Court File and Parties

Court File No.: CV-18-596961 Date: 2019-12-20 Superior Court of Justice - Ontario

Re: Francesco De Palma, Plaintiff/Respondent And: Canadian Federation of Independent Business, Defendant/Applicant

Before: Leiper J.

Counsel: N. Chowdhury, for the Applicant R. Kornblum, for the Respondent

Heard: December 19, 2019

Endorsement

LEIPER J.

Introduction

[1] These are reasons for decision on a motion for summary judgment. The Canadian Federation of Independent Business seeks to dismiss the action brought by its former employee, Francesco De Palma for wrongful dismissal and damages under the Ontario Human Rights Code.

[2] The CFIB says that the facts are reduced to writing in the correspondence exchanged between the parties and that the only dispute is the application of the legal framework to a known set of facts. CFIB argues there is no genuine issue requiring a trial.

[3] Mr. De Palma claims that CFIB constructively dismissed him from his position on May 27, 2016 and failed to accommodate him when it was provided with medical evidence that he could not carry out door-to-door sales. He submits that a trial is required to provide the flavour of his conversations with his managers at CFIB and his subjective view of those communications are important to be explored at a trial.

[4] For the reasons below, I am satisfied that there is no genuine issue for trial and that the application by CFIB should be granted.

Background Facts

[5] CFIB is a not-for-profit advocacy association for small and medium size businesses. CFIB hired Mr. De Palma on May 8, 1996 as the Toronto district manager, responsible for selling new memberships in the CFIB and selling renewal memberships to existing members.

[6] In mid-2015, De Palma’s sales of new memberships declined. His managers spoke to Mr. De Palma about this declining trend in January of 2016: he told them he did not wish to sell new memberships due to his age, health and tenure with the association. His managers asked whether he was thinking of winding down to retirement. Mr. De Palma declined to discuss that possibility. They met again with Mr. De Palma in April of 2016 about his lack of new membership sales. Mr. De Palma told his managers that he did not intend to carry out new sales activity. His managers suggested he consider a less-demanding role, such as selling renewals in neighbouring regions (Oakville, Hamilton or Niagara region). Mr. De Palma did not respond favourably to these suggestions.

[7] On Thursday April 28, 2016, Mr. De Palma’s manager sent him an email acknowledging his request to cease new business generation on account of his age, energy and health. The manager asked for further information from his doctor to allow CFIB to understand his limitations and to make a plan to accommodate his health challenges. The email advised Mr. De Palma that Osnat Fighel, the HR Manager, would provide him with information and forms to be completed by his doctor.

[8] On April 29, 2016, Mr. De Palma submitted a note to CFIB from his doctor which read:

Mr. Depalma (sic) has several medical problems and is not able to work on door-to-door sales. He can only drive to appointments on medical grounds.

[9] On May 2, 2016, Ms. Fighel sent the forms to Mr. De Palma. Her cover email advised that CFIB used a third-party provider to collect medical documents to assess the needs of employees requesting accommodation.

[10] On May 14, 2016 Mr. De Palma wrote to Ms. Fighel. He refused to submit the forms and said that he had already submitted a doctor’s note. On May 17, 2016, Ms. Fighel spoke to Mr. De Palma and they discussed the necessity of the forms. Mr. De Palma asked her to send him what she needed and said he would provide it.

[11] On May 27, 2016, Ms. Fighel provided Mr. De Palma with a letter that confirmed the discussions about his physical limitations and request for accommodation. The letter attached a blank functional abilities report to be filled out by his doctor. Mr. De Palma argues that the letter of May 27, 2016 amounted to constructive dismissal. The letter read as follows:

Dear Frank,

This letter confirms our ongoing discussions since January 2016 with regard to your role as a DM with CFIB, and your request that CFIB create a new role for you in your Territory to do renewals only. We have advised you that no such role exists, but in any event you have also told us that you are unable to meet the existing RRM performance expectations of 15 renewals per week.

We are in receipt of the note from your doctor on April 29, 2016 stating that you have ‘several medical problems’ and that you are ‘not able to work on door to door sales. Further Dr. McKeown states that “He can only drive to appointment son medical grounds.”

In order to help us understand your physical limitations so that we could assess what accommodations may be required to support you in the DM role, we requested you consent to participate in our Disability Management program with a third-party provider. By email dated May 14, 2016 your refused to participate in this process.

