those additional features of the relationship between Habitat Canada and Habitat GTA do not make Habitat Canada responsible for the employment decisions of Habitat GTA. There is no suggestion that Habitat Canada played any role in the discrimination allegations that Ms. Gu raises or in the failure to investigate those allegations.
[18] Given that Ms. Gu has failed to make out any claim against Habitat Canada, the claim against it is dismissed.
III. Has Ms. Gu Made Out A Claim Against Grant Thornton LLP?
[19] Ms. Gu’s statement of claim alleges that Grant Thornton provided defamatory information about Ms. Gu and engaged in discriminatory practices against her. In addition to damages for defamation and discrimination, Ms. Gu also appears to claim damages for mental distress against Grant Thornton arising out of this conduct.
[20] Ms. Gu’s materials on the summary judgment motion do not reveal any particulars or evidence of discrimination by Grant Thornton. As a result, I dismiss the discrimination claim against Grant Thornton.
[21] The defamation claim arises out of a meeting between the Audit, Risk and Finance Committee of Habitat GTA and Grant Thornton on May 12, 2014.
[22] During the meeting, Grant Thornton explained that an additional 100 hours were spent on the audit for the previous fiscal year-end. In discussing the extra time, Grant Thornton explained that the internal accounting resources of Habitat Toronto/GTA were not at the level that an auditor would normally expect, given the size of the organization. The amalgamation would only exacerbate that issue. During the course of the discussion Grant Thornton expressed its view that Habitat GTA would be better served with someone with a deeper accounting background than Ms. Gu had. Grant Thornton did not express any view about whether Ms. Gu should or should not be terminated. If and how any concerns about the level of resources in the accounting department were addressed was up to Habitat GTA.
[23] In response to the concerns that Grant Thornton expressed, the CEO of Habitat GTA indicated that plans were already underway to terminate Ms. Gu’s employment.
[24] Although Ms. Gu alleges she has suffered anxiety, headaches and depression after her termination, there is no evidence that this distress was caused by the statements of Grant Thornton as opposed to the fact that her employment was terminated. Indeed, during her viva voce cross-examination before me, Ms. Gu admitted that she also believed that Habitat Toronto and Habitat GTA had inadequate internal accounting resources.
[25] To be defamatory, a communication must tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Color Your World v CBC (1998), 1998 CanLII 1983 (ON CA), 38 OR (3d) 97, 1998 CarswellOnt 535 (CA) per Abella J.A., at para. 14, leave to appeal dismissed [1998] S.C.C.A. No. 170. A statement that Ms. Gu’s technical skills may not be commensurate with those required of an organization of the size of Habitat GTA is not one which, in my view, would lower Ms. Gu’s reputation in the eyes of a reasonable person. Ms. Gu is not an accountant. She was hired by Habitat GTA when it was much smaller. As organizations grow, they require increased levels of technical expertise and may require staff with greater professional credentials than would a smaller organization.
[26] If I am wrong in this and the message communicated by Grant Thornton was in fact defamatory, then in my view, Grant Thornton would be relieved of liability by the defences of justification (truth) and qualified privilege.
[27] The burden is on the defendant to establish the truth of the statements complained of: Bernstein v. Poon, 2015 ONSC 155, para. 97. Grant Thornton has met that burden.
[28] Grant Thornton expressed its view about the state of Habitat GTA’s internal resources. Those views were objectively verifiable. As a result of the merger, Habitat GTA incorporated the operations of Habitat Toronto, Habitat Brampton - Caledon and Habitat York Region. It had $46 million in assets on its balance sheet, building projects with a value in excess of $19 million, 120 employees and managed 270 mortgages. It planned to grow aggressively. Ms. Gu had no professional accounting background or credentials. A Grant Thornton representative has sworn an affidavit describing what occurred during the meeting. There is no evidence that the description of what occurred during the meeting was false. Grant Thornton expressed an opinion. There was no evidence that Grant Thornton did not honestly hold that opinion. In those circumstances, the statements Grant Thornton made meet the test for justification.
