OVERVIEW

[1] On March 6, 2014, Mark Render was terminated from his employment as the operations manager of the Mississauga office of ThyssenKrupp Elevator (“TKE”). Mr. Render was 51 years of age. He had worked at TKE and its predecessor company for 30 years before the termination of his employment. Mr. Render claims that the termination was without cause.

[2] TKE argues that it had just cause to terminate Mr. Render’s employment. On February 28, 2014, there was an incident in the workplace involving Mr. Render and a co-worker, Linda Vieira. Ms. Vieira alleges that Mr. Render slapped her buttocks. TKE argues that this conduct can be characterized as a sexual assault. The incident was investigated by TKE, following which Mr. Render’s employment was terminated.

[3] Mr. Render does not deny that his hand touched Ms. Vieira’s buttocks. He described the touching as accidental and denies there was a sexual component. Mr. Render also takes the position that the termination of his employment was not proportionate or in accordance with the company’s Progressive Discipline Policy.

[4] For the reasons that follow, I find that the termination of Mr. Render’s employment was justified in all the circumstances, and I dismiss the Plaintiff’s action.

THE ISSUES

[5] There are two primary issues in this case:

a) Did TKE have just cause to summarily dismiss Mr. Render?

b) What is the reasonable notice period?

ANALYSIS

a) Dismissal for Cause

i) The Contextual Analysis

[6] Whether the employer is justified in dismissing an employee for cause requires an assessment of the context of the alleged misconduct to determine whether the misconduct violates an essential condition of the employment contract, breaches the faith inherent in the work relationship or is fundamentally inconsistent with the employee’s obligations to his employer: McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, at para. 48.

[7] Underlying the contextual analysis is the principle of proportionality. An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed: McKinley v. BC Tel, at para. 53.

[8] The contextual analysis has been described as follows:

Cause is determined by an objective contextual and proportional analysis. A finding of misconduct does not, by itself, give rise to just cause; the question is whether, in the circumstances, the behaviour is such that the employment relationship could no longer viably subsist. There must be a balance struck between the severity of an employee’s misconduct and the sanction imposed. The factors considered include the employee’s tenure, employment record and the seriousness of the misconduct: Foerderer v. Nova Chemicals Corporation, 2007 ABQB 349, 81 Alta. L.R. (4th) 105, at para. 151.

[9] Counsel for the Defendant argues that sexual assault is necessarily just cause, and it is not necessary to consider the McKinley contextual analysis. In support of this position, the Defendant relies on Gonsalves v. Catholic Church Extension Society of Canada. In that case, the Plaintiff/employee made a number of inappropriate sexually charged comments to a younger female co-worker. There was also evidence of a physical assault when the Plaintiff came up behind the woman and grabbed her in a hug while he fondled her breasts. The Court of Appeal held that the employer had just cause to terminate the employment of the Plaintiff. The court stated:

The allegations against Mr. Gonsalves were very serious, including the criminal act of sexual assault. As a generality, it seems no more appropriate to address sexual assault by a warning than to issue a warning to an employee caught stealing money, even if seven months ago. And here, the employee was a supervisor who by his own admission knew the conduct complained of was unacceptable and conceded that he did not need to be told so: Gonsalves v. Catholic Church Extension Society of Canada (1998), 1998 CanLII 7152 (ON CA), 164 D.L.R. (4th) 339 (Ont. C.A.), at para. 15.

[10] The court goes on to state that “serious misconduct, which is manifestly inexcusable, may make a warning totally inappropriate to an employer who is satisfied that the misconduct has occurred”: Gonsalves v. Catholic Church Extension Society of Canada, at para. 17 (emphasis added). The court considered the context of the allegations before finding that the conduct warranted summary dismissal.

[11] I am of the view that Gonsalves does not stand for the proposition that if there is a finding of sexual assault, it is not necessary to carry out the contextual analysis set out in McKinley. I note that Gonsalves was decided before McKinley, which rejected the “absolute unqualified rule” that any dishonesty was sufficient grounds for immediate dismissal.

[12] The contextual analysis requires an examination of the particular facts and circumstances and considers the nature and seriousness of the employee’s conduct to determine whether it is sufficiently egregious so as to violate or undermine the employment relationship: McKinley v. BC Tel, at para. 57. As a result, it is necessary to review the factual background in detail.

ii) The Factual Background

Mr. Render’s Employment

[13] Mr. Render’s father operated an elevator business, York Elevators Limited. Mr. Render started working at his father’s company in 1984 as a helper/apprentice. York Elevators was purchased by TKE in 2002. At the time of purchase, Mr. Render was the President of York Elevators. Mr. Render worked at TKE from 2002 until his termination in 2014. There is no evidence of any performance or disciplinary issues during the period of his employment.

[14] Although there was no evidence of a performance or disciplinary issue, in December 2012, TKE was concerned that Mr. Render may have been working a second job. TKE conducted surveillance over the course of three days in December 2012. The surveillance generally took place over the lunch break. Mr. Render was seen going to his gym. Although he may have taken more than the usual time for lunch, TKE did not say anything to Mr. Render.

[15] Mr. Render believes that TKE was looking for ways to terminate his employment, and that it used the incident involving Ms. Vieira as the excuse to do so. TKE denies that it intended to terminate Mr. Render’s employment. Based on the evidence, Mr. Render was a valuable member of TKE up to the termination of his employment.

[16] In 2005, Mr. Render was promoted to Operations Manager of the Mississauga office of TKE. He continued to hold this position until his termination. As Operations Manager, Mr. Render was responsible for the service operations of the company. At the time of his termination, four individuals directly reported to him: Kevin McRae, Larry Sullivan, Mike McCartan and Joe Ferrusi. About 40 technicians and mechanics indirectly reported to him. Mr. Render was involved in the hiring and training of employees.

The Office Environment

[17] In the Mississauga office there were four account managers, one of whom was Linda Vieira. The other account managers working in the Mississauga branch were, Leo Daniel, Mario Mendez and Louis Sideris. Ms. Vieira started with TKE in October 2005. The account managers, including Ms. Vieira, reported directly to the office manager, Gary Platt. Although Ms. Vieira did not directly report to Mr. Render, if Mr. Platt was away, Mr. Render was responsible for the office. Ms. Vieira was required to work with Mr. Render and other operations employees to carry out her responsibilities.

