Court File and Parties

Court File No.: CV-15-541648 Date: 2018-06-27 Superior Court of Justice - Ontario

Re: Brian Roskaft, Plaintiff And: RONA Inc., Defendant

Before: Pollak J.

Counsel: Howard Markowitz, for the Plaintiff Sonia Regenbogen and Jeff Rochwerg, for the Defendant

Heard: May 9, 2018

Endorsement

[1] Mr. Roskaft commenced employment with a predecessor company of RONA Inc. (“RONA”) on September 16, 2002 and started a leave of absence for a medical condition on September 28, 2012.

[2] Short-term disability ("STD") and long-term disability (“LTD”) benefits were provided to Mr. Roskaft, subject to the terms of an insured employment benefit plan (the "Plan") through Sun Life. Sun Life administers claims on behalf of RONA and makes all decisions and payments with respect to employee claims. RONA has no involvement in Sun Life's decision process and cannot legally challenge its decisions. Employee claims are submitted to Sun Life. RONA has no access to copies of any medical documentation. RONA is told if an LTD claim is approved, but is not given the reason for the employee's absence.

[3] Sun Life approved Mr. Roskaft’s claim for STD benefits and then LTD benefits as a result of his disability and inability to work.

[4] On October 20, 2014, the Plaintiff completed a Return to Work Form which stated that he was unable to work and that his return to work date was "N/A". The form was stamped by his general practitioner.

[5] In correspondence dated December 5, 2014, from SunLife, RONA was advised that the Plaintiff could not return to work and it is alleged by RONA that in that correspondence, Sun Life concluded that he was “permanently” totally disabled in relation to both his own occupation and any occupation.

[6] In September of 2015, RONA reviewed Mr. Roskaft's file and decided that on the basis of the letter from Sun Life dated December 3, 2014, and in the absence of any other documentation to the contrary, Mr. Roskaft was “permanently” totally disabled from employment in any occupation and that it was unlikely that Mr. Roskaft would be able to return to work within a reasonable time.

[7] On September 15, 2015, Mr. Roskaft was advised that he was terminated from employment as a result of frustration of the contract, and that he would continue to receive Sun Life employment LTD benefits provided he remained totally disabled as defined in his insurance plan and that RONA would pay him his minimum entitlements pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

[8] In this wrongful dismissal action, the Plaintiff denies that his 13 year employment contract was frustrated.

[9] This motion brought by RONA is for summary judgment dismissing this action against RONA.

[10] The parties agree that the summary judgment procedure is appropriate as the law is settled and the issues are not novel. There are sufficient facts on the record upon which to make a decision, and any credibility concerns can be addressed by this Court by using its enhanced powers under Rule 20.04 (2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[11] The parties agree that if there was no reasonable likelihood, at the time of termination of employment, that Mr. Roskaft would be able to return to work within a reasonable period of time, his employment contract had become frustrated. The doctrine of frustration applies because the Plaintiff’s permanent disability made his performance of the employment contract impossible and the obligations of the parties are therefore discharged without penalty: Fraser v. UBS Global Asset Management, 2011 ONSC 5448; Nason v. Thunder Bay Orthopaedic Inc., 2015 ONSC 8097, at para 180; Lemesani v. Lowerys Inc., 2017 ONSC 1808, at para 137.

[12] RONA’s position is that at the time of his termination, neither Mr. Roskaft nor Sun Life had provided any information to RONA to change a conclusion that Mr. Roskaft was permanently totally disabled and that there was no reasonable likelihood that he would be returning to work within a reasonable period of time.

[13] RONA submits that in such circumstances, because of such evidence, it was entitled to reach this conclusion and it was not required to contact Mr. Roskaft for any further information.

[14] The Plaintiff’s position is that at the time of this termination of employment, RONA had not properly considered the possibility of his return to work. He argues that after 13-years’ employment, in a non-essential, clerical position, following a job related injury, where he was covered by long-term disability benefits, it was not unforeseeable that he could be off on long-term disability for a lengthy period of time before losing his job. He submits that, at the time of his termination from employment, it was not known if he would be returning back to work within a reasonable time-frame.

[15] His evidence on this motion is that when he was terminated, he was starting to feel better, but RONA made no inquiries about his condition.

[16] He argues that RONA could have easily made inquiries and did not.