[29] Qualified privilege arises where the maker of the defamatory statement has an interest or duty to make it and the person to whom the statement is made has a corresponding interest or duty to receive it: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, para. 78
[30] Auditors have an interest in reporting to audit clients their impressions of accounting and auditing issues within the client’s organization. Audit clients have a corresponding interest in receiving such information from their auditors. This is especially true of charities which are stewards of monies received from others for specific charitable purposes. Given these mutual interests, Grant Thornton has made out the defence of qualified privilege.
[31] As a result of the foregoing, I would dismiss the claim against Grant Thornton in its entirety.
IV. Damages Resulting from Termination
[32] Ms. Gu claims damages arising from her termination on account of: reasonable notice, a bonus for 15 years of service, legal costs and vacation pay.
Reasonable Notice
[33] Ms. Gu had no written employment contract as a result of which the appropriate notice is governed by the criteria set out in Bardal v. Globe and Mail, 1960 CanLII 294 (Ont. H.C.).
[34] When Ms. Gu was terminated, she received payments as required under the Employment Standards Act. Habitat GTA acknowledges this is inadequate and submits that the appropriate notice is 13 to 14 months. Ms. Gu submits she is entitled to 22 months’ notice.
[35] The Bardal criteria include the plaintiff’s age at termination (46); length of service (15 years); salary ($79,600, retroactively adjusted to $80,794), character of employment (managerial at the time of termination) and the availability of similar employment with regard to the plaintiff’s experience, training and qualifications. The assessment of reasonable notice is an “art, not a science.” No factor is to be given disproportionate weight over another. However, the “character of employment” and salary are criteria of more limited value in the modern context: Larry Patterson, at para. 20.
[36] Although Ms. Gu had no accounting training, she advanced considerably within Habitat GTA. The lack of formal educational credentials may increase the notice period because an employee who lacks formal accreditation for a particular line of work may need more time to find a comparable position: Panimondo v. Shorewood Packaging Corporation, 2009 CanLII 16744 (ON SC), at para. 38; Lavinkas v. Jacques Whitford & Associates Ltd., 2005 CanLII 63777 (ON SC), at para. 102. In addition, long-term employment within a narrow field may leave an employee less marketable than otherwise: Panimondo at para. 3. Ms. Gu’s only job since immigrating to Canada was her position with Habitat GTA.
[37] Habitat GTA has provided a variety of cases in which employees of between ages 43 and 50 with roughly equivalent service time to Ms. Gu have been awarded notice of 12 to 17 months.
[38] Ms. Gu has provided a number of cases, the two most relevant of which are: Caers v. Usborne & Hibbert Mutual Fire Insurance Co., [2000] O.J. No. 5034 and Parte v. Rogers Cablesystems Ltd., [1992] A.J. No. 1107, upheld on appeal at 1993 ABCA 311.
[39] In Caers, a 52-year-old secretary - manager with 13 years of service and without formal qualifications was awarded 18 months’ notice. In Parte, a 49-year-old controller with 15 years’ service was entitled to 18 months’ notice.
[40] The situation in which Ms. Gu found herself is far more similar to that of the employees in Caers and Parte than it is to the cases submitted by Habitat GTA. Her age, length of service, lack of formal qualifications coupled with limited Canadian employment experience due to her long term service with Habitat make the 18 month notice awarded in Parte and Caers appropriate for Ms. Gu.
[41] Habitat GTA submits that Ms. Gu’s notice should be reduced for failure to mitigate properly. In support of this submission, Habitat GTA notes that it had encouraged Ms. Gu to apply for a position as a church administrator with a well-established church in North Toronto and offered to make an introduction. Ms. Gu declined to pursue that position because she believed Mr. Johnson was a member of the church. He had in fact left that church several years earlier. In addition, Habitat GTA submits that many of the positions for which Ms. Gu applied are ones that required professional accounting or other financial designations.
[42] I do not accept that Ms. Gu has failed to mitigate her damages properly.
