2019 ONSC 3514

COURT FILE NO.: 21354/17

DATE: 20190 614

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Cheryl Hookimawillile Plaintiff – and – Payukotayno James and Hudson Bay Family Services Defendant

Counsel: Mallorie Malone and Cara Valiquette, for the Plaintiff Peter Doucet, for the Defendant

HEARD: February 13 and March 26, 2019

DECISION ON MOTION

Tremblay j.

Overview

The nature of the motion

[1] The plaintiff, Cheryl Hookimawillile, brought a motion for summary judgment on all the claims in the statement of claim.

[2] The plaintiff claims, among other things, that she was constructively dismissed by the defendant, Payukotayno James and Hudson Bay Family Services, on April 26, 2017, and that she is entitled to the compensation due to her for the entire unexpired term of the fixed-term contract of employment as well as punitive damages.

[3] The defendant opposes the motion for summary judgment. It maintains that the plaintiff was terminated for just cause on or about May 17, 2017. It submits that there are genuine issues requiring a trial.

Factual background

[4] The following facts are uncontested.

[5] The plaintiff began her employment with the defendant as an on-call worker in May of 2002. She continued working for the defendant and was hired on a permanent full-time basis on August 25, 2004.

[6] The plaintiff was promoted to the management position of Services Supervisor in May of 2011.

[7] Management employees were made to leave their union and operate on a series of short-term contracts beginning in 2012. The plaintiff became a non-unionized employee in 2012 and entered into a series of two-year contracts. The most recent contract, being the third in the series, began on April 1, 2016, and was to terminate on March 31, 2018.

[8] The plaintiff’s employment contract with the defendant provides for a remuneration of $81,564 and additional compensation for on-call after hours work. The plaintiff’s on-call earnings were in the range of $1,000 per month in addition to her other income.

[9] There is also a travel allowance of $4,500 and a retention allowance of $1,200. Finally, the employment contract provides for medical, dental, life and disability insurance benefits through a group benefits plan for the plaintiff and her family.

[10] The plaintiff also received pension contributions from the defendant in the amount of $7,800 per year.

[11] The employment contract does not contain any express or implied terms that would allow for an administrative suspension with or without pay or any other form of administrative suspension for any length of time.

[12] Section 3.6 of the defendant’s Personnel Policy Manual dealing with discipline provides that an employee may be suspended without pay if the letter of reprimand does not produce the desired results. The length of a disciplinary suspension depends on the infraction and can be a 1 day, 3 days or, in very serious cases, a 5-day suspension.

[13] The plaintiff returned to work from vacation on April 26, 2017.

[14] At 8:12 that morning, Mark Van Luven, Child Welfare Manager for the defendant, texted the plaintiff that he needed to meet with her immediately upon her return.

[15] Upon her arrival at the office, the plaintiff spoke with Mr. Van Luven, who advised her she was being suspended. Mr. Van Luven typed the suspension letter during the course of their conversation.

[16] Mr. Van Luven provided the suspension letter to the plaintiff. It reads as follows:

Please be advised that as a result of an investigation related to a child death, You [sic] are not to have contact with any agency staff if there are concerns or issues please only contact Mark Van Luven.

This investigation is ongoing and you are currently suspended without pay. The investigation is being completed both internally and by services in Ottawa. The duration of the investigation is undetermined so the period of suspension is undetermined.

[17] The plaintiff met with representatives of the defendant on May 5 and May 12, 2017. There was no mention that her suspension was for disciplinary reasons at either meeting. At the May 5, 2017 meeting, Charlene Reuben, Executive Director of the defendant, explained to the plaintiff that it is standard practice to suspend an employee without pay when conducting an investigation.

[18] On May 12, 2017, the plaintiff’s lawyer faxed a letter to the defendant stating that the plaintiff’s suspension without pay is a termination of employment by constructive dismissal and setting out, among other things, her entitlements as a result of the termination. The plaintiff also advised the defendant of her position and made various other requests.

[19] On May 25, 2017, the plaintiff’s health benefits, life insurance, and disability benefits for her and her family were terminated without notice to her.