We understand your position to be that you are permanently unable to handle the physical demands of any full time Field Sales position with CFIB.

The goals and purposes of accommodation is to ensure that an employee who is able to work can do so. An employer does not have duty to change working conditions in a fundamental way.

The duty to accommodate does not require permanently changing the essential duties of a position, permanently assigning the essential duties of a position to other employees, or exempting an employee from performing the essential duties of his position.

Since you are permanently unable to perform the essential duties of your role as a DM, it would appear that your employment relationship with CFIB has been frustrated.

Further, it has come to our attention that you have recently become a Financial Consultant with Investors Group. As was indicated on your LinkedIn profile, you are offering help to business owners with their financial needs. You did not seek CFIB management approval before taking on other work, contrary to the terms of your employment agreement and in violation of your full-time commitment to CFIB.

CFIB is prepared to consider further medical information. To do so, we require that you co-operate in your request for accommodation by having your physician complete the attached Functional Abilities Report. CFIB reserves its right to request that you attend a third-party disability adjudicator should we decide that is necessary. You must further confirm in writing that you are not longer associated in any way with the Investors Group.

Please consider the contents of this letter and advise us by June 1, 2016 if you are prepared to comply with these conditions. If you have any questions about the contents of this letter, please feel free to give me a call.

[13] On May 30, 2016, Mr. De Palma responded to Ms. Fighel’s letter. He refused to participate in the disability management program because his doctor had provided a note which he said was “very clear” and that his participation was redundant. Mr. De Palma said that he did not say that his condition was permanent, and he was meeting with a specialist to determine that. He also asked again that his position be changed to renewals-only. He offered to provide information on a “need to know” basis.

[14] In his May 30, 2016 response Mr. De Palma raised the issue of whether he was being terminated in these words:

After a career spanning some twenty years, with a solid and consistent high level of performance, (I include some documentation for your reference) there should be no doubt of to (sic) my commitment and dedication to CFIB. So I find it disingenuous when you state that my “employment relationship with CFIB has been frustrated.” If this implies you wish to terminate my employment, please be more specific and I will govern myself accordingly. It seems to me that you are more intent on scrutinizing me instead of showing a sincere and legitimate interest in helping to find solutions.

[14] On June 1, 2016, Ms. Fighel responded to Mr. De Palma advising that CFIB did not have a renewals-only role in Toronto and did not have a duty to create such a role. Ms. Fighel made other suggestions in the meantime, including that Mr. De Palma apply for long term disability (LTD) benefits if his limitations were permanent, or applying for EI sickness benefits while medical information was gathered to determine appropriate accommodation. Her letter included this recognition of Mr. De Palma’s service:

Frank, we acknowledge your long service with CFIB and do not discount the contributions you have made throughout your career. We do not want to put you in the position of pushing yourself beyond your physical abilities. Given your current physical restrictions and inability to perform your role as a DM, we recommend you apply for Employment Insurance sickness benefits while we gather medical information to assess what accommodations may be put in place to assist with your transition back to your DM role.

Ms. Fighel did not say that Mr. De Palma was being terminated: her letter was consistent in requesting his cooperation in complying with the proposed request for information to determine the appropriate accommodations.

[15] On June 3, 2016, Mr. De Palma wrote to Ms. Fighel and expressed appreciation for CFIB’s consideration of his circumstances. He said he was not sure if his limitations were permanent and asked for the necessary forms for an LTD application. The following day, he advised he would be applying for LTD benefits.

[16] In October 2016, Mr. De Palma’s request for LTD was approved by his insurer.

[17] On May 1, 2018, Mr. De Palma served CFIB with a claim for wrongful dismissal and damages under the Ontario Human Rights Code. The claim alleged that the letter sent to him on May 27, 2016 amounted to constructive dismissal.

Is There a Genuine Issue of Constructive Dismissal and Failure to Accommodate Which Require a Trial?

[18] Rule 20.04 (2.1) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 places the onus on the applicant to show on a motion for summary judgment that there is “no genuine issue requiring a trial”: Dawson v. Colt Food Services Limited 2016 ONSC 7653 at para 41.

[19] The judge hearing a motion for summary judgment must be able to make the necessary findings of fact, apply the law to the facts and be a proportionate, expeditious and less expensive means to arrive at a just result: Dawson at para 40.