[43] The employer bears the burden of proving that a discharged employee has failed to mitigate. The onus is typically a high one. The employer must show not only that the employee failed to take reasonable steps to find alternate employment, but also that, had the employee taken such steps, she would, on a balance of probabilities, have obtained alternate employment. The employee is held to a standard of reasonableness, not perfection: Fulmer v. Nordstrong Equipment Limited, 2017 ONSC 5529, at paras. 30, 32-33; Lavinkas v. Jacques Whitford & Associates Ltd., 2005 CanLII 63777 (ON SC), at paras. 109 -115; Skov v. G&K Services Canada Inc., 2017 ONSC 6752, at para. 41.
[44] Habitat GTA has not met that burden. On the contrary, Ms. Gu has demonstrated that she applied for several hundred positions, none of which has led to further employment.
[45] I therefore award Ms. Gu a total of 18 months’ notice to be calculated based on an annual salary of $80,794 plus benefits.
[46] The award of 18 months’ notice plus benefits is intended to be a gross award. As a result, the parties will have to deduct from that, the sums that have already been paid to Ms. Gu under the Employment Standards Act.
(a) Fifteen Year Service Bonus
[47] Ms. Gu claims a bonus of $1,500 for having reached her 15th anniversary at Habitat GTA. Ms. Gu submits that it was Habitat Toronto/GTA’s policy to provide bonuses to employees at five-year intervals. Ms. Gu received such a bonus on her 10th anniversary. The bonuses were discretionary and approved by the then CEO. Under the current CEO, no five or ten year bonuses have been paid out. In my view Ms. Gu has not established that she was entitled to a bonus on her 15-year anniversary. I therefore disallow that claim.
(c) Legal Costs
[48] As part of the discussion surrounding her termination, Ms. Gu was promised $500 to obtain legal advice, which she was never paid. Ms. Gu is entitled to a payment of $500 in this regard.
(d) Vacation Pay
[49] The parties agree that Ms. Gu is entitled to $3,024.66 on account of unused vacation pay. Ms. Gu is entitled to judgment in that amount.
V. The Discrimination Claim
[50] Ms. Gu claims damages for both alleged discrimination and the failure to investigate the discrimination.
(a) Discrimination Allegations
[51] Ms. Gu bases her discrimination claim on two specific acts: (i) the failure to pay her a bonus in 2014 (different from the 15 year service bonus); and (ii) the termination of her employment.
[52] Ms. Gu supports her claims of discrimination by relying on two incidents.
[53] The first occurred in 2009 shortly after her new superior, Mr. Johnson, arrived at Habitat Toronto. Ms. Gu alleges that Mr. Johnson told her that he was considering terminating Luisa Manabat (“Ms. Manabat”), the accounting clerk who reported to Ms. Gu. Ms. Manabat is a Filipino woman who was approximately fifty years old. Mr. Johnson allegedly said that: Ms. Manabat lacked intelligence and had a “weird” accent which he had trouble understanding; Ms. Manabat was “old,” they should not bother trying to “teach an old dog new tricks;” and that Filipinos are “only good at doing housework.”
[54] It is not clear whether Ms. Gu objected to these comments at the time. Her affidavit suggest that she did not raise any objections with Mr. Johnson either. On the motion, however, she suggested that she was terminated in 2014 because she objected to Mr. Johnson’s comments in 2009. It is clear that she did not raise any concerns with anyone else at Habitat Toronto or with any other third party.
[55] The second incident occurred in March 2014 when, Ms. Gu alleges, Mr. Johnson again raised the possibility of terminating Ms. Manabat. Ms. Gu expressed strong reservations. Mr. Johnson is then alleged to have said that neither Ms. Manabat nor Ms. Gu were local to Toronto, neither had been educated in an English-speaking country and that he had difficulty understanding Ms. Gu’s accent and the manner in which she expressed herself in English.
[56] Ms. Manabat’s employment was never terminated. She remained an employee of Habitat GTA at the time the motion was argued.
[57] Mr. Johnson denies, in the strongest terms, making any discriminatory comments and finds racist or discriminatory sentiments deeply offensive.
[58] Ms. Gu does not allege any other incidents of discrimination by Mr. Johnson.
[59] Ms. Gu relies on these incidents to support her allegations that the failure to pay her a bonus in 2014 and the termination were discriminatory. She does not allege that the work environment was poisoned as a result of the alleged comments.