[20] On May 26, 2017, the plaintiff received a termination letter dated May 17, 2017, from the defendant. It is signed by Charlene Reuben, Executive Director, and reads as follows:

As you are aware, you have been on administrative suspension while Payukotayno conducted an investigation into your conduct and performance. The agency has completed its investigation and have found the following:

• There was a discussion with you in March 2016 about complaints received from staff that you were borrowing money from subordinates and others. At this time, you were told to refrain absolutely from that practice and were offered Financial Counselling.
• In May 2016 it was brought the employers [sic] attention again that you were continuing to attempt to borrow money from staff therefore you were given a letter which indicated that you needed to participate in Financial Counselling by June 20 th , 2016.
• There was another letter dated July 13 th , 2016 where it was discussed where you had deposited a travel cheque into your account on June 23 rd and was to be deposited into your worker’s account for a client. However, there was a lengthy period of time before you actually completed the transfer to the worker. There was discussion also around the borrowing of money again as on July 2 nd 2016 you attempted to borrow money yet again from staff.
• There was also discussion about the possibility of breaching confidentiality by joining a teleconference while you were travelling with your husband. You also left the office early as your son was sick but the agency was later made aware that you were having issues with your spouse. At this time you acknowledged that you were having issues in your home. We agreed that it was affecting your job and that you would clearly need to do something about this. We offered assistance and asked you to reach out to us should we be able to offer any further assistance.
• There was additional information discovered while going through your email account as part of the investigation which unfortunately revalled [sic] that you had continued to borrow money from your colleagues and a foster parent despite all of the warnings and progressive discipline.

Payukotayno also has other serious concerns with respect to your ability to perform your role, namely to properly supervise staff by provide [sic] them with consultation, follow up and direction. More specifically, your oversight of specific incidents where a child has now died while under our care. You were made aware of the child’s window being secured and the child not being able to use it as an exit source and your lack of follow up to this same child’s one on one not being adequate [sic] provided by the service provider as per our service agreement.

There have also been issues surrounding your use of agency vehicles for your private purposes and having your family in the vehicle which goes against agency policy.

There are also discrepancies with your timesheets versus the time that you were away from the office.

Finally, there was the issue of the breach of confidentiality where you allowed one of your staff to bring her own child on a visit with other children in care.

Cheryl, as a result of all of these confirmed incidents of inappropriate behavior and insubordination, Payukotayno is left with no other possible conclusion but to terminate your employment summarily for cause. Because of this decision, you will not be paid any form of termination pay, severance pay or pay in lieu of notice.

You may make arrangements through me to attend the office at a time of your convenience to collect your personal belongings. Your record of Employment will follow shortly.

[21] The plaintiff started working for Service Ontario on November 11, 2017. The position was part-time. The last day for which the plaintiff received pay at Services Ontario was May 6, 2018. She earned a total of $12,768.73. Unlike her employment with the defendant, she was not exempt from paying income taxes.

[22] The plaintiff then worked temporarily for Elections Ontario and at Moosonee College assisting with the Childcare Centre before attending out-of-town training for a full-time position with Nishnawbe Aski Nation which she has held since July 2018.

[23] A report of the Callery Group dated July 26, 2018, indicates that the annual costs to the plaintiff to replace the loss of group benefits for family coverage would be $4,536.00 for Health Insurance, $372.00 for life insurance and $3,324.00 for disability coverage.

The law relating to summary judgment motions

[24] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if it is satisfied that there is no issue requiring a trial with respect to a claim or defence.

[25] In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, the Supreme Court of Canada stated that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[26] If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure. She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[27] On a summary judgment motion, the evidence need not be equivalent to that of a trial but must be such that the judge is confident that she can fairly resolve the dispute.

[28] The onus of demonstrating that there are no genuine issues requiring a trial rests with the moving party. The moving party must lead evidence demonstrating that a trial is unnecessary to truly, fairly and justly resolve the issues. It is only after the moving party has met its onus that the burden shifts to the responding party to show that there is a genuine issue requiring a trial: Genivar v. Taylor, [2012] O.J. No. 547 at paragraph 21.

