COURT FILE NO.: 14-114SR
DATE: 20180207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Susan Rouse
John A. Tamming, for the Plaintiff
Plaintiff
- and -
Dr. Thomas G. Drake and Dr. David H. Drake, Carrying on Business as North Bruce Dental Office
D. Andrew Thomson, for the Defendants
Defendants
HEARD: December 5 & 11, 2017
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Issue
[1] In this employment case, the major question is whether the Plaintiff, Susan Rouse (“Rouse”), was wrongfully dismissed by her employer, or whether she was fired for just cause.
[2] The Defendants are Thomas Drake (“Thomas”) and David Drake (“David”), collectively the “Drakes”, and their dental practice. Thomas and David are dentists and identical twins who at all material times had an office in Lion’s Head, Ontario, located in the basement of a house.
The Onus and the Standard of Proof
[3] The civil standard of proof is on a balance of probabilities (more likely than not).
[4] Although the plaintiff normally carries the legal burden to prove both liability and damages, it is trite law that the employer must prove just cause for the termination of an employee without notice or pay in lieu of notice.
The Parties
[5] Rouse is currently 46 years old. She has lived in Lion’s Head since she was a child. She is not married. She has two adult children.
[6] Rouse graduated from high school and obtained a diploma from Georgian College to be an educational assistant.
[7] She has worked as a hairstylist for many years, and continues to do so. She worked for the Bluewater District School Board for a period of time up to the year 2006.
[8] The Drakes have been dental surgeons for well over thirty years. They operate four offices, including the one in Lion’s Head.
The Trial
[9] This was a short trial. It was heard over two days in Owen Sound in December 2017, followed by written closing submissions.
[10] For the Plaintiff, I heard testimony from Rouse, Pasquale Duronio (a dentist who worked with Rouse at the Drakes’ Lion’s Head office), and Andrea Goetz (a dental patient who visited the Lion’s Head office and, also, a friend of Rouse).
[11] For the Defendants, I heard testimony from Michael Davidson (the man who installed surveillance cameras inside the Lion’s Head office), and Thomas and David.
[12] Each side filed a Documents Brief.
II. Analysis
The Evidence of Susan Rouse
[13] Rouse testified that she applied for a job with the Defendants after seeing an ad. She was interviewed by Thomas and David and was hired.
[14] Her employment commenced on January 5, 2005 and ended on June 23, 2012. Thus, she worked for the Defendants for nearly 7.5 years.
[15] Initially, she was part-time. By the end, according to Rouse, she was full-time (37-42 hours per week, on average, although her hours fluctuated).
[16] She received some benefits, such as free dental work.
[17] In the tax year 2011, Rouse’s annual employment income, gross, from the dental office was $36,490.00.
[18] The Drakes’ mother, Betty, now deceased, also was involved with the dental practice. She was the bookkeeper.
[19] The Drakes had other dental offices in Ontario, for a total of four including the one in Lion’s Head.
[20] In 2006, an associate dentist was hired by the Drakes, Dr. Duronio (“Duronio”). Duronio worked at the Lion’s Head office. So did the Drakes, but they were often elsewhere.
[21] Rouse described an unusual workplace, to say the least:
(i) she would get paid based on hours that she wrote down herself on pieces of paper;
(ii) she was never given in writing any employment contract, or any formal job description, or any employment manual or even a loose collection of policies and procedures of any kind;
(iii) she never received any formal training of any kind;
(iv) she had no schedule but merely turned up at the office whenever she turned up (as she said in cross-examination, she went to work whenever she felt like it);
(v) her duties varied – receptionist (answer the telephone and make appointments for patients), and occasionally a dental assistant (although not educated or trained for that);
(vi) Thomas repeatedly threatened to fire her if she reported certain misconduct that she saw, or if she booked appointments with Duronio for patients of the Drakes;
(vii) she witnessed shockingly racist behaviour by the Drakes, such as an incident when Thomas treated an Aboriginal man and left him bleeding only to comment afterwards that “he’s an Indian, they don’t deserve teeth”;
(viii) she witnessed shockingly abusive behaviour by the Drakes, such as an incident when Thomas grabbed a young Aboriginal girl in an aggressive manner, forcefully shoved her back into the dental chair and told her to “shut up”;
(ix) the office was full of cameras (like the ones used to track “wild game”, in Rouse’s words), at least four of them at one time, all meant to conduct surveillance on the actions of the staff and Duronio (“gotcha cameras”, in the words of Rouse);
(ix) although the cameras were installed professionally, she was not warned about them in advance; and
(x) on at least one occasion, David made a sexually-charged comment to her, referred to below.