The Legal Test Applicable to Discrimination Claims
[60] Neither party made any submissions on the legal test applicable to discrimination claims either in their factums or during closing argument. The briefs of authorities of both parties, however, contain cases which refer to and explain the appropriate legal test. See for example: Walton Enterprises v. Lombardi, 2013 ONSC 4218 at para. 27-25; Sears v. Honda of Canada Mfg., 2014 HRTO 45 at para. 20-22 and Maracle v. Free Flow Petroleum 2017 HRTO 437 at para. 45.
[61] The law requires the applicant to demonstrate a prima facie case of discrimination. To demonstrate a prima facie case of discrimination the applicant must show she has a characteristic protected from discrimination under the code, she has experienced an adverse impact and that the protected characteristic was a factor in the adverse impact.
[62] A prima facie case of discrimination is made out if the applicant introduces evidence to support her allegations which, if believed, would be sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent: Sears at para. 20. Relatively little affirmative evidence is required before such an inference of discrimination is permitted: Peel Law Association v. Pieters 2013 ONCA 396 at para. 73.
[63] Once a case of prima facie discrimination has been established, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory.
[64] I turn then to the two specific acts of discrimination that Ms. Gu alleges.
(i) The 2014 Bonus
[65] Ms. Gu alleges that 10 other managers at Habitat GTA were paid a bonus in 2014 but she was not. She relies on a memo dated October 2014 in support of that allegation. The memo indicates that 10 employees of Habitat GTA were identified for “one time compensation adjustments” after the amalgamation. Six of the 10 were from Brampton, one of the new entities that was merged to form Habitat GTA. A one-time salary adjustment to equalize salaries across a newly merged entity is quite different than a discriminatory award of bonuses from which Ms. Gu was excluded. The salary adjustment is an effort to achieve equality within an organization, not to discriminate.
[66] In my view, Ms. Gu has not made out a prima facie case that there has been discrimination in the award of a 2014 bonus or salary adjustment.
(ii) The Termination
[67] I am prepared to accept that Ms. Gu as made out a prima facie case of discrimination with respect to the termination itself on the basis of the comments that she alleges Mr. Johnson made. The burden then shifts to at Habitat GTA to demonstrate that the termination was not motivated by any discriminatory grounds.
[68] In my view, Habitat GTA has done so.
[69] There was ample evidence that the depth of expertise within the accounting department of Habitat Toronto and Habitat GTA was an ongoing issue. Before Mr. Johnson was hired, Ms. Gu’s superiors had suggested that she obtain formal accounting qualifications. Ms. Gu did not do so. While I am not critical of Ms. Gu in this regard, the reality remained that she lacked formal accreditation. The employment situation of an individual without formal training and accreditation remains vulnerable, especially as her employer grows and requires deeper skill sets.
[70] Issues had been raised about Ms. Gu’s skill set on numerous occasions in the past. Her communication skills were commented on unfavourably and issues had arisen in previous audits that were ascribed to a lack of accounting expertise within Habitat Toronto/Habitat GTA. As noted earlier, Ms. Gu agreed that Habitat Toronto/Habitat GTA had inadequate internal accounting resources.
[71] In 2014, the external auditor of Habitat GTA expressed the view that the internal accounting resources of Habitat GTA were inadequate for an organization of its size. That issue would only become more acute going forward in light of the merger of habitat Toronto with other regional Habitat entities to form Habitat GTA. The issue became even more acute given that habitat GTA planned to grow aggressively.
[72] It was in those circumstances that habitat GTA decided to terminate Ms. Gu’s employment. She was not the only employee terminated. Two other employees, both middle-aged white males, were terminated as a result of rationalization arising out of the merger.
[73] I am satisfied that, based on these objective and uncontested circumstances, Habitat GTA has rebutted any inference of discrimination arising out of the reasons for terminating Ms. Gu.
[74] As noted earlier, both Ms. Gu and Mr. Johnson were cross-examined before me on their respective affidavits. During argument, the parties devoted all of their time to persuading me about whether Mr. Johnson did or did not make the comments he is alleged to have made.