[18] The Mississauga branch was a small office. Of the 13 people working in the office, ten were male and three were female. Everyone socialized at work and there were frequent lunches and other events. Mr. Render described the office as being very social. There was regular joking and bantering in the office. Mr. Render testified that he fostered the friendly and joking environment to reduce stress at work.

[19] The office environment sometimes included inappropriate jokes and conduct. There was evidence of sexist and offensive comments made by Mr. Daniel to or about Ms. Vieira. The male workers at TKE would occasionally tap each other on the buttocks and say “good game”, like they were football players. The women employees, including Ms. Vieira, were not included in this activity.

[20] Mr. Render testified that he thought he and Ms. Vieira were friends. They got along well and would engage in joking and bantering with each other. Mr. Render and Ms. Vieira shared an interest in working out. They occasionally ran into each other at the gym. According to Mr. Render, she once asked him to feel her biceps and touch her abs. Ms. Vieira denies that she invited Mr. Render to feel her muscles.

[21] Mr. Render testified that Ms. Vieira would sometimes make joking comments about his height. She also teased him by saying that she thought his brother was better looking than him. He testified that on at least one occasion she jokingly punched him in the arm. Ms. Vieira confirmed that this conduct had taken place. Although Ms. Vieira participated in some of the bantering, she testified that she did so because she did not want to be ostracized. She testified that she just wanted to be respected and do her job.

[22] There is an e-mail exchange between Mr. Render and Ms. Vieira dated May 14, 2013. She asked if he would like her to bring anything to him at the hotel where he was staying. He wrote back and said, “That’s a loaded question.” On another occasion, she received a call from Mr. Daniel and was asked to bring a clean shirt to a job site because Mr. Render was covered in oil/grease. When she arrived, she saw Mr. Render in the parking lot with his shirt off. She parked away from him. In the e-mail exchange, Mr. Render said, “I heard you were afraid to see me topless”. She said, “not afraid, just inappropriate”. In an e-mail exchange on June 2013, she called him “muscle man :)”.

[23] Mr. Render introduced into evidence a photograph of an apron which was a gift that had been given to him by Ms. Vieira at a company holiday party. The apron had an image of the body of a muscular man in underwear. Ms. Vieira admitted that she gave this gift to Mr. Render. He did not feel this was inappropriate and considered it a joke. She denied giving any other gifts to Mr. Render.

[24] Although Mr. Render and Ms. Vieira would occasionally joke, there had not been any inappropriate touching before the incident in question. Both confirmed in their evidence that Mr. Render had never touched Ms. Vieira on her buttocks before and Ms. Vieira had not given him permission to touch her in this manner.

The Anti-Harassment Policy

[25] Shortly before the incident, TKE introduced an Anti-Harassment and Anti-Discrimination Policy. On February 20, 2014, the policy was presented to the employees by way of a PowerPoint presentation, followed by a discussion. Both Mr. Render and Ms. Vieira attended the presentation. The Policy set out a new “zero tolerance” in matters of discrimination and harassment. The Policy provides that sexual advances and touching is considered to be sexual harassment and goes on to state that any employee who engages in conduct contrary to the Policy will be subject to appropriate discipline, up to and including termination of employment.

[26] TKE also had a Progressive Discipline Process Policy which was implemented on October 18, 2011 and revised on August 5, 2012. The Policy provides that if an employee violates a company policy there is typically a system of progressive discipline which progresses from coaching, a verbal warning, a written warning, final warning, suspension and, finally, termination. The Policy specifically provides that if the behaviour or concern is of a serious nature, the progressive discipline can be accelerated to match the violation.

[27] There was evidence at trial that TKE did not always apply its policies in a consistent manner. In cross-examination, Ms. Vieira described conduct on the part of Mr. Sideris which could be considered a breach of the Anti-Harassment Policy; however, he was not disciplined by TKE. Mr. Render testified that he was aware of at least one prior occasion when TKE terminated an employee following a single act of misconduct without proceeding through the stages of discipline.

[28] Mr. Render was a supervisor at TKE. He was required to know and implement the company policies. He testified that he was familiar with both the Anti-Harassment and Progressive Discipline policies before the incident which occurred on February 28, 2014.

The Incident - February 28, 2014

[29] The incident in issue took place on February 28, 2014, around 2:00 p.m., in the office which was shared by Mr. Sullivan and Mr. Ferrusi. They were both present at the time of the incident. Also present were Mr. Daniel, Mr. Mendez, Ms. Vieira and Mr. Render. Mr. Ferrusi and Mr. Render testified for the Plaintiff, and Ms. Vieira and Mr. Daniel testified for the Defendant. Although Mr. Sullivan and Mr. Mendez continue to be employed with TKE, they were not called by the Defendant to give evidence at trial.

[30] Mr. Render testified that when he returned from lunch that day, he entered Mr. Ferrusi and Mr. Sullivan’s office. He had to speak with Mr. Ferrusi about a work matter. When he entered the office, Mr. Ferrusi was on the phone. Mr. Sullivan was at his desk talking to Mr. Daniel. Mr. Render testified that Ms. Vieira was already in the office when he entered.

[31] Ms. Vieira testified that she entered Mr. Ferrusi’s office to speak with him about a work-related matter. According to her, when she went into his office Mr. Render was already there. She recalls him speaking with Mr. Ferrusi. She stood beside Mr. Render and waited her turn to speak with Mr. Ferrusi.

[32] According to Mr. Render, after he entered the office Mr. Daniel made a comment to Ms. Vieira. She had a spot on her shirt, and he asked if she was “lactating”. Mr. Daniel and Ms. Vieira both confirmed that Mr. Daniel made this comment, although they could not recall when the comment was made. Mr. Daniel admitted the comment was immature. Mr. Ferrusi testified that he heard Mr. Daniel say something about Ms. Vieira lactating. He said the group in his office was loud and joking and disturbing his phone call.

[33] Mr. Render testified that while he and Ms. Vieira were waiting to speak to Mr. Ferrusi, she made a comment about the work boots he was wearing. Mr. Render believes this was a reference to the fact that a few days earlier he had commented that the boots she wore to a work site were inappropriate because they did not have steel toes. According to Mr. Render, Ms. Vieira stood on the toes of his boots. She leaned into him and said, “you’re short.” None of the others who were present at the time of the incident testified that Ms. Vieira stood on Mr. Render’s boots.

[34] Ms. Vieira denied that she stepped on Mr. Render’s boots or made any comment about the boots he was wearing. She stated that as she waited to speak to Mr. Ferrusi, she stood beside Mr. Render. She was wearing high heels. She stood as tall as she could and looked down on Mr. Render. She testified that this was a non-verbal joke about his height. Mr. Ferrusi testified that he heard Ms. Vieira say to Mr. Render “you’re short.”