[22] In summary, Rouse painted a picture of a dysfunctional business office run by two racist, paranoid, abusive and perverted dentists and their elderly mother.
[23] Rouse never reported any of the alleged patient abuse to any authority. She stated that she needed the job because she was a single mother of two dependants.
[24] Rouse testified that, before the date of her termination, she was never given a written reprimand for anything. She was given verbal reprimands for a few different things, or at least a few concerns were brought to her attention by the Drakes (whether Thomas, David and/or Betty). There was never any formal meeting with anyone to review her work performance. She never received any written job performance review.
[25] In cross-examination, Rouse denied the Drakes’ allegations of misconduct on her part, subject to the following. It is “possible” that she forgot, on occasion, to put the office telephone on call forward. There were some invoices that did not get sent out. There were three patients of the Drakes who she permitted to see Duronio after she was instructed by the Drakes not to allow their patients to see Duronio (she testified that, in those cases, the patients had urgent needs). Finally, she sometimes spoke to her children on the office telephone.
[26] Rouse described in detail the day that she was fired, June 23, 2012. There was a bunch of handwritten notes from the Drakes at the office, full of complaints. She went to speak with David upstairs. She was nervous and dropped some papers. As she bent down, he said “while you’re down there…”, which she took as a sexual comment. She went back downstairs. Thomas handed to her a note that said that she was being fired for cause. The note referred to their lawyer, Mr. Thomson, who it turns out is related to the Drakes. She tried the number for Mr. Thomson, to no avail. Then, remarkably, the Drakes gave her a hug goodbye.
[27] She received no advance notice of the termination and no pay except for what she was due for hours worked up until June 23rd. And she was never given any reason for her firing.
[28] She then claimed employment insurance benefits for a while, applied for many, many jobs and, in May 2013, went to work for another dentist in Hanover, Ontario.
[29] Amazingly, despite being the victim of the lunatic fringe in Lion’s Head, Rouse testified that, even today, she has no bad feelings towards the Drakes.
The Evidence of Pasquale Duronio
[30] Dr. Duronio, a dentist for 43 years who has been an associate or independent contractor working at the Drakes’ Lion’s Head office for the last eleven years, testified that he never saw a written work schedule for Rouse. She was expected to be there when Duronio was there, which was Mondays, Tuesdays and Wednesdays.
[31] Duronio confirmed that the Drakes complained to him about Rouse’s work hours, specifically whether they were excessive, and about her being late for work, although Duronio never had any issues with Rouse regarding those items or anything else. She was a good worker.
[32] Duronio also confirmed that Rouse appeared bothered, or at least concerned, about the cameras that were installed inside the office.
The Evidence of Andrea Goetz
[33] As a patient of the Drakes’ Lion’s Head dental office, Ms. Goetz (“Goetz”) got to know and then befriend Rouse.
[34] Goetz described Rouse as pleasant, welcoming and going above and beyond what one would ordinarily expect of such an employee.
The Evidence of Michael Davidson
[35] Mr. Davidson (“Davidson”) installs alarm systems and cameras and has done so since 1991.
[36] He installed four cameras at the Drakes’ Lion’s Head office.
[37] The installation date was “not pleasant” as Rouse was concerned about privacy and telling him where and where not to point the cameras. Davidson decided to finish the installation process when Rouse was not there.