[75] Strictly speaking it is not necessary to determine whether Mr. Johnson did or did not make those comments. Even if Mr. Johnson did make the comments, in my view, Habitat GTA would still have rebutted the inference of discrimination based on the objective evidence concerning the need for deeper accounting skills within habitat GTA.
[76] That said, I will nevertheless address the credibility/reliability issues because, if Mr. Johnson did in fact harbor those views, they may have led him to provide input adverse to Ms. Gu when Habitat GTA was deciding who to retain and who to terminate.
[77] After seeing both Ms. Gu and Mr. Johnson cross-examined I was left with concerns about the nature and quality of Ms. Gu’s evidence.
[78] I have already noted that what Ms. Gu alleged was a discriminatory payment of a bonus was not a bonus but a one-time salary adjustment to avoid discrimination, not create it. During her cross-examination, Ms. Gu admitted that Mr. Johnson’s comment about not being able to teach an old dog new tricks was intended as a joke. Her affidavit did not indicate that.
[79] Ms. Gu also admits that after Mr. Johnson made the alleged comments in 2009, he made no further comments to her that were of a discriminatory nature until 2014. Ms. Gu alleges that that she was terminated in 2014 because, in 2009, she took issue with the comments Mr. Johnson had made to her.
[80] While I do not reject the possibility of such a scenario. It seems more plausible to me that, if a manager held discriminatory views about an employee, he would have ample means of terminating the employee without waiting five years for rationalization after a merger to do so. In addition, it is also less likely that someone with discriminatory views could keep them hidden for five years.
[81] As is evident from the evidence about the allegedly discriminatory bonus and the “old dog new tricks” comment, the character to be ascribed to particular words often depends on context and nuance.
[82] Ms. Gu provided no meaningful context to the statements she alleges Mr. Johnson to have made. There is significant danger in attributing a discriminatory character to words, taken in isolation, uttered nine years earlier. There is a material risk that context and nuance become lost over time. Although Ms. Gu referred to the potential termination of Ms. Manabat in the statement of claim she issued in 2015, she did not refer to any of the specific statements Mr. Johnson is alleged to have made until her affidavit of October 13, 2017, eight years after the fact.
[83] The March 2014 complaint arises out of an alleged statement by Mr. Johnson to the effect that neither Ms. Manabat nor Ms. Gu were local to Toronto and neither had been educated in an English-speaking country.
[84] Although Ms. Gu drafted the statement of claim herself, in the spring of 2015, she did not refer to the March 2014 incident because she did not remember it at the time. Ms. Gu says remembered it only after reviewing documents produced in the course of the proceeding.
[85] This suggests that the full context of the March 2014 incident was not racist or discriminatory. If Ms. Gu had been subject to racist or discriminatory comments by her superior, one might expect them to stand out in her mind. Ms. Gu has not pointed to the documents that helped her recall the incident.
[86] While Ms. Gu may genuinely believe what she says, I am sufficiently concerned about the absence of context and the danger of lost nuances over time that I have significant doubts about the reliability of her evidence.
[87] Mr. Johnson has no recollection of any conversations of the sort that Ms. Gu alleges. He says the sentiments contained in those comments are offensive to him. His evidence was not shaken or qualified in any way on cross-examination.
[88] Ms. Gu’s counsel submitted that Mr. Johnson should not be believed because he could not recall any details of discussions about Ms. Gu, although Mr. Johnson does recall that there were such discussions. That does not provide a valid basis for doubting Mr. Johnson’s evidence. As he explained, Habitat GTA had 120 employees. Almost every employee was discussed in the context of how they would fit in after the merger. The discussion about each was brief. In that context it is not surprising that Mr. Johnson might not recall specific details about the discussion concerning any one employee.
[89] Mr. Johnson’s absence of memory about the two incidents in question is also understandable. Ms. Gu provided no meaningful context around those conversations. Her affidavit refers to isolated phrases. Few of us would recall isolated words we are alleged to have said four or nine years after the fact without the provision of significant context. Even if provided with context, we may not remember the words or the conversation. The absence of a memory should not automatically be taken as demonstrating lack of credibility.