[35] I find that Ms. Vieira made a verbal or non-verbal joke about Mr. Render’s height. Mr. Render testified at trial that he was not bothered by Ms. Vieira’s joke. He initially testified that he did not feel she was being disrespectful. His discovery evidence was put to him in cross-examination. On discovery he testified that he thought Ms. Vieira was being disrespectful and sarcastic. He felt belittled. (Q. 201 – 205.) At trial, Mr. Render ultimately agreed that he found Ms. Vieira’s joke about his height to be disrespectful. This is consistent with the evidence of Mr. Daniel, who stated that Mr. Render did not appreciate jokes about his height.

[36] According to Mr. Render, after Ms. Vieira made the comment about his height, he turned towards her. They were about 12 inches apart. He said “yes I am” and crouched down. He then said “and this is how short I am when I take my boots off”. He went down onto his knees in front of her. He testified that as he was crouching down his face was fairly close to her breasts for two to three seconds. Mr. Render testified that everyone including Ms. Vieira was laughing as he went down onto his knees.

[37] Ms. Vieira’s evidence is quite different. She stated that after she made her non-verbal joke about his height, Mr. Render crouched down in front of her. He moved his face to her breast level. He was only one inch away from her breasts. He then moved his head back and forth and made a motorboat sound (“motorboating”). As he did so, he moved towards her and backed her up against the wall. According to Ms. Vieira his face remained one inch from her breasts as they moved towards the wall. She denies that Mr. Render went down on his knees.

[38] Mr. Ferrusi was watching this exchange as he was on the phone. He confirmed that after he heard Ms. Vieira’s quip about Mr. Render’s height, he saw Mr. Render go down on his knees in front of her. He testified that Mr. Render did not have his face at Ms. Vieira’s breast level, and he was not moving his head from side to side or making any noises. Mr. Daniel testified that he was talking to Mr. Sullivan while this was going on. At one point he looked over and saw Mr. Render’s face close to Ms. Vieira’s breasts and his head was going from side to side. He then turned back to Mr. Sullivan to continue his conversation.

[39] The evidence from both Ms. Vieira and Mr. Daniel that Mr. Render had his face close to Ms. Vieira’s breasts and was moving his head back and forth requires further comment. Ms. Vieira wrote an e-mail to herself and her husband immediately after the event. In the e-mail she does not refer to the “motorboating”. She states that she was laughing when he was invading her personal space. This e-mail will be commented on later in these reasons.

[40] Mr. Daniel testified that he saw the “motorboating” action, and that it was not something he had seen before. He thought it was shocking conduct. He then turned back to Mr. Sullivan to continue his conversation. It does not seem likely that after seeing such an unusual and shocking event that he would turn back to continue his conversation with Mr. Sullivan. I also note that there is no reference to the “motorboating” in the statement he provided to his employer following the incident.

[41] Mr. Daniel’s testimony at trial may have been influenced by the fact that Ms. Vieira gave an interview to the press during the trial which was seen by Mr. Daniel before he gave his evidence. In the statement, Ms. Vieira described the “motorboating” action. Mr. Daniel’s testimony on this point is very similar to Ms. Vieira’s description in the interview.

[42] Returning to the events of February 28, Mr. Ferrusi ended his phone call. Mr. Render told the others to leave the office so he could talk to Mr. Ferrusi. Mr. Render testified that as he was getting up from his knees, he made a sweeping gesture with his right hand. He testified that he meant to tap Ms. Vieira on her left hip as he was getting up. He either lost his balance or she turned, and his hand came into contact partly on her left hip and buttock. As he made the sweeping gesture he said “get outta here”. After his hand came into contact with her buttocks, he said “good game”.

[43] Mr. Render admitted that he did not have Ms. Vieira’s consent to touch either her hip or buttocks. He denied there was any sexual component to the touching. Although he admits his hand partially come into contact with her buttocks, he does not believe this touching was sexual assault or sexual harassment.

[44] Mr. Ferrusi saw this incident as it occurred in front of him. He testified that as Mr. Render got up, he tapped her on the side and said, “good game”. It appeared to him that Mr. Render’s hand came into contact with her hip and partially her buttocks. He said it was a light tap and the force was a 1 out of 10 in severity. I note that in his will-say statement put to him on cross-examination, he said Mr. Render slapped Ms. Vieira’s buttocks.

[45] Mr. Daniel did not see the contact between Mr. Render and Ms. Vieira. As noted above, he had turned back to continue his conversation with Mr. Sullivan. He testified that he heard a loud slap. He looked up and saw Ms. Vieira with her hands up to her face. He asked Mr. Render if he had hit “her that hard?”

[46] Mr. Mendez was not called as a witness by either party; however, his will-say statement was admitted into evidence. The parties agreed that the statement was introduced into evidence for the truth of its contents. In his statement, he says that Mr. Render put his face at the level of Ms. Vieira’s breasts and made the comment that he was at the right height for breast level.

[47] Ms. Vieira testified that as Mr. Render came towards her, she backed up to where she was almost up against the wall. She said he raised his left arm above his head and slapped her directly on her buttocks. She described the slap as strong and hard. She said it stung for about 10 minutes. She denied that she moved or turned as Mr. Render was getting up.

[48] Ms. Vieira immediately gasped. It was clear to all the witnesses that Ms. Vieira was clearly upset by the incident. She said to Mr. Render that that was “not OK” and “I can’t believe you did that”. Mr. Render asked her if she was “serious”. Mr. Render said, “why upset – you have punched me in the arm in the past”. Ms. Vieira said it was different because “you hit me on a private sexual part of my body”. Mr. Render said that Ms. Vieira will not be able to punch him in the shoulder anymore. Mr. Render testified that he apologized to Ms. Vieira in the office and said it would not happen again.

[49] The tone in the office changed immediately. Mr. Ferrusi testified that Mr. Render said stop with the jokes and apologized to Ms. Vieira. Mr. Daniel testified that the air went out of the room. Everyone left and went back to their offices.

[50] Ms. Vieira testified that she was shocked by what had occurred. She denied that Mr. Render apologized to her at that time. None of the people present at the time of the incident testified that Mr. Render stated that he had not intended to hit her buttocks or that the contact was accidental. Ms. Vieira remained in the office and spoke with Mr. Ferrusi. She then went into her office. She was upset and angry.