[38] According to Davidson, it is very unlikely that any of the cameras would be moved accidentally. In addition, you cannot reach the cameras without standing on something.
[39] Nevertheless, there were problems after the installation. The router was changed to the factory default setting, probably by someone pushing the button on the device, making the system ineffective. The power was disconnected, both on the recorder and on the cameras themselves. On two occasions, Davidson had to adjust the cameras as they had been moved.
[40] Davidson does not know who the culprit(s) was/were.
The Evidence of Thomas Drake
[41] Thomas identified Exhibit 3, his handwritten termination note addressed to Rouse, dated June 23, 2012. It simply declared that Rouse was being “dismissed with cause immediately”, and referenced contact information for the Drakes’ lawyer.
[42] Thomas is an experienced dental surgeon. He has worked as such since 1981.
[43] Thomas and his brother have four offices, including the one in Lion’s Head. They would generally be in Lion’s Head only on Saturdays.
[44] Betty, their late mother, helped manage the dental practice. She died two years ago.
[45] Rouse was hired for three main purposes – janitorial duties, chair-side assistant to the dentists, and receptionist. Of those three areas, she was lousy at two of them and not great in the third role, receptionist.
[46] According to Thomas, Rouse was never a full-time employee. Initially, she worked just Fridays and Saturdays. After Duronio joined, she worked about 30-33 hours over five days per week (not Thursdays or Sundays). Rouse had a work schedule prepared by Betty, although other written items were lacking: an employee manual, performance reviews, a contract, and a job description, as examples.
[47] Thomas was simply “too busy” for sit-down work performance reviews.
[48] Rouse was paid an hourly wage and had no benefits except free dental work.
[49] The office relied on the “honesty system”, whereby Rouse and other employees wrote down their own hours worked and were paid accordingly.
[50] Thomas testified that he confronted Rouse about what appeared to the Drakes to be excessive work hours being claimed by her. Nothing changed.
[51] Exhibit 1, tab 10 is Betty’s handwritten list of “aggravations” concerning Rouse. Thomas could not confirm whether that document was ever given to Rouse or whether he ever spoke to her about any of those complaints.
[52] Exhibit 1, tab 13 is a letter to Rouse dated August 25, 2010. It outlines some concerns about her work, but Thomas could not confirm whether he signed it or whether it was given to Rouse (the most that he could say is that he “imagines” he did and it was).
[53] Thomas never spoke to Rouse about the cameras before they were installed.
[54] Before her termination, Thomas talked to Rouse, more than once, about her work hours. He simply told her to work according to the schedule.
[55] In addition, before her termination, Thomas talked to Rouse about her moving the computer monitor out of the view of the cameras. He also told her not to touch the cameras.
[56] Further, before her termination, Thomas talked to Rouse about her directing long-time patients of the Drakes to Duronio. That was bad for patient care and resulted in not enough work for the Drakes on some Saturdays. Thomas could not say for certain whether he warned Rouse that she could or would be fired if that continued (he testified that he “probably” gave that warning, or that he “thinks” that he did).
[57] Exhibit 2, tab 2 are photographs that Thomas printed from his computer in Stratford when he watched some video footage from the cameras inside the Lion’s Head office. He printed the images about three to four weeks before Rouse was fired. It was the “final straw”, according to Thomas.
[58] Per Thomas, the video and the photographs show Rouse manipulating the cameras.
[59] On the termination date, there were no hugs exchanged, according to Thomas. The Drakes simply do not do that kind of thing. Rouse showed-up late for work. Thomas handwrote Exhibit 3. He and David signed it. He gave it to Rouse. She surrendered her office keys, gathered up her stuff and left the premises.
[60] There was no severance pay, but Rouse was paid for her hours of work claimed up to the date of termination.
[61] Generally, according to Thomas, Rouse was a bad employee. She would not follow the rules. In his words, she gave them more problems than all of their other employees over the years, combined.