[90] Mr. Johnson struck me as candid and direct in his answers, if somewhat taciturn. Being taciturn does not, however, demonstrate lack of credibility. He answered each question directly and did not try to explain or embellish. Counsel did not ask for any explanation of Mr. Johnson’s answers and Mr. Johnson did not provide any. That, in my view, reflects a witness who is answering what is asked and is not trying to argue or defend his case during cross-examination.
[91] In addition to alleging that the decision to terminate her employment was discriminatory, Ms. Gu alleges that the manner of her termination was discriminatory because the only notice she received was her entitlement under the Employment Standards Act. There is no dispute that she is entitled to more than that. Ms. Gu contends that this was contrary to the more reasonable and generous approach that Habitat Toronto took when terminating other employees; terminations with which Ms. Gu was involved given her role at Habitat Toronto.
[92] Ms. Gu provided no details in her materials or during the course of argument that would allow me to assess this alleged practice. While there were suggestions that some other short term employees, had, in the past, been given short periods of common law notice, there were no particulars give about their situation. I received no information about other long term employees. In those circumstances, I am of the view that Ms. Gu has not made out a prima facie case for discrimination.
(b) The Failure to Investigate
[93] On July 11, 2014, Ms. Gu sent the CEO of Habitat GTA an email in which she wrote: “I’m writing you because I was discriminated against at Habitat in the past weeks” and asked that Habitat GTA “open an independent investigation into this discrimination case immediately.”
[94] The Senior Human Resources Director of Habitat GTA met with Ms. Gu to find out what she meant by discrimination. During that meeting Ms. Gu did not provide particulars of the discrimination and did not allege that her termination was racially motivated. Instead she asked why it was not possible to have her job back.
[95] At one point in cross-examination Ms. Gu said she raised the racial motive behind her termination during the meeting in an indirect way. At another point she said that she did not raise it because she hoped Habitat GTA would change its mind and re-employ her. In Ms. Gu’s words it would be “too ugly” if she gave particulars and Habitat GTA took her back on.
[96] Ms. Gu says she asked for a third party investigation because, although she could not raise the issue directly with Habitat GTA, she could raise the issue with a third party.
[97] On July 21, 2014 Ms. Gu repeated her request for an investigation “into this discrimination case immediately.”
[98] Given the absence of any particulars and the suggestion in Ms. Gu’s first email that the discrimination occurred in the “past weeks,” Habitat GTA could only have concluded that Ms. Gu was suggesting that the termination was discriminatory. On cross-examination Ms. Gu explained that the reference to discrimination in the “past weeks” was meant to refer to Mr. Johnson’s comments in 2009 and that, in Mandarin, the reference to “past weeks” would include a reference to more historic conduct. Without further explanation, however, Habitat GTA could not be expected to know that.
[99] In those circumstances, Habitat GTA would have no reason to commence a third party investigation. Habitat GTA was aware that the termination was part of a restructuring that occurred because of its amalgamation, historic growth and future growth plans. Its auditors had raised concerns about internal accounting resources and Habitat GTA had come to a similar conclusion on its own. At the same time that it terminated Ms. Gu’s employment, Habitat GTA also terminated the employment of two middle-aged Caucasian males. The facts of which Habitat GTA was aware would not give rise to any duty to investigate.
[100] If there were additional facts of which Ms. Gu was aware, it was incumbent upon her to bring those to the attention of Habitat GTA. Although Ms. Gu says she was uncomfortable raising particulars of discrimination directly with Habitat, she was sufficiently comfortable to make the general allegation of discrimination in two emails.
[101] Before an employer is expected to incur the time and expense of an investigation into discrimination it requires more than: (i) an unparticularized allegation that an employee was discriminated against; (ii) which allegation the employer would reasonably interpret as referring to the decision to terminate; (iii) when the termination occurred for objectively nondiscriminatory reasons. Given those facts, the investigation would be looking into the decision to terminate Ms. Gu in light of the accounting resources required by Habitat GTA. Habitat GTA could not instruct someone to investigate Mr. Johnson’s conduct if it did not know of that conduct.