The issues

[29] I must decide whether I am able to reach a fair and just determination on the merits on a motion for summary judgment with respect to the following issues:

1. Did the defendant constructively dismiss the plaintiff? (i) What was the nature of the April 26, 2017 suspension? (ii) Did the defendant unilaterally breach the employment contract? (iii) If so, did the breach of the employment contract substantially alter an essential term of the contract?
2. Did the defendant dismiss the plaintiff for just cause?
3. If the plaintiff was dismissed without just cause, what is the appropriate quantum of damages to which the plaintiff is entitled?
4. Did the plaintiff act reasonably to mitigate her losses?
5. Is the plaintiff entitled to punitive damages?

Analysis

Issue #1: Did the defendant constructively dismiss the plaintiff?

The law

[30] In Potter v. New Brunswick Legal Aid Services Commission, [2015] 1 S.C.R. 500, 2015 SCC 10, the Supreme Court of Canada set out the test for constructive dismissal from paragraphs 30 to 43.

[31] When the conduct of an employer evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal. The employer’s act is referred to as “constructive dismissal”: Potter at para. 30.

[32] There are two branches of the test that have emerged to determine whether the employer’s conduct evinced an intention no longer to be bound by the contract:

The first branch

The court must first identify an express or implied contract term that has been breached, and then determine whether that breach was sufficiently serious to constitute constructive dismissal. The employer’s unilateral change must be found to constitute a breach of the employment contract, and if it does constitute such a breach, it must be found to substantially alter an essential term of the contract. In practice, once it has been objectively established that a breach has occurred, the court must ask whether, at the time the breach occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. Typically, the breach in question involves changes to the employee’s compensation, work assignments or place of work that are both unilateral and substantial. The question is one of degree: Potter at para. 32, 34 and 39

The second branch

An employer’s conduct will also constitute constructive dismissal if the employer’s conduct when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to an actual specific substantial change in compensation, work assignments, or so on that constitutes a substantial breach. The focus is on whether a course of conduct pursued by the employer “evinces an intention no longer to be bound by the contract. A course of conduct that does evince such an intention amounts cumulatively to an actual breach”: Potter at para. 42

Analysis

[33] In deciding whether the plaintiff was constructively dismissed by the defendant on April 26, 2017, I must first determine the nature of the suspension of April 26, 2017.

(i) What was the nature of the April 26, 2017 suspension?

[34] The plaintiff submits that the April 26, 2017 suspension was an unauthorized administrative suspension without pay. While the defendant eluded that question to a large extent in the materials it has filed, it took the position at the hearing of the motion that it was a disciplinary suspension.

[35] The evidentiary record before me leaves no doubt that the April 26 th , 2017 suspension was not a disciplinary suspension. It was clearly an administrative suspension without pay. The evidence in this regard includes the following:

• In his affidavit sworn December 17, 2018, Mr. Mark Van Luven does not state that the plaintiff was suspended for disciplinary reasons. He deposes that it is correct that he spoke with the plaintiff on April 26, 2017, and typed the suspension letter at the same time. He further states that he received direction and instructions that the plaintiff was to be suspended pending further investigation based on concerns already known.
• While Mr. Van Luven’s letter of April 26, 2017 does not specifically state the nature of the suspension, it states that it is in relation to an investigation related to a child’s death, that it is without pay and that it is for an undetermined period of time. It does not make any reference to discipline.
• In an e-mail to Mark Van Luven dated May 9, 2017, detailing her meeting with the plaintiff, Charlene Reuben reports that “Cheryl did not understand why she was being suspended without pay. I explained to Cheryl when conducting an investigation it is standard practice and once we are done we will determine if you were entitled to pay dependant on the outcome.” There is, again, no mention that the suspension was for disciplinary reasons nor is there any reference to the disciplinary process.
• The defendant’s termination letter dated May 17, 2017, specifically states that “ you have been on administrative suspension while Payukotayno conducted an investigation into your conduct and performance.” (Underline added).
• Section 3.6 of the defendant’s Personnel Policy Manual dealing with discipline provides that an employee may be suspended without pay if the letter of reprimand does not produce the desired results. The length of a disciplinary suspension depends on the infraction and can be a 1 day, 3 days or in very serious cases, a 5-day suspension. There is no provision for a disciplinary suspension for an undetermined period of time while an employee is under investigation.
• The Services Canada records detail a conversation with Mr. Van Luven of June 22, 2017. It indicates that the “employer had not yet done a formal disciplinary process as of yet” and that “employer was planning disciplinary action when client’s evaluation was to occur in July 2017 as they were already aware about issues with her performance prior to the child’s death investigation…”