[62] In cross-examination, Thomas’ characterization of Rouse as an employee became even worse. She was “insubordinate” for years. She had merely one good skill – being pleasant with patients. She committed “fraud” with her hours worked. She was “lying” about her hours worked. She was engaged in “criminal conduct” in terms of her work hours being claimed and by doing personal business at the office. She was late for work some fifty times in the last 1.5 years before the termination date.
[63] Nevertheless, her employment was preserved for at least 1.5 years while Thomas assembled the evidence to support her termination, although he was convinced that Rouse was “involved in criminal activity” during that period of time.
[64] Thomas flatly denied any racism or unethical conduct on his part. The Drakes have always treated Aboriginal patients fairly and decently. Specifically, the incident described by Rouse about the Aboriginal man did not occur. There was never any discrepancy between his notes and what amount of freezing injection was actually administered to a patient. And the incident described by Rouse about the young Aboriginal girl did not involve any shoving or aggressive or assaultive conduct on the part of Thomas. Instead, he merely assisted his brother in providing service to an uncooperative child.
[65] Thomas was inconsistent in his testimony on whether he ever told Rouse or another employee not to contact the children’s aid society. In direct examination, he stated that he “might have”. In cross-examination, he said that he never did.
The Evidence of David Drake
[66] David identified Exhibit 3 as the termination note.
[67] Like his brother, David is an experienced dental surgeon. He has worked in that capacity since 1981. Unlike his brother, however, David has had virtually nothing to do with the management of the dental practice. In his words, his job is to “drill and fill”.
[68] David has no recollection of the incident involving the uncooperative young Aboriginal female patient.
[69] David denied that he ever said to Rouse “while you’re down there…”, or words to that effect, whether on the date of termination or at some other time.
[70] David agreed with his brother that no hugs were exchanged with Rouse on the day that she was fired.
The Positions of the Parties
[71] Counsel delivered their closing submissions in writing. First, let me summarize the authorities filed by each side, but only those that I have found to be most relevant to our circumstances.
[72] In Armstrong v. Lendon, 2015 ONSC 3004, filed by Rouse, Sproat J., at paragraph 8 of the decision, summarized some of the law pertaining to just cause for dismissal:
[8] McKinley v. BCTel, 2001 SCC 38, [2001] 2 S.C.R. 161, involved allegations of dishonesty. The allegations made by the defendant are a combination of insolence, incompetence, absenteeism and of conduct otherwise incompatible with continued employment. The lessons of McKinley are that:
a) A contextual approach must be taken to determine whether conduct constitutes just cause for dismissal.
b) The focus is on whether the conduct has given rise to a breakdown in the employment relationship.
c) Conduct which would constitute just cause for a short term junior employee will not for a long term employee in a more senior position.
d) There must be proportionality between the misconduct and the sanction imposed by the employer.
[73] On the issue of condonation on the part of the employer, Sproat J. set out the following reference at paragraph 13 of the same decision identified above:
[13] In Nossal v. Better Business Bureau of Metropolitan Toronto Inc., (1985) 1985 CanLII 1980 (ON CA), 51 O.R. (2d) 279 (C.A.) the Court stated:
Almost 100 years ago, this Court dealt with the issue of the use of accumulated past conduct by employees. In McIntyre v. Hockin (1889), 16 O.A.R. 498, Maclennan J.A., speaking for the Court, said at pp. 501-2:
It may be proper, however, to add a few words on the subject of condonation. When an employer becomes aware of misconduct on the part of his servant, sufficient to justify dismissal, he may adopt either of two courses. He may dismiss, or he may overlook the fault. But he cannot retain the servant in his employment, and afterwards at any distance of time turn him away. It would be most unjust if he could do that, for one of the consequences of dismissal for good cause is, that the servant can recover nothing for his services beyond the last pay day, whether his engagement be by the year or otherwise: Smith's Law of Master and Servant, 4th ed., p. 220; Boston Deep Sea Fishing Co. v. Ansell, 39 Ch. D. 339. If he retains the servant in his employment for any considerable time after discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault without anything new. No doubt the employer ought to have a reasonable time to determine what to do, to consider whether he will dismiss or not, or to look for another servant. So, also, he must have full knowledge of the nature and extent of the fault, for he cannot forgive or condone matters of which he is not fully informed. Further, condonation is subject to an implied condition of future good conduct, and whenever any new misconduct occurs, the old offences may be invoked and may be put in the scale against the offender as cause for dismissal.