[102] In my view, Ms. Gu has failed to make out a prima facie case of discrimination based on a failure to investigate.
[103] In her factum, Ms. Gu states that her claims for aggravated and punitive damages flow from her discrimination claim. Given that I have found there is no basis for a discrimination claim, her claim for aggravated and punitive damages must also fail.
VI. Intentional Infliction of Emotional Distress
[104] Ms. Gu’s claim for emotional distress rests on the allegedly discriminatory nature of her termination and the cessation of her working notice.
[105] Given that I have dismissed Ms. Gu’s claims for discrimination, there can be no claim for intentional infliction of emotional distress based on that claim.
[106] With respect to the cessation of working notice, Ms. Gu was initially given 8 weeks working notice and 15 weeks severance pay under the Employment Standards Act. The working notice was to extend from June 5, 2014 to July 31, 2014. On July 21, 2014, Habitat GTA concluded that working notice was no longer tenable and no longer met its objective of having Ms. Gu feel that she was being treated respectfully. As a result, the remaining 10 days of her working notice were substituted with pay in lieu of notice. Ms. Gu asserts that the decision was made only because she raised a discrimination claim.
[107] Ms. Gu’s position on working notice appears to be contradictory.
[108] On the one hand, Ms. Gu asserts that working notice was discriminatory because others were given pay in lieu of notice. On the other hand, Ms. Gu that complains that her working notice was converted to pay in lieu of notice and that this has caused her emotional distress.
[109] Habitat GTA offered Ms. Gu working notice because it believed that she would prefer it. When Ms. Gu raised concerns about working notice, she was given the option of either working from home or taking the balance of the notice as pay without working.
[110] I accept that Ms. Gu has suffered from emotional distress and has obtained medical treatment for a variety of emotionally induced symptoms. She has not, however, introduced any evidence to establish that her symptoms were caused by shortening her working notice by 10 days.
[111] In both her affidavit and her factum Ms. Gu says that she was “hurt” by the fact that she received only Employment Standard Act notice and not common law notice. She does not, however, allege that this caused her emotional distress. She does state more generally that:
The termination of my employment by Habitat GTA proved extremely traumatic for me and I have yet to fully recover.
After describing some of the symptoms she has suffered she states:
I believe that the symptoms are closely connected to the nature of my termination by Habitat GTA.
[112] The thrust of her affidavit and factum is that the discriminatory nature of her termination caused her emotional distress. As noted above, I have found that her termination was not discriminatory.
[113] While I do not exclude the possibility that the failure to pay common-law notice might, in an appropriate case, with an appropriate evidentiary record provide a basis for awarding damages for emotional distress, there is no such record here.
[114] As a result of the foregoing I dismiss Ms. Gu’s claim for emotional distress.
Disposition
[115] For the reasons set out above I award judgment in favour of Ms. Gu for:
(a) 18 months’ notice calculated based on an annual salary of $80,794 plus benefits;
(b) $500 on account of Habitat GTA’s promise to fund legal advice which was never paid; and
(c) Vacation pay of $3,024.66.
[116] I dismiss the balance of Ms. Gu’s claim.
[117] If the parties cannot agree on the calculation of the specific dollar amount of the judgment arising out of the foregoing paragraph within 10 days of its release, I will determine the issue on a telephone conference call which the parties can arrange by contacting my assistant through judges’ reception.
[118] If costs cannot be agreed between the parties, I will entertain written submissions. Ms. Gu is to file written submissions on costs within four weeks of these reasons being released. Habitat GTA will have two weeks to respond. Ms. Gu will have five business days to reply.
Koehnen J.
Released: May 10, 2018
COURT FILE NO.: CV-15-528995
DATE: 20180510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YING (MS. GU) GU
Plaintiff
– and –
HABITAT FOR HUMANITY GREATER TORONTO AREA INC. and
HABITAT FOR HUMANITY CANADA INC. and GRANT THORNTON LLP, NATIONAL TORONTO
Defendants
REASONS FOR JUDGMENT
Koehnen J.
Released: May 10, 2018