[36] I, therefore, conclude that there is no genuine issue for trial that the April 26, 2017 suspension of the plaintiff by the defendant was an administrative suspension without pay. This brings me to the first step of the first branch of the Potter test.

(ii) Did the defendant unilaterally breach the employment contract?

[37] The Supreme Court addressed the particularities of cases involving administrative suspensions in paragraph 41 of Potter:

41. The uniqueness of the application of this first branch of the test is evident in cases involving administrative suspensions. In all cases, the primary burden will be on the employee to establish constructive dismissal, but where an administrative suspension is at issue, the burden will necessarily shift to the employer, which must then show that the suspension is justified. If the employer cannot do so, a breach will have been established, and the burden will shift back to the employee at the second step of the analysis.

[38] As discussed above, it is uncontested that the contract of employment between the parties and the defendant’s Personnel Policy Manual do not provide for administrative suspensions. The Personnel Policy Manual only provides for disciplinary suspensions without pay up to a maximum of 5 days in very serious cases.

[39] Yet, on April 26, 2017, the plaintiff was placed on an administrative suspension without pay for an undetermined period of time by the defendant. This was a unilateral move on the part of the defendant. The suspension letter stated that the administrative suspension was to permit an investigation related to a child’s death. However, the defendant also conducted an investigation into the plaintiff’s conduct and performance.

[40] On May 26, 2017, thirty-one days after being administratively suspended without pay, the plaintiff received a letter of termination dated May 17, 2017, which had been mailed on May 24, 2017, by registered mail.

[41] I find that the unauthorized administrative suspension of the plaintiff by the defendant was clearly in breach of the employment contract as it contains no provision for such suspensions.

[42] Interestingly, the defendant did not even attempt to meet its burden and show that the suspension was reasonable and justified in its motion materials and at the hearing of the motion. It took the view, instead, that the suspension was disciplinary in nature, a contention that I have already rejected.

[43] In any event, it is highly unlikely that the defendant would have been able to meet its burden as a suspension without pay will only be justified in exceptional cases: Industrial Alliance Life Insurance Co. v. Cabiakman, [2004] 1 S.C.R. 427, 2004 SCC 29 at para 62. In my view, the case at hand is clearly not one of those exceptional cases.

[44] In conclusion, the defendant has not shown that the administrative suspension was justified and the unilateral breach of the employment contract has thereby been established.

(iii) Did the breach of the employment contract substantially alter an essential term of the contract?

[45] The Court of Appeal in Potter set out what was referred to by the Supreme Court in its final decision as a “useful list of factors” to consider the question of whether a suspension constitutes a fundamental or substantial change to an employee’s contract of employment:

1. the duration of the suspension;
2. whether someone was appointed to replace the suspended employee;
3. whether the employee was asked for his or her keys;
4. whether the employee continued to be paid and receive benefits;
5. whether there is evidence that the employer intended to terminate the employee at that time; and
6. whether the employer suspended the employee in good faith, for example, for bona fide business reasons.

[46] The indefinite administrative suspension without pay of the plaintiff by the defendant was, in my view, a fundamental and substantial change to the plaintiff’s contract of employment. It prevented the plaintiff from fulfilling her responsibilities, and it deprived her of an income, two elements that are at the very core of an employment contract. Furthermore, the plaintiff had no idea for how long the suspension would be in effect as she was simply informed that it would be for an undetermined period of time.