[20] Mr. De Palma argues that there is a genuine credibility issue over whether the letter from CFIB of May 27, 2016 amounted to his constructive dismissal. CFIB argues that the communications are in writing and do not require viva voce evidence to apply the accepted principles of employment law and duty to accommodate to these communications.

[21] CFIB relies on the following principles supported by the case law:

• An employer’s duty to accommodate is triggered by the employee advising of his/her interest and ability to work in the face of a limitation: Katz et al v. Clark, 2019 ONSC 2188 at para. 28;
• An employee has a duty to cooperate, provide information and accept reasonable accommodation: Renaud v. Central Okanagan School District No. 23, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at paras. 50-51; Sugiono v. Centres for Early Learning, 2013 HRTO 1976 at paras 33-37; McAlpine v. Econotech Services Ltd., 2004 BCCA 111; Nerpolon v. Veltri Canada, 2016 HRTO 204 at paras 111-112;
• An employer is not required to amend a job an delete a component which is significant in terms of time and responsibility: McAlpine at paras. 27-28;
• The test for whether or not an employee has been constructively dismissed is an objective test: would a reasonable person in the same circumstances as this employee believe he/she has been constructively dismissed? Farber at par. 46

[22] In applying these principles to the correspondence and the evidence of what took place between Mr. De Palma and his employer, CFIB prior to his successful application for LTD benefits, I do not see any objective evidence that suggests Mr. De Palma was constructively dismissed by the letter of May 27, 2016. This letter was clear in its request for Mr. De Palma to participate in finding a solution by providing information about his functional limitations and the length of time he required accommodation. This letter was part of a series of communications between Mr. De Palma and his employer, which began with informal discussions that arose when Mr. De Palma ceased doing part of his job, that is seeking out new memberships. Mr. De Palma argues that the letter was “carefully worded” and that a trial needs to be held to hear how he felt on receipt of the letter.

[23] On May 30, 2016, Mr. De Palma put it to his employer in his response to them that he wondered if he was being terminated. Ms. Fighel’s response of June 1 was consistent with the message in the May 27, 2016 letter: CFIB was attempting to gather more information about the nature of the accommodation that would be reasonable and was seeking Mr. De Palma’s assistance in providing appropriate information from his doctor. Mr. De Palma was insistent that they should modify his job based on the brief doctor’s note he supplied on April 29, 2016 and declined to cooperate.

[24] The scenario here is like that in McAlpine. In that case, the trial judge found as follows:

This is not a case of constructive dismissal. Indeed, the evidence has established none of the prerequisites to establishing such a claim. This is, rather, a case in which the plaintiff became ill and unable to provide the services required of her by the terms of her employment.

I am wholly unable to find that the plaintiff, on a balance of probabilities, has shown that there has been a breach of a fundamental term of the contract of employment of the plaintiff such as would allow me to conclude that there has been a constructive or wrongful dismissal.

It was not for the plaintiff to dictate to her employer the “new” or changed terms of her employment, nor should the employer, in the present circumstances, be criticized for its considerable efforts at accommodating the plaintiff. In my view, the evidence establishes that those efforts at accommodation were undertaken in hopes of allowing a valued employee to return to her original position.

[25] I find that in this case, Mr. De Palma was trying to dictate to his employer how he should continue in his role without providing meaningful and reasonable information as to the nature and duration of his limitations. His employer was entitled to request the information that it did and was consistent in its written rationale for the requests. Mr. De Palma refused and chose to apply for LTD benefits, as was his right. However, there is nothing in the record that supports an objective finding that he was constructively dismissed. CFIB reasonable requested information to design a plan for accommodation, with Mr. De Palma’s help. It never got off the ground because of his refusal to do so.

[26] The positions of the parties are well documented. Mr. De Palma argues that the letter to him of May 27, 2016 is the evidence of constructive dismissal which is at the heart of his claim. It is unnecessary to have a trial to consider the claim under all the circumstances. This is an appropriate matter for the application of the summary judgment provisions found in the Rules.

Conclusion

[27] The motion for summary judgment brought by CFIB is granted.

Costs

[28] If the parties are unable to agree as to costs, they may make brief written submissions as to costs on or before January 21, 2020.

Leiper J.

Date: December 20, 2019