[51] When she got back to her office, Ms. Vieira sent an e-mail to herself and her husband about what had happened. The e-mail was sent at 2:45 p.m.:

We were joking around that he is short and I was taller than him. He was bending down pretending to be shorter and was coming up to my breasts, getting close … I was backing up from him, but he kept on invading my personal space. We were laughing about it. But he took it a step too far and actually spanked me on my butt. I couldn’t believe it and I told him that it was inappropriate. It was very awkward. He said that I’ve punched him in the shoulder before as if it’s an excuse. I said, no, it’s not the same thing as that was my private part. Present to witness this was Joe F., Leo D., Larry S., and Mario M.

[52] After she sent the e-mail, Ms. Vieira went into Mr. Platt’s office and reported the incident. Mr. Platt suggested that she could either talk to Mr. Render and ask him to apologize, or it could go to Human Resources. At that time, Ms. Vieira stated that she wanted an apology.

[53] After speaking with Mr. Platt, Ms. Vieira prepared a second e-mail which was sent at 3:11 p.m.:

I was thinking about this and I felt upset. I don’t want the other men in the office to think it is OK to do that to me so I decided to talk to my Manager about it. I went into Gary Platt’s office and told him what happened. I advised him that Mark crossed a line and that it shouldn’t have happened … not appropriate. He asked me what I wanted him to do about it and I said that it was OK for him to talk to Mark about it. And that Mark would need to apologize to me.

[54] After the incident Mr. Render went into his office. He testified that he was quite distraught. A few minutes later Mr. Daniel and Mr. Ferrusi came into his office. According to Mr. Render they expressed some surprise at Ms. Vieira’s reaction. They acknowledged that she was clearly upset.

[55] Mr. Render testified that during the discussion, Mr. Daniel asked what it felt like to “touch her ass”. According to Mr. Render he felt this was an inappropriate comment to make. Mr. Daniel testified that Mr. Render initiated the comment and said, “who wants to touch the hand that slapped Linda’s ass?” Regardless of who initiated the comment, Mr. Render admitted that he then said, “for 10 bucks you can shake my hand.” According to Mr. Render, he said this in a sarcastic way. He testified that this comment was not made as a joke but instead was to shut down the discussion. According to Mr. Render, there was no laughter at his comment. Mr. Daniel testified that Mr. Render made this comment in a light, joking manner. There was no evidence that in this meeting Mr. Render stated that he did not intend to hit Ms. Vieira on the buttocks.

[56] At trial, Mr. Render was not prepared to concede that his comment that Mr. Daniel could shake his hand for $10 was “out of line”. On cross-examination his discovery evidence was put to him, in which he stated that it was “probably very out of line for him to say that.” (Q. 682-4.) Although he would not concede at trial that the statement was “out of line”, he said he would take back the comment if he could.

[57] About 10 minutes after Mr. Daniel and Mr. Ferrusi left his office, Mr. Render went down the hall to shred some paper. The shredding machine was close to Ms. Vieira’s office. He made eye contact with her. He made a gesture like he was slapping his hip. He went into her office.

[58] When in her office, Ms. Vieira said he should not have done that. Mr. Render said it was a joke. She said it was no joke, you hit me on my private parts. Ms. Vieira testified that he said it was not sexual and that he said, “I was not trying to sleep with you”. Mr. Render apologized. He believed she accepted his apology. Ms. Vieira confirmed that Mr. Render apologized when he was in her office, but he did not seem sincere in his apology.

[59] A few minutes later, Mr. Render was in the hallway near Mr. Platt’s office. Mr. Platt called him into his office. He thanked Mr. Render for apologizing to Ms. Vieira. He stated that Ms. Vieira had seen him after the incident and said that she expected an apology from Mr. Render.

[60] Mr. Render testified that he was upset about what had happened and decided to leave the office early. He left at 3:45 p.m. As he was leaving, he met Kevin McRae, who was entering the building. According to Mr. Render, Mr. McRae could tell that something was wrong, and asked what happened. They went into the parking lot so they could discuss the matter privately. While in the parking lot they were joined by Mike McCartan. They had a cigarette. Mr. Render demonstrated what had happened. He gestured making a swatting motion while in a crouched position.

[61] Mr. McCartan and Mr. McRae both testified at the trial. They stated that there was no joking or laughing about the incident. Mr. McRae testified that Mr. Render stated that he gave Ms. Vieira a tap in a playful way. Mr. McCartan testified that Mr. Render expressed regret over what had happened.

[62] While Mr. Render was demonstrating what had happened, Ms. Vieira was watching them from her office window. She believed Mr. Render was mocking her. Mr. Render did not know Ms. Vieira was watching from her office. Ms. Vieira admitted in cross examination that she could not hear what was being said. She did not see any laughing or “high-fiving”. Although she could not hear what was being said, she testified that she knew she was being mocked. After seeing this, Ms. Vieira again spoke with Mr. Platt.

[63] Ms. Vieira told Mr. Platt that Mr. Render had told Mr. McRae and Mr. McCartan about the incident. Mr. Platt sent an e-mail to the men who were present at the time of the incident, as well as Mr. McCartan and Mr. McRae. The e-mail read as follows:

We are one big family here. We do want to be careful that it doesn’t cross that line from business to personal. Everyone desires the utmost respect here, whether you are Male or Female. The act that was done earlier that you all witnessed or heard about cannot be tolerated and cannot happen again in our Branch or on company time. I hope you all agree and we can put this matter to rest. Please reflect as well on the recent information we received from Sarah Cleveland on this matter [the sexual harassment policy]. It really puts things in perspective.

[64] When Mr. Render arrived home, he saw the e-mail from Mr. Platt. Mr. Render called Mr. Platt. Mr. Render was advised that Ms. Vieira had seen him the parking lot and thought he was mocking her and that his apology was not sincere. Mr. Render said to Mr. Platt that the incident in which his hand made contact with Ms. Vieira’s buttocks was a joke that went badly.

The TKE Investigation

[65] On Monday, March 3, 2014, Mr. Render went to lunch with Mr. Platt, Mr. Daniel, Mr. Ferrusi and Mr. Sullivan. During lunch, Mr. Platt received an e-mail from Ms. Vieira. She stated that she had given the incident more thought and decided to report the matter to HR. Mr. Platt showed Mr. Render the e-mail during their lunch.