[17] It should be noted that the Plaintiff confirmed at the hearing that he is abandoning his claims pursuant to the Ontario Human Rights Code. There was therefore no argument made with respect to the employer’s obligations to reasonably accommodate the Plaintiff.

[18] The Plaintiff submitted that he did not submit any updated medical documentation because he was not asked to. Sun Life’s December 5, 2014 letter did not ask for updated medical information. It stated:

Periodically, we will be sending you a request for information regarding your employment status, medical condition and any other sources of income. …Any requests for medical information from your physician(s) will be made on an as needed basis.

[19] He submits that had RONA and/or Sun Life asked for further medical information, he would have provided it. There is however, no evidence to support this argument. The Plaintiff continues, to the date of this hearing, to receive LTD benefits from SunLife and has never taken the position that he is able to return to work.

[20] RONA also relies on the post termination evidence contained in a Sun Life form completed by the Plaintiff dated January 4, 2016 wherein he stated that his current medical condition had not improved. This was also confirmed by the Plaintiff in a form dated February 21, 2017 wherein he stated that his medical condition had not improved.

[21] The Plaintiff challenges RONA’s reliance on this evidence because this form was completed after his termination of employment.

[22] In the case of Ciszkowski v. Canac Kitchens, a division of Kohler Canada Co., 2015 ONSC 73, relied on by the Plaintiff, the court stated that:

[156] Frustration of an employee’s contract is always established with reference to the time of dismissal. In pleading frustration, an employer is entitled to rely on post-termination evidence not in its possession at the time of dismissal so long as it relates to the nature and extent of an employee’s disability at the time of dismissal. The “evidence subsequently disclosed” should shed light on the nature and extent of the employee’s disability at the time of an employee’s dismissal. An employer is not entitled to rely on evidence that relates to the post-termination nature and extent of an employee’s disability if that evidence is not relevant to the dismissal date. To allow an employer to succeed in pleading frustration on the basis of such evidence would be neither fair nor reasonable.

[23] The Court must determine whether, on the basis of the evidence before it, a determination can be made on whether at the time of the Plaintiff’s termination of employment there was no reasonable likelihood that he would be able to return to work within a reasonable period of time. The evidence is that as of the hearing of this motion, the Plaintiff is still being paid LTD benefits and has never taken the position, since he has being receiving benefits, that he does not continue to be totally disabled and is able to do any work. I find that the post-termination evidence does “shed light on the nature and extent of the employee’s disability at the time of an employee’s dismissal.” This evidence contradicts the Plaintiff’s assertion that had RONA or Sun Life asked for further medical evidence at the time of his termination of employment, he would have provided it and he would have been able to return to work.

[24] Following the guidelines set out by our Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87, I find that I can and that this is a motion appropriate for summary judgment.

[25] Although both parties have, to some extent, characterized the dispute before the Court as a dispute regarding whose obligation it is to submit or to request medical information, the Court’s determination of the central issue with respect to the reasonable likelihood of a return to work within a reasonable period of time is, in my view, guided by a consideration of the totality of the available evidence.

[26] When I examine the evidence in its totality I find that RONA was not entitled to conclude on the basis of the December 2014 letter from SunLife that it had determined that the Plaintiff was “permanently” disabled. There is no reference to “permanent” disability in that correspondence. However, I find that there was enough evidence at the time of the termination of employment on the basis of the decision of SunLife that the Plaintiff was sufficiently disabled to qualify for his LTD benefits; as well as the continued representations of the Plaintiff that his medical condition has not improved and he was totally disabled from performing the duties of any occupation, and the Plaintiff’s continued receipt of LTD benefits, to reasonably conclude that there “was no reasonable likelihood” that the Plaintiff would be able to return to work within a reasonable period of time.

[27] To conclude, I find on the totality of the evidence I have referred to above, that it was reasonable for RONA to conclude at the time of termination of employment that there was no likelihood of Mr. Roskaft returning to work within a reasonable period of time.

[28] For these reasons, the Defendant’s motion is therefore granted and the Plaintiff’s claim is therefore dismissed.

Costs

[29] 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 Defendant’s submissions are to be delivered by 12:00 p.m. on July 6, 2018, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on July 13, 2018. Any reply submissions are to be delivered by 12:00 p.m. on July 18, 2018.

Pollak J. Date: June 27, 2018