[74] Finally, at paragraph 16 of that same decision, Sproat J. reminded us that it is the responsibility of the employer to prove a failure to take reasonable steps to mitigate damages.
[75] In Doyle v. Zochem Inc., 2017 ONCA 130, filed by Rouse, the Court of Appeal for Ontario, at paragraphs 12 and 13 of the decision, summarized the law as it relates to “moral damages” in the context of wrongful dismissal:
[12] Beginning with Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, at para. 95, the Supreme Court of Canada recognized that there is an obligation of good faith in the manner of dismissal of an employee and, at paras. 88 and 98, specified that damages are available where an employer engages in conduct that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.” Initially the award, now known as moral damages, involved compensation through an addition to the period of notice. However, in Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 59, the Court essentially did away with the distinction between aggravated damages and moral damages and held that these damages should be recognized through a fixed monetary award rather than through an extension of the notice period: see S.R. Ball, Canadian Employment Law, loose-leaf (2016), vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2007), at § 22: 20.19 (1.1), p. 22-59 and § 22:20.19 (1.2), p. 22-60.
[13] The factors relevant to an award of moral damages are not limited to the examples in Honda, at para. 59 and Wallace, at paras. 98, 101. Nor, is the time frame limited to the moment of dismissal. Pre and post termination conduct may be considered in an award for moral damages, so long as it is “a component of the manner of dismissal”: Gismondi v.. Toronto (City), 2003 CanLII 52143 (ON CA), 64 O.R. (3d) 688 (C.A.), at para. 23, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 312; Ball, at § 22:20.19(1.1), p. 22-50.
[76] In Marshall v. Watson Wyatt & Co., 2002 CanLII 13354 (ON CA), [2002] O.J. No. 84, filed by Rouse, the Court of Appeal for Ontario confirmed that there are instances when the reasonable notice period ought to be extended in order to account for “hard ball” conduct on the part of the employer that amounts to bad faith, but an award of punitive damages depends on employer conduct that can be described as being exceptionally harsh, vindictive, reprehensible or malicious. Further, punitive damages may only be awarded where the employer has committed a separate or independent actionable wrong causing damage to the dismissed employee. Finally, punitive damages may only be granted where the compensatory damages are considered to be insufficient to express repugnance at the employer’s conduct and to punish and deter.
[77] In Leitner v. Wyeth Canada, 2010 ONSC 579, filed by Rouse, Pitt J., at paragraph 13 of the decision, had this to say about how to determine a reasonable notice period:
[13] The length of the notice period is determined on a case-by-case basis with consideration of four factors: the employee’s age, the length of the employee’s service, the character of the employment and the availability of other similar employment: see Bardal v. The Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.); and Machtinger, supra at 998. These factors are not, however, exhaustive: see Wallace, supra at para.82.
[78] More recently, in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, filed by Rouse, the Court of Appeal for Ontario, at paragraphs 38 through 42 of the decision, summarized the law with regard to what constitutes reasonable notice of termination:
[38] In Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 28, the Supreme Court reinforced what have come to be known as the Bardal factors:
In determining what constitutes reasonable notice of termination, the courts have generally applied the principles articulated by McRuer C.J.H.C. in Bardal, at p. 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualification of the servant.
[39] In Keays, the court clarified that in determining the appropriate notice period the court’s concern is the particular circumstances of the individual – no one Bardal factor should be given disproportionate weight: Keays, at paras. 30, 32.
[40] This fact-specific and contextual approach to the period of reasonable notice, limited by a range of reasonableness, is consistent with the manner in which this court has reviewed wrongful dismissal awards. As Laskin J.A. observed in Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.), at pp. 343-44:
Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily, there is no one "right" figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge's determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge's award is within an acceptable range despite the error in principle.