[66] Mr. Platt arranged a meeting with Mr. Render and Ms. Vieira for that afternoon. He contacted Ms. Vieira and asked her to come into the boardroom at 2:15. According to Ms. Vieira, at the meeting Mr. Render asked if she was trying to get him into trouble. She testified that Mr. Platt asked if she would be satisfied with an apology or if she wished the matter to go to HR. She testified that she felt intimidated by being in the office with her two managers.

[67] Mr. Render apologized to Ms. Vieira during the meeting. According to Ms. Vieira he did not say that he hit her buttocks by accident. She felt the apology was insincere. Ms. Vieira stated that she wanted a letter in Mr. Render’s file and that the matter should go to HR.

[68] On March 3, 2014, Gary Medeiros, the Canadian president of TKE, was working in the Mississauga office. Ms. Vieira spoke to him about the incident. She said that Mr. Render had crouched down so his face was close to her breasts and then slapped her on her buttocks. Mr. Medeiros learned later that day that she had made a formal complaint to HR. Mr. Medeiros testified that Mr. Ferrusi also spoke with him. According to Mr. Medeiros, Mr. Ferrusi said he was shocked that Mr. Render had slapped Ms. Vieira’s buttocks. He told Mr. Medeiros about Mr. Render’s comment that they could shake his hand for $10.

[69] On Tuesday, March 4, 2014, TKE’s HR manager, Sarah Cleveland, attended at the Mississauga office for the purpose of carrying out an investigation into the incident. She conducted interviews with Ms. Vieira and Mr. Render along with others who were in the office at the time.

[70] Mr. Render described to Ms. Cleveland what had happened, both in the operations supervisors’ office and in the parking lot. He said it was just a joke that went badly. The interview on March 4, 2014 is the first reference to Mr. Render stating that he intended to tap Ms. Vieira on the hip, but she turned, and his hand came into contact with her buttocks. According to Mr. Render, Ms. Cleveland advised that he may receive a letter in his file, or there could be suspension or termination.

[71] Ms. Cleveland also met with Mr. Ferrusi. According to Mr. Ferrusi, Ms. Cleveland said that she felt Mr. Render’s action was sexual assault. From the way Ms. Cleveland was speaking, Mr. Ferrusi believed that Mr. Render would be fired. He told Mr. Render he felt that he was “done” on March 5, 2014.

[72] Ms. Cleveland spoke with Mr. Daniel. He said everyone was going along with the joking until Mr. Render slapped Ms. Vieira. At that point the air went out of the room. It did not seem to him that Mr. Render was remorseful. He told Ms. Cleveland that Mr. Render initiated the comment about touching his hand for $10.

[73] Mr. Render became concerned that the investigation may result in the termination of his employment. He told Ms. Cleveland about prior incidents when Ms. Vieira had punched him in the arm and that she and others made anti-Semitic comments to him. According to Mr. Render, Ms. Cleveland did not appear too interested in his complaints and only wanted to discuss the complaint made by Ms. Vieira. She stated to Mr. Render that she thought the incident was sexual harassment. Mr. Render disagreed. On Wednesday, March 5, 2014 Mr. Render made a formal complaint to HR against Ms. Vieira and TKE regarding the prior incident when Ms. Vieira had punched him in the shoulder and made anti-Semitic comments.

Termination of Mr. Render’s Employment

[74] Ms. Cleveland spoke to Mr. Medeiros on the phone and reported on her interviews. The decision was made to terminate Mr. Render’s employment. Mr. Medeiros testified that his decision to terminate Mr. Render was based solely on the incident in which Mr. Render touched Ms. Vieira’s buttocks.

[75] Mr. Render testified that he met with Mr. Medeiros on March 6, 2014. They had gone out for lunch with a client. Mr. Render left the lunch early to meet with Ms. Cleveland. A few minutes after the meeting with Ms. Cleveland started, Mr. Medeiros arrived. Mr. Render was handed the termination letter. He was told he was being terminated effective immediately for cause. He was required to hand in his cell phone and the keys for the company car. A taxi was called to take him home. Mr. Render did not receive any payments for severance or vacation pay at the time of termination.

[76] Based on the dismissal letter signed by Mr. Medeiros, Ms. Cleveland reported that Mr. Render admitted that he engaged in conduct of a sexual nature against another employee. Mr. Render strongly denied that he made this admission. At trial he testified that he would not have made such an admission because he did not feel he had done anything wrong:

So basically, I am going to tell you that Ms. Cleveland is a liar. Because I never once admitted to any of this; what is there to admit when I didn’t do anything? So yes, I believe Ms. Cleveland may have railroaded me.

iii) Aggravating and Mitigating Factors Relevant to the Contextual Analysis

Nature and Seriousness of Mr. Render’s Act

[77] The evidence of Mr. Render and Ms. Vieira with respect to what happened on the afternoon of February 28, 2014 differs on some significant points. According to Ms. Vieira, after she made a non-verbal quip about his height, Mr. Render turned to her, crouched down so his face was only one inch from her breasts and moved his head from side to side, making a motor sound. He moved towards her causing her to back up against a wall. He then, with some force, slapped her buttocks. Mr. Render states that his face was close to her breasts for only a short period of time as he moved down to his knees. He admits that as he was getting up, he moved his arm in a swatting motion. Although it was his intention to tap Ms. Vieira on her hip, she turned, and his hand came into contact with her hip and buttock.

[78] To paraphrase Tse v. Trow Consulting Engineers Ltd., I find that the incident was more than Mr. Render recognizes it to be, and something less than Ms. Vieira asserts it to be: Tse v. Trow Consulting Engineers Ltd. (1995), 14 C.C.E.L. (2d) 132 (Ont. C.J. (Gen. Div.)), at para. 36.

“Motorboating”

[79] I do not accept Ms. Vieira’s evidence that Mr. Render put his face within one inch of her breasts and moved his head back and forth while making a motor sound (“motorboating”).

[80] Within one hour of the incident, Ms. Vieira wrote two e-mails to memorialize the incident. Ms. Vieira did not describe Mr. Render’s conduct as “motorboating” in the two e-mails. Although she stated that he was coming close to her breasts she did not describe the back and forth movement of his head or the motor sounds. In the e-mail she states that they were laughing. If, in fact, there was “motorboating”, I expect that not only would she not have been laughing, but she would have referred to it in her e-mail. There is no evidence that she told Mr. Platt of the “motorboating” when she met with him immediately after the incident. On his discovery, Mr. Platt, when discussing the meeting he had with Ms. Vieira, made no mention of “motorboating”.