[47] The letter from the plaintiff’s counsel to the defendant dated May 12, 2017, leaves no doubt that the plaintiff considered that the defendant had terminated her employment. In my view, a reasonable person in the same situation as the plaintiff would also have felt that the essential terms of the employment contract were being substantially changed by the defendant.

[48] I find support in my conclusion that the administrative suspension without pay was a fundamental and substantial breach of the employment contract in the following comments by the Supreme Court of Canada in Potter at para. 106:

106 I would suggest that in most cases in which a breach of an employment contract results from an unauthorized administrative suspension, a finding that the suspension amounted to a substantial change is inevitable. If the employer is unable to show the suspension to be reasonable and justified, there is little chance, to my mind, that the employer could then turn around and say that a reasonable employee would not have felt that its unreasonable and unjustified acts evinced an intention no longer to be bound by the contract. Any exception to this rule would likely arise only if the unauthorized suspension was of particularly short duration.

Conclusion

[49] The two steps of the first branch of the test for constructive dismissal set out in Potter having been met, I conclude that the unauthorized administrative suspension without pay of the plaintiff by the defendant for an undetermined period of time on April 26, 2017, constituted a constructive dismissal.

Issue #2: Did the defendant dismiss the plaintiff for just cause?

[50] The defendant claims that it formally dismissed the plaintiff for just cause on or about May 17, 2017. The issue as to whether the grounds raised by the defendant in that letter existed and constituted just cause for termination would undoubtedly require a trial to be properly adjudicated. However, I do not find that this is necessary since, for the reasons that follow, I have concluded that the defendant could not retrospectively dismiss the plaintiff for cause in the circumstances of this case.

[51] The defendant did not formally dismiss the plaintiff on April 26, 2017. I have already determined that the defendant constructively dismissed the plaintiff on that day by administratively suspending her without pay. The defendant was advised of that fact by the May 12, 2017 letter it received by fax from the plaintiff’s lawyer. The defendant nonetheless sent the termination with cause letter dated May 17, 2017, to the plaintiff.

[52] The defendant might have been justified in doing so if it had not known about a misconduct warranting summary dismissal at the time of the constructive dismissal and had subsequently discovered it.

[53] However, this is not the case. The acts on which the defendant relies to justify the termination of the plaintiff’s employment in its letter of May 17, 2017, relate to matters of job performance and conduct that were already known to the defendant at the time of the constructive dismissal or that would have been known to the defendant had it acted with due diligence in its supervision of the plaintiff. Simply put, the defendant is not relying on a subsequently discovered act of misconduct that would justify the ultimate sanction of summary dismissal.

[54] The records from Service Canada are quite telling in this regard. They clearly demonstrate that the grounds relied upon by the employer to justify the termination of the plaintiff were long-standing and known by the defendant well before it constructively dismissed the plaintiff. They include the following comments attributed to Mr. Van Luven:

• “The events with the child’s death would not have resulted solely in client’s dismissal”.
• “The plan was to do a performance review and not to renew her contract that was due next March 2018 as it is renewed every two years. Employer was going to create a training plan; however, employer dismissed her instead as level of incompetence is such a high liability they could not have her return.”
• “Employer decided to dismiss the client now. Her level of incompetence is years long that was not addressed by the employer. Incompetence and issues were documented by previous Directors and no Director had followed through with the client. Much of the failure to follow through is culture related such as talking and suggesting rather than following through with a formal disciplinary process.”

[55] The evidentiary record before me allows me to conclude that the defendant formally dismissed the plaintiff by way of the termination letter of May 17, 2017, in an attempt to justify its earlier constructive dismissal.

[56] The suspension letter dated April 26, 2017, stated that the suspension without pay was related to an ongoing investigation into a child’s death. Yet, the investigation was not limited to the events surrounding the child’s death. It shifted to an examination of the plaintiff’s entire work history and focused on performance issues. This demonstrates that the defendant was, in fact, trying to uncover grounds for dismissal retrospectively.