[41] This court has rejected the argument that there should be an upper limit on notice periods in wrongful dismissal cases. In Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, 337 D.L.R. (4th) 679, at para. 23, MacPherson J.A. declined to set a cap for the quantum of reasonable notice for clerical and unskilled employees. This court has noted, however, that courts should strive to ensure that notice periods are consistent with the case law: Kotecha v. Affinia Canada ULC, 2014 ONCA 411, at para. 8.
[42] Although it is clear that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months: Lowndes v. Summit Ford Sales Ltd. (2006), 2006 CanLII 14 (ON CA), 206 O.A.C. 55 (C.A.), at para. 11; Keenan v. Canac Kitchens Ltd., 2016 ONCA paras. 30-32.
[79] In Connolly v. General Motors of Canada Ltd., [1993] O.J. No. 2811 (Gen. Div.), filed by the Drakes, Ferguson J., at paragraph 40 of the decision, accepted the parties’ joint position that the dismissed employee bears the onus of proving condonation on the part of the employer. It is a question of fact.
[80] In Backman v. Maritime Paper Products Limited, a body corporate, 2009 NBCA 62, filed by the Drakes, the Court of Appeal of New Brunswick, at paragraph 26 of the decision, summarized the law relating to condonation as follows:
[26] I agree with these statements on the question of condonation of workplace misconduct. In summary, the law holds that an employer who does not discipline an employee within a reasonable period of time for a known act of misconduct cannot later dismiss the employee for that particular act of misconduct, but, if the employee engages in further misconduct, the previous misconduct can then be considered by the employer in determining the appropriate sanction for the latter misconduct.
[81] In Portugal v. Car Park Management Services Ltd., 2004 CanLII 34308 (ON SC), filed by the Drakes, Ducharme J., at paragraphs 29 and 30 of the decision, summarized the leading jurisprudence as it relates to increased damages for bad faith conduct or unfair dealing by the employer in the course of dismissal:
[29] In Wallace v. United Grain Growers Ltd. (1997), 1997 CanLII 332 (SCC), 152 D.L.R. (4th) 1 the Supreme Court of Canada described the relationship of employer and employee. At page 33, Iacobucci, J. described the obligations of the employer at the point of dismissal:
to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period.
[30] He continued at page 34:
The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.
[82] Finally, in McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, filed by the Drakes, the Supreme Court of Canada, at paragraphs 48 and 49 of the decision, held the following in terms of dismissal of an employee for reasons of dishonesty:
48 In light of the foregoing analysis, 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.
49 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.
[83] In a nutshell, the Plaintiff argues that (i) although not perfect in her testimony, Rouse was more credible than the Drakes, specifically Thomas, (ii) Rouse was not an incompetent employee, (iii) even if she was an incompetent employee, the evidence of condonation is overwhelming, (iv) Rouse did not engage in anything close to fraudulent or dishonest conduct, (v) a reasonable notice period in this case would be ten (10) months, (vi) aggravated damages of $40,000.00 and punitive damages of $15,000.00 are appropriate in this case, and (vii) Rouse properly mitigated her damages.
[84] Succinctly put, the Defendants submit that (i) Rouse was fired for cause – cheating and being dishonest in claiming unjustified hours of work and interfering with the surveillance cameras to conceal her activities, (ii) in the alternative, Rouse’s claim ought to be limited to pay in lieu of reasonable notice and nothing for aggravated or punitive damages, and (iii) this Court should consider reducing Rouse’s damages on account of her failure to adequately mitigate them.
Findings
[85] There is no dispute that Rouse’s employment with the Drakes commenced in early January 2005 and continued for nearly 7.5 years, until the termination date of June 23, 2012.
[86] Although the parties disagree about the characterization of Rouse’s employment at the time of termination, that is whether it was part-time or full-time, both sides agree that she was working at least 30 hours per week.
[87] There is no dispute that Rouse was fired without any notice or pay in lieu of notice.