[81] I expect this type of conduct would have made a significant impression on the persons who were in the office. The incident occurred in front of Mr. Ferrusi. He testified that he did not see Mr. Render do this.

[82] Mr. Daniel testified that he saw Mr. Render move his head from side to side close to Ms. Vieira’s breasts. I find his evidence on this point to be unreliable and I give it no weight. Mr. Daniel did not refer to “motorboating” in his statement or when he spoke with HR a few days after the incident. The first mention by Mr. Daniel of this fact was in the witness box. His evidence came after he read the report of Ms. Vieira’s interview which was conducted during the trial. In the news report there is reference to the “motorboating” incident.

[83] Mr. Daniel’s evidence on this point is also not consistent with common sense. He testified that he was speaking with Mr. Sullivan. He heard the exchange between Mr. Render and Ms. Vieira and was looking in their direction when he saw the “motorboating”. Although he testified this was shocking conduct, he turned back to Mr. Sullivan to continue his conversation. It is not believable that after seeing this conduct he would have looked away.

[84] Although I find that there was no “motorboating”, it is clear, even on Mr. Render’s evidence, that for two or three seconds his face was in close proximity to Ms. Vieira’s breasts. On Ms. Vieira’s evidence the distance was one inch. Mr. Render’s evidence was that his face was 12 inches away. Either way I conclude that he was invading her personal space, and the conduct was inappropriate.

Contact with Ms. Vieira’s Buttocks

[85] There is no dispute in the evidence that Mr. Render’s hand came into contact with Ms. Vieira’s buttocks. Ms. Vieira testified that it was an intentional and hard slap. Mr. Render testified that it was an accidental touching.

[86] Although Mr. Render testified at trial that he was not annoyed about Ms. Vieira’s comment about his height, this is contrary to his discovery evidence. On discovery he testified that he found the comment to be disrespectful. Mr. Daniel testified that Mr. Render did not appreciate jokes about his height. I do not accept Mr. Render’s trial evidence that the comment did not bother him. I expect he found the comment to be disrespectful particularly as it was made in front of his subordinates.

[87] I do not accept Mr. Render’s evidence that the contact to Ms. Vieira’s buttocks was accidental. Mr. Render testified that as he was getting up, he swatted at Ms. Vieira with his right hand. He stated that Ms. Vieira turned as he was about to hit her on the hip. Mr. Ferrusi testified that as Mr. Render got up, he tapped her on the side and said, “good game”. The witnesses testified that at the time of the incident, the male employees would sometimes tap each other on the buttocks and say, “good game”.

[88] Immediately after the incident, when Ms. Vieira was clearly upset, Mr. Render did not say that he meant to tap her on the hip and that he hit her buttocks only because she turned suddenly. Instead he asked if she was serious. One would expect Mr. Render to have immediately said the touching was an accident as soon as he realized his hand came into contact with her buttocks. Mr. Render did not state that the touching was accidental when he spoke with Ms. Vieira later in the day on February 28, 2014 or when he met with Ms. Vieira and Mr. Platt on March 3, 2014. He first made mention of the accidental nature of the slap several days later, when his termination appeared imminent.

[89] I also find Mr. Render’s testimony with respect to the dynamics of the incident to be inconsistent with common sense. He stated that as he moved his hand to tap her on the hip, she turned suddenly. He could not stop his hand in time and, as a result, his hand contacted part of her buttocks. If he intended a gentle tap on the hip it is difficult to understand why he could not have stopped his movement when she turned.

[90] There is conflicting evidence with respect to the force of the slap. Mr. Render described it as a light tap. Mr. Ferrusi stated that the tap was a 1 out of a scale of 10. Mr. Mendez did not give evidence, but in his will-say statement he described the tap as playful and that it did not appear intended to hurt Ms. Vieira. On the other hand, Ms. Vieira stated that the slap was forceful, and her buttocks stung for 10 minutes. Although Mr. Daniel did not witness the incident, he heard a loud slap and asked Mr. Render did you hit “her that hard”.

[91] I find that the slap was of sufficient severity to cause Ms. Vieira to be shocked and upset by what had happened. If it was in fact a light tap, it is unlikely she would have reacted the way she did.

[92] I am of the view that the act of slapping Ms. Vieira on the buttocks in the presence of the other male workers is very serious and unacceptable conduct. Ms. Vieira testified that she felt humiliated by the action. She was upset and embarrassed. She was concerned that other male co-workers would treat her differently following the incident.

[93] The Defendant takes the position that the action on the part of Mr. Render was a sexual assault. Ms. Vieira considered the action to be a sexual touching because Mr. Render touched a sexual part of her body without consent. Mr. Render testified that the slap was not sexual in nature. Whether the act was a sexual harassment, sexual assault or simply a common assault, the purpose seems to be the same: to assert dominance over Ms. Vieira and to demean and embarrass her in front of her colleagues.

[94] I am satisfied that the act of slapping Ms. Vieira’s buttocks was an act that attacked her dignity and self-respect. This type of conduct is unacceptable in today’s workplace.

Mr. Render is a Supervisor

[95] Mr. Render was senior to Ms. Vieira and was a supervisor in the office. Although he was not her direct supervisor, Mr. Render held a position of responsibility in the branch. As a supervisor he was responsible for knowing and administering the company policies including the Anti-Discrimination and Anti-Harassment Policy. He was responsible for ensuring a safe work environment.

[96] Mr. Render was in a position of authority over Ms. Vieira. The nature of the employment relationship is a factor which exacerbates the seriousness of the misconduct: van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73, 71 C.C.E.L. (3d) 87, at para. 184.

TKE’s Anti-Harassment Policy

[97] TKE communicated its policy of zero tolerance for harassment and discrimination to its employees on February 20, 2014, eight days before the incident. The Policy states that sexual harassment can arise from a single incident and may include public humiliation. Sexual harassment is defined to include any unwelcome sexual touching. The Policy provides that any employee found to have engaged in this type of conduct will be subject to discipline up to and including termination of employment.

[98] Mr. Render was present for the presentation. As a supervisor he was expected to know and understand the Policy. The fact that he engaged in conduct which was contrary to the Policy, only eight days after it was communicated to him, is an aggravating factor.