[57] In my view, the defendant cannot be allowed to retrospectively dismiss the plaintiff with cause on grounds that were known or ought to have been known to it when it constructively dismissed her.

[58] As eloquently stated in Doucet v. Spielo Manufacturing Inc., 2011 NBCA 44, 2011 CarswellNB 227, “the law should not encourage employers to assume the role of employment archaeologists, looking through the remnants of an employee’s work history, in an effort to unearth grounds for dismissal.”

Issue #3: What is the appropriate quantum of damages to which the plaintiff is entitled?

The law

[59] An employer may not repudiate an employment contract by fundamentally breaching the agreement and then claim the advantage of a termination notice clause found within the contract: Ebert v. Atoma International Inc., [1997] O.J. No. 1823 at para. 22.

[60] The proper measure of damages for an employer’s breach of a fixed-term contract is the compensation due to him or her for the entire unexpired term of the contract: Davidson v. Allelix Inc. (1991), 7 O.R. (3d) 581 (Ont. C.A.), ; Spark v Generex Pharmaceuticals Inc., [2003] O.J. No. 675, 2003 CarswellOnt 603 (Ont. C.A.), at para. 3; Potter at para. 62.

Analysis

[61] As this was a fundamental breach of the employment contract by the defendant, I find that it cannot rely upon the termination clause of the contract it repudiated.

[62] Furthermore, I note that the defendant has not argued that the plaintiff’s entitlement to damages should be reduced or otherwise limited as a result of its claim that grounds justifying termination for cause existed at the time of the plaintiff’s constructive dismissal.

[63] I find that the plaintiff is entitled to her remuneration and benefits from May 3, 2017, when the defendant stopped paying her until March 31, 2018, the last day of the fixed-term contract of employment, less any income she has earned or that she should have earned in mitigation.

[64] The plaintiff has provided a calculation of her damages for the 49 weeks remaining on the fixed term employment contract at the time of termination of employment. I have considered it and determined that it is supported by the evidence. I am, therefore, adopting it. It is as follows:

	Annual	49 weeks
Base Salary:	$81,564.00	$76,858.38
Employer Pension contribution	$7,800.00	$7,350.00
Retention Allowance (flat rate)	$1,200.00	$1,200.00
Annual travel (flat rate)	$4,500.00	$4,500.00
Health Insurance	$4,536.00	$4,274.31
Life Insurance	$372.00	$350.53
Disability Insurance	$3,324.00	$3132.23
On-call pay	$12,000.00	$11,307.69
TOTAL		$108,973.15

Conclusion

[65] The plaintiff is, therefore, entitled to $108,973.15 less any income that she has earned or that she should have earned in mitigation plus applicable interest.

Issue #4: Did the plaintiff act reasonably to mitigate her losses?

The law

[66] As a general principle, an employee has a duty to mitigate his or her damages. The court shall take into consideration a number of factors such as the age and qualifications of the employee as well as the market for services analogous to those performed under the term of the employment contract: Potter v. New Brunswick (Legal Aid Services Commission), [2011] N.B.J. No. 361, 2011 NBQB 296 at paras. 69-71.

[67] The employee is entitled to refuse employment that is not comparable in salary or responsibility without being penalized for failing to mitigate, or if she accepts this form of employment her damages may not be reduced: MacKenzie v. 1785863 Ontario Ltd. (c.o.b. Alex Wilson Coldstream Ltd.), [2018] O. J. No. 3177, para 13.

[68] It is well-established that the defendant employer had the onus of showing that the employee’s mitigation efforts were unreasonable and that similar employment was available if a proper effort had been made.

[69] Employment insurance benefits received are not part of mitigation to be deducted from an award: Jack Cewe Ltd. v. Jorgenson, [1980] 1 S.C.R. 812, .