[88] There is no dispute that Rouse’s gross annual income during the last tax year before her firing was $36,490.00.
[89] In terms of assessing the trial evidence on the controversial points, I begin by observing that Rouse was a wreck in the witness box. She presented as scattered, frazzled and totally unfocussed.
[90] In contrast, the Drakes, especially Thomas, testified in a more confident, calm, and direct manner.
[91] Of course, demeanour can be deceiving, and it is just one factor in terms of the overall assessment of how much weight, if any, to attach to a witness’ evidence.
[92] In my view, both sides exaggerated their evidence at trial. I neither accept nor reject all of the evidence of either of the two principal witnesses, Rouse and Thomas.
[93] For example, I do not believe for a moment that Rouse never deliberately manipulated the security cameras that were installed inside the dental office. Of course she did. That is the only rational conclusion when one considers the other unchallenged evidence at trial – Duronio’s testimony that Rouse was bothered or at least concerned about the cameras, and Davidson’s evidence that Rouse was essentially obsessed with the cameras, and the photographs marked Exhibit 2, tab 2.
[94] As a further example, I do not believe for a moment that the Drakes are the racist psychopaths that they have been portrayed as. If they were, Rouse, notwithstanding her income security problems, would have blown the whistle long ago. I accept that the Drakes are likely gruff with patients, including Aboriginals and children, however, that is a matter of style and personality and not one of the kind described by Rouse in her trial evidence.
[95] On the other side of the coin, I do not believe for a moment that Rouse was the terrible employee, essentially a useless, insubordinate fraudster who sucked the air out of the building for years, as described by Thomas. I do not perceive the Drakes as being in the charity business, and if Rouse had been even close to that type of employee she would have been shown the door in a heartbeat.
[96] As in many cases, the truth I think falls somewhere in the middle.
[97] I find that there were some problems with Rouse, including (i) the interference with the security cameras, at least once, (ii) being late on occasion (but not nearly as often as alleged by Thomas in cross-examination at trial), and the other items admitted to by Rouse herself: (iii) forgetting, on occasion, to put the office telephone on call forward, (iv) failing to send a few invoices out, (v) in rare emergency situations, permitting patients of the Drakes to see Duronio contrary to prior direction from the Drakes, and (vi) sometimes speaking to her children on the office telephone.
[98] I specifically do not find that Rouse deliberately falsified any of her work hours, or that she committed fraud in any way, or that she was dishonest, or that she engaged in any criminal conduct.
[99] In my view, none of the problems that have been established in the evidence at trial, the six items identified above, whether individually or assessed in combination with some or all of the others, amounts to just cause for Rouse’s termination. She ought to have been given reasonable notice or pay in lieu of notice.
[100] I assess the reasonable notice period in this case to be eight (8) months. Damages will be awarded accordingly, limited to that.
[101] In other words, there will be nothing awarded to Rouse for moral damages; nothing for punitive or aggravated damages; and no augmentation of what would otherwise be a reasonable notice period on account of unfair dealing or bad faith conduct on the part of the Drakes.
[102] Counsel can calculate the damages based on what Rouse earned in the tax year 2011, the undisputed figure of $36,490.00, gross, unless there is some later income that this Court is unaware of but which the parties can agree on.
[103] To explain the eight-month reasonable notice period, I have taken into consideration all of the factors described in the jurisprudence summarized above, including (i) the nature of Rouse’s employment (she was essentially in charge of the Lion’s Head office a great deal of the time, and her duties were varied), (ii) how long she worked for the Drakes (close to 7.5 years), (iii) whether she was induced to leave her previous employment (no she was not, but she did have a good work history before joining the Drakes’ dental practice), and (iv) whether she had expertise such that further training was unnecessary (she acquired hands-on experience that could carry-over to another dental office, but she certainly did not obtain sufficient training with the Drakes that would have made her a highly desirable employee for another dentist).
[104] I return, now, to deal with why I have rejected certain arguments made on both sides.