Remorse

[99] Mr. Render’s initial reaction after the incident revealed a lack of appreciation of the seriousness of his act. On his evidence he apologized but he also asked if she was serious and how she could complain about this when she had punched him in the shoulder in the past. As Ms. Vieira noted, the two types of conduct are very different in that a slap on the buttocks is on a private part of her body. Mr. Render did not believe he did anything wrong. He maintained his position that a slap on a subordinate female worker’s buttocks is the same as a punch in his shoulder. He demonstrated a lack of understanding regarding sexual assault or harassment.

[100] Mr. Render provided the following testimony at trial:

Q. And I take it your attitude back then wasn’t any better or wasn’t any different than it is today.

A. What attitude? Can you be more specific.

Q. Well the – your attitude that the fact that Ms. Vieira says, “I’m upset because you touched me in your – in my private sexual part”, your attitude and your view that is that it is not sexual harassment. That attitude. You held the same attitude in the beginning of March of 2014.

A. And I’ll hold it ‘til the day I die.

[101] Instead of taking responsibility for his actions, Mr. Render made his own formal complaint to HR that Ms. Vieira had previously punched him in the shoulder. He also made a complaint regarding anti-Semitism.

[102] Mr. Render’s lack of contrition and understanding of the seriousness of his actions puts into question whether the employment relationship could be maintained. TKE was rightly concerned that Mr. Render did not understand that his conduct was inappropriate and constituted sexual harassment. The seriousness of the conduct combined with the Plaintiff’s denial is an aggravating factor: van Woerkens v. Marriott Hotels of Canada Ltd., at para. 190.

Mr. Render’s Employment Record

[103] A mitigating factor is that Mr. Render was employed with TKE and its predecessor company for 30 years. Over that period of time, there were no disciplinary issues. There is no evidence that Mr. Render had ever been involved in any sexual or physical assault or harassment. There were no performance issues.

Office Culture

[104] Mr. Render argues that the culture of the office is also a mitigating factor. There was a joking culture in which all employees, including Ms. Vieira, participated. Ms. Vieira gave Mr. Render the apron with the body of a muscular man in his underwear which could be considered to be inappropriate (although Mr. Render did not take offence). On the day of the incident, she also made a joking comment about Mr. Render’s height.

[105] Although there was evidence of a joking culture, I am not prepared to consider this to be a mitigating factor. As stated in Bannister v. General Motors of Canada Ltd.:

The trial judge, no doubt, formed the view, from listening to the witnesses, that this plant was a rough environment with abuse and sexual innuendo flowing freely in all directions, and the female employees strong enough to handle the exchanges. This is probably an apt description of many industrial environments of the past but cannot be tolerated in today’s cultural acceptance of gender equality. It is not a question of the strength or mettle of female employees, or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct: Bannister v. General Motors of Canada Ltd. (1998), 1998 CanLII 7151 (ON CA), 40 O.R. (3d) 577 (C.A.), at para. 31.

[106] Although Ms. Vieira may have participated in the jokes, this does not mean she consented to being touched on a sexual part of her body. Also, she did not consent to being demeaned in front of her co-workers. Even in a joking environment there is a line that cannot be crossed, and that line includes physical touching without consent of a sexual and private part of someone’s body. There is no place for any conduct which could result in a person feeling demeaned or disrespected.

iv) Proportionality of the Penalty

[107] As the Supreme Court of Canada stated in McKinley, it is necessary to apply the principle of proportionality. The court must strike a balance between the severity of an employee’s misconduct and the sanction imposed: McKinley v. BC Tel, at para. 53.

[108] The termination of an employment relationship without notice or explanation is generally reserved for the most extreme of cases. It has been described as the “capital punishment” of employment law. As stated in Carscallen v. FRI Corp.:

The important factors emerging from these expressions of the principle of law include that the misconduct must be “serious”; that the misconduct must amount to “a repudiation of the contract”; that the acts “evince of intention to no longer be bound by the contract”; that dismissal is an “extreme measure”; and must not be resorted to in trifling cases. As previously observed, just cause is truly is [sic] the “capital punishment of employment law”: Carscallen v. FRI Corp. (2005), 2005 CanLII 20815 (ON SC), 42 C.C.E.L. (3d) 196 (Ont. S.C.), at para. 72.

[109] The onus is on TKE to prove on a balance of probabilities that there was no other reasonable alternative to the termination of Mr. Render’s employment for cause: Stone v. SDS Kerr Beavers Dental, 2008 C.L.L.C. 210-009 (Ont. S.C.), at para. 106. The burden of establishing just cause is high, especially in the case of long serving employees: Stacey Reginald Ball, Canadian Employment Law (Thomson Reuters, 1996) (loose-leaf updated 2019, release 81), ch 11.10 at pp. 11-3 to 11-4.

[110] In balancing the aggravating and mitigating factors, I conclude that the Defendant has satisfied the onus of establishing that summary dismissal of Mr. Render’s employment was the appropriate response in all the circumstances.

[111] The conduct was clearly of a serious nature. A slap on a female co-worker’s buttocks is not acceptable conduct in the modern workplace. The act involved non-consensual physical contact on a sexual part of Ms. Vieira’s body. Mr. Render was not her direct supervisor but was a senior person in the office, with whom Ms. Vieira had to work. Mr. Render ought to have been aware that this conduct was unacceptable, especially when the Anti-Harassment Policy had been presented to the employees eight days before the incident.

[112] Mr. Render’s conduct following the incident is particularly troublesome. Although he apologized to Ms. Vieira, he did not demonstrate an understanding that his conduct was unacceptable, or the effect it had on Ms. Vieira. Immediately after the incident, when Ms. Vieira was clearly upset, he asked why she was upset when she had punched him in the shoulder in the past. He maintained his position that the slap on a female co-worker’s buttocks is equivalent to a punch in the shoulder. He denied that his action was a form of sexual harassment or assault and has maintained that position at trial. He made a formal complaint of misconduct against Ms. Vieira when it became clear that his employment may be terminated.

[113] Although Mr. Render was a long-standing employee with a previously good employment record, I am satisfied that his conduct, both in slapping Ms. Vieira on the buttocks and his lack of understanding and remorse following the incident, is not reconcilable with sustaining his employment.