Analysis

[70] Based on the evidentiary record before me, I am able to make the following determinations:

• It would not be reasonable to expect the plaintiff to move from Moosonee on short notice to satisfy her mitigation efforts in light of the fact that her son has several serious health conditions, namely Scoliosis, Autism, severe ADHD, severe Asthma and allergies and Psoriatic Arthritis.
• The plaintiff did not have to accept the position at Services Ontario on November 11, 2017, as it was not comparable in salary or responsibility to her position with the defendant. The $12,768.73 she earned from that employment shall therefore not be deducted from her damages.

[71] I find, however, that the evidentiary record does not allow me to determine in this motion for summary judgment if the plaintiff made reasonable efforts to mitigate her losses.

[72] While the defendant did not lead evidence showing that the plaintiff’s efforts were unreasonable and that similar employment was available if a proper effort had been made, I find that the plaintiff’s own evidence is vague and contradictory on this issue.

[73] For instance, the plaintiff deposes that she found that “there were few jobs in my field or related to my experience in Moosonee”. This suggests that there are actually some similar positions available in Moosonee.

[74] Furthermore, in her affidavit sworn August 2, 2018, the plaintiff deposes that shortly after her dismissal, she began calling around to various agencies and individuals to seek employment opportunities and also formally applied for numerous jobs.

[75] However, at her examination for discovery and subsequent cross-examination on her affidavits, the plaintiff indicated that she only started making any effort to find alternative employment in October 2017, five months after her termination.

[76] I find that the plaintiff’s own evidence raises the following genuine issue for trial in regard to mitigation: Would the plaintiff have been able to secure one of the few similar jobs available in Moosonee had she not waited five months before trying to find employment?

Conclusion

[77] I find that the need for a trial to decide this very narrow issue can be avoided by using my powers under Rule 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure. I am, therefore, ordering a mini-trial pursuant to Rule 20.04(2.2) where I will hear evidence from the plaintiff and a representative from the defendant if it so requests. I am satisfied that a mini-trial on this issue will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Issue #5: Is the plaintiff entitled to punitive damages?

[78] There is clearly conflicting evidence on some of the main factors that may give rise to punitive damages. A trial of this issue will be required.

[79] Examples of conflicting evidence on factors raised by the plaintiff in support of her claim for punitive damages include:

• That the defendant told the plaintiff she would or could be charged as a result of the death of the child;
• That the defendant suggested that the plaintiff was personally responsible on some level for the death of a child in care and advised co-workers that she was being investigated in that regard;
• That the defendant intentionally hid from the plaintiff any information about the investigation into the child’s death;
• That the plaintiff was terminated for tactical reasons, including to prevent her from having her opinion heard during the investigation into the child’s death;
• That the defendant delayed providing the plaintiff with her Record of Employment;
• The reasons for the defendant not returning personal effects to the plaintiff.

[80] In the circumstances, I am not satisfied that the summary judgment process allows me to reach a fair and just determination on the merits of the issue of the plaintiff’s entitlement to punitive damages. A trial will, therefore, be required to decide that issue.

Conclusions

[81] I find that the defendant constructively dismissed the plaintiff on April 26, 2017. The defendant could not retrospectively dismiss the plaintiff for cause.

[82] As a result, the plaintiff is entitled to summary judgment in the amount of $108,973.15 less any income she should have earned in mitigation plus applicable interest.

[83] I am ordering a mini-trial pursuant to Rule 20.04(2.2) of the Rules of Civil Procedure where I will hear evidence from the plaintiff and a representative from the defendant if it so requests on the issue of whether the plaintiff’s mitigation efforts were reasonable and whether similar employment was available if a proper effort had been made.

[84] I am directing that there be a trial on the issue of whether the plaintiff is entitled to punitive damages.

Costs

[85] The issue of the costs of this motion is reserved until the mini-trial pursuant to Rule 20.04(2.2) of the Rules of Civil Procedure has been completed.

The Honourable Mr. Justice Robin Y. Tremblay

Released: June 14, 2019

2019 ONSC 3514 COURT FILE NO.: 21354/17 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Cheryl Hookimawillile v. Payukotayno James and Hudson Bay Family Services decision on motion Justice R.Y. Tremblay Released: June 14, 2019