[105] First, on the issue of just cause, the Drakes rely upon Rouse’s alleged dishonesty in falsifying her work hours and/or claiming unjustified hours of work. Quite reasonably, there is no assertion by the Drakes that Rouse’s manipulation of the security cameras, alone, would amount to just cause. Rather, that was the “last straw” and illustrative of her dishonesty with regard to her work hours, the Drakes submit.
[106] I reject those arguments. There is no reliable evidence that Rouse falsified her work hours or claimed unjustified hours of work. We have only Thomas’ speculation that she must have because her work tasks did not take as much time to complete as Rouse was claiming, coupled with Duronio’s evidence that the Drakes had expressed their concerns to him about Rouse’s work hours.
[107] The former is just that – speculation. This Court cannot base a finding of just cause for dismissal, a very serious consequence for any employee, on rank speculation.
[108] The latter is irrelevant. The fact that the Drakes complained to their associate dentist about Rouse’s work hours proves nothing. And it is telling that Duronio himself, the man who worked with Rouse, did not share those concerns.
[109] Without proof of anything that could amount to just cause for dismissal, the issue of condonation does not need to be addressed.
[110] Second, on the issue of the reasonable notice period, I reject Rouse’s submission that it ought to be fixed at ten (10) months. The final written submissions filed by Rouse acknowledge that such a duration would be extraordinary in that it is 3.5 months longer than the average (6.5 months) in these circumstances, based on the research conducted on behalf of Rouse. Rouse submits that she works in an isolated area, and thus, it was very difficult to impossible to find comparable employment. The evidence at trial was thin on what job opportunities there are around Lion’s Head. I happen to know that it is an isolated little town along the northern part of the Bruce Peninsula, however, I am not about to extend the notice period on account of some invocation of judicial notice. Rouse submits further that a just cause dismissal with no positive reference letter made it difficult to find new employment; that, however, could be said in any case of immediate termination of an employee for just cause. Finally, Rouse submits that the Drakes’ allegations of incompetence and misconduct were “fabricated”. There is no evidence of that. They were weak and speculative. There is a difference.
[111] Third, on the issue of aggravated and/or punitive damages, I simply disagree with Rouse’s characterization of the manner of her termination. The Drakes are not “people persons”, I am sure. They made no attempt to be comforting or sensitive or even friendly to Rouse on the day of the firing. But that is often the case where employees are terminated for what the employer believes is just cause. Bosses do not say to employees, “thank you for stealing and cheating, best wishes, you are fired for just cause”, or words to that effect. There was nothing here that was “unduly insensitive”, or “completely disingenuous”, or “outrageously callous”, or conduct deserving of “public condemnation”, all expressions used in the written closing submissions filed on Rouse’s behalf. There is no evidence that Rouse was psychologically injured as a result of the termination, beyond of course the expected level of distress that any dismissed employee would feel. Finally, there is no basis to find an independent, actionable wrong committed by the Drakes.
[112] Fourth and lastly, on mitigation, I reject the Drakes’ position. Rouse’s evidence was essentially unchallenged on where she applied to for a job after the dismissal. She could not be expected to do anything more.
III. Conclusion
[113] Rouse was wrongfully dismissed. She was fired without any notice, pay in lieu of notice and without just cause.
[114] Judgment in favour of Rouse for the equivalent of eight (8) months of pay. Counsel can calculate the figure based on the directions given above in these Reasons.
[115] Prejudgment and postjudgment interest will apply. On costs, if they are not settled between the parties, counsel may file written submissions. Each submission shall be limited to two (2) pages in length, excluding attachments. Rouse shall file within ten (10) business days of the release of these Reasons, and the Drakes shall file within five (5) business days thereafter. There shall be no reply.
Conlan J.
Released: February 7, 2018
COURT FILE NO.: 14-114SR
DATE: 20180207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Susan Rouse
Plaintiff
- and -
Dr. Thomas G. Drake and Dr. David H. Drake, carrying on business as North Bruce Dental Office
Defendants
REASONS FOR JUDGMENT
Conlan J.
Released: February 7, 2018