[114] The circumstances of this case are similar to Foerderer v. Nova Chemicals Corporation. In that case, the culture at the office included sexual banter and off-colour joke telling. The employer had published a formal anti-harassment policy which was available on its intranet. Although the plaintiff was not the complainant’s direct supervisor, he was a senior employee upon whom the complainant relied. The plaintiff’s actions ran from vulgar comments to exposing the complainant to graphic pornography and images of violence against women. In dismissing the plaintiff’s action, the court stated:

The law is clear that, while all sexual harassment must be taken very seriously, there is a spectrum of misconduct. Not all sexual harassment will justify dismissal. Sexual harassment involving a non-consensual physical component is at the most serious end of the spectrum. Since such conduct is a criminal act and an employer is not obliged to warn employees not to commit criminal acts, one transgression can warrant summary dismissal. At the lower end of the spectrum are the “less serious” forms of harassment, including sexual verbal remarks, crude jokes, suggestive words, and suggestive gestures.

Each case must be assessed on its own unique facts.

Certain principles can be gleaned from Bannister; Gonsalves, and Simpson, a trilogy of cases decided by the Ontario Court of Appeal:

i) when a manager or other senior employee engages in serious sexual harassment and denies that the misconduct occurred or otherwise refuses to recognize the unacceptable nature of his or her conduct, termination of the employment relationship may be the appropriate employer response; and

ii) an employer is duty bound to protect employees from offensive conduct and to shield itself from civil liability as the result of actions brought by employees victimized by sexual harassment: Foerderer v. Nova Chemicals Corporation, at paras. 162-164. [Footnotes omitted.]

[115] I conclude that in all the circumstances, summary dismissal was the appropriate response by TKE. I dismiss the Plaintiff’s action.

b) Reasonable Notice Period

[116] If there was no just cause for termination, I would have found that the reasonable notice period is 24 months.

[117] Mr. Render was 51 years of age at the time of the dismissal. He had worked at TKE and its predecessor company for 30 years. At the time of the dismissal, he was a manager with 4 direct reports and responsibility for a total of 50 employees. He was earning $138,057.90 per year.

[118] The Defendant argues that Mr. Render failed to take appropriate steps to mitigate his damages. Although the Defendant argues that Mr. Render may have been able to work as an elevator mechanic/technician, no evidence was led as to what comparable positions may have been available. The employer has the onus of showing that the Plaintiff failed to take reasonable steps and had his job search been active he could have found a comparable job: Link v. Venture Steel Inc. (2008), 2008 CanLII 63189 (ON SC), 70 C.C.E.L. (3d) 114 (Ont. S.C.), at para. 46. The Defendant failed to satisfy this onus.

[119] After the termination of his employment, Mr. Render took reasonable steps to find alternative employment. He applied for jobs which were equivalent to his position at TKE, but he was unsuccessful. I note that the Defendant did not take any steps to assist the Plaintiff. They did not provide a letter confirming employment or provide him with any out-placement counselling.

[120] Due to his inability to secure alternative employment, the Plaintiff started his own consulting business. I find this was a reasonable option for the Plaintiff to pursue. The Plaintiff did not earn any income from this business for the first two years.

[121] At the time of termination, the Plaintiff’s total annual compensation was as follows:

Salary $138,057.90 Benefits 3,000.00 Pension 8,246.69 Phone 637.32 Bonus 12,160.95 Car 6,600.00 Total $168,702.68

[122] I therefore assess the Plaintiff’s damages at $337,405.72.

c) Conduct of the Defendant

[123] Although the action is dismissed, I wish to express my serious concerns with respect to the manner in which the defence was conducted.

[124] Ms. Vieira’s testimony was clearly impeached with respect to whether she considered a civil action against Mr. Render to be a real possibility. She initially testified that she had never considered an action against Mr. Render. In cross-examination, she was shown her Affidavit sworn on November 28, 2017 in support of her motion for intervenor status. At paragraph 5, she deposed that although she had not brought a civil action against Mr. Render, she is “considering it as a real possibility”. After this was put to her in cross-examination, Ms. Vieira changed her trial testimony and admitted that she had considered an action against Mr. Render.

[125] Ms. Vieira’s conduct at the trial also deserves comment. Although she was subject to a witness exclusion order, she conducted an interview with the press after her examination-in-chief was completed and before her cross-examination. In addition, she exchanged text messages about her evidence with several people including Mr. Daniel, who had not yet given his evidence.

[126] I also wish to comment on the actions of the Defendant. I recognize that TKE is not responsible for what Ms. Vieira said to the press during the trial. I am of the view, however, that the Defendant facilitated and promoted Ms. Vieira’s breach of the witness exclusion order.

[127] The Defendant retained Melanie Jameson Media Consultant on September 5, 2019. Before the trial started, she sent a statement about the case to 40 media outlets. The statement was sensationalist and read as follows:

This is important and I hope you’ll share it with interested parties. …. its got sex, drama, termination, and a legal question that could potentially affect every work environment in Canada.

[128] The information sent to the media outlets included a statement from Ms. Vieira which included allegations which were not proven at trial.

[129] During the trial, Ms. Jameson introduced Ms. Vieira to the reporter who conducted the interview. The actions of Ms. Jameson contributed to a breach of the witness order, which caused significant disruption during the trial. Ms. Jameson is the Defendant’s agent and was acting on its behalf.

[130] The Defendant chose to launch a public relations campaign on the eve of trial. The campaign may have been intended to put additional pressure on the Plaintiff or was a misguided attempt to try to influence the court. The information contained in the statement to the media was inflammatory and included allegations not proven at trial. In addition, the Defendant’s agent facilitated the breach of the witness exclusion order. This conduct is unacceptable.

d) Costs

[131] The Defendant is presumptively entitled to its costs of the action. The manner in which the Defendant conducted itself during the trial will be a factor in determining its entitlement to costs and, if entitled, the amount.

[132] I encourage the parties to reach an agreement with respect to costs. If they are unable to do so, I direct the Defendant to serve on the Plaintiff a Bill of Costs accompanied by written submissions of no more than 5 pages in length within 30 days of the release of these reasons.

[133] The Plaintiff shall serve his reply within 20 days of receiving the Defendant’s costs submissions, also limited to no more than 5 pages in length.

[134] After the Plaintiff delivers his cost submissions to counsel for the Defendant, counsel for Defendant shall deliver the costs submissions from both parties to me in care of the Judges’ Administration, Room 170, at 361 University Avenue.

DISPOSITION

[135] I dismiss the Plaintiff’s action.

[136] The Defendant is presumptively entitled to its costs of the action.

Chalmers, J.

Released: November 27, 2019

COURT FILE NO.: CV-14-507385

DATE: 20191025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mark Render

Plaintiff/Applicant

– and –

ThyssenKrupp Elevator (Canada) Limited

Defendant/Respondent

REASONS FOR DECISION