Court File and Parties
COURT FILE NO.: CV-15-536526 MOTION HEARD: 20200210 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Renzo Villa, Plaintiff AND: Association of Professional Engineers of Ontario, Defendant
BEFORE: Master Jolley
COUNSEL: Renzo Villa, moving party plaintiff, in person Daniel Wong and Megan Mah, Counsel for the responding party defendant
HEARD: 10 February 2020
REASONS FOR DECISION
[1] The plaintiff commenced this action against his former employer, the Association of Professional Engineers of Ontario, as a result of the termination of his employment in 2013. His action is presently framed as wrongful dismissal claim in which he alleges that he was terminated without notice and without cause for allegedly breaching the Association’s Conflict of Interest Policy. He wishes to amend his fresh as amended statement of claim to claim that he was constructively dismissed. He also seeks an order requiring specific productions from the defendant, an order granting him leave to withdraw his jury notice and an order dispensing with mandatory mediation.
A. Motion to Amend Fresh as Amended Statement of Claim
[2] The defendant does not oppose a number of the amendments sought. However, it opposes certain paragraphs on the basis that they are not relevant to the claim of constructive dismissal that the plaintiff now proposes to advance. Specifically, the defendant objects to the amendments proposed at paragraphs 21, 29-30, 31-32, 34, 45, 48, 80, 81-86 and 90. Leave is granted to include all paragraphs other than those listed above, in the second fresh as amended statement of claim. The paragraphs in dispute are dealt with below.
[3] To provide context for these proposed amendments, a brief overview of the proposed amended claim is warranted. The plaintiff alleges that he has held a licence to practise engineering in Ontario since 1980 and a Certificate of Authorization since 1985, both of which were in good standing at all material times.
[4] The plaintiff was hired by the defendant in 2003. He pleads that, subsequent to his hire, a representative of the defendant attempted to modify the terms of his employment by requiring him to surrender his Certificate of Authorization. He refused to agree to this modification and the issue was not raised again until the termination of his employment.
[5] He pleads that on 22 October 2013, unbeknownst to him at the time, the defendant’s Human Resources Committee authorized the termination of his employment with cause on the grounds that he had provided professional engineering services outside his employment with the defendant in violation of the defendant’s Conflict of Interest Policy and that he had also denied providing any such services when questioned. Instead of advising him that it had already decided to terminate his employment for cause, on 23 October 2013 the defendant told him, it is alleged, that he was being suspended with pay pending an investigation and escorted off the premises.
[6] He pleads that the defendant’s conduct on 23 October 2013 in suspending him, revoking his passkey, seizing his personal effects and accusing him of an undisclosed conflict of interest amounts to a constructive dismissal of his employment. He also argues that the suspension with pay for the purpose of investigating the alleged conflict was a sham as the defendant had already determined the day prior to terminate his employment with cause.
[7] On 25 October 2013 the defendant wrote to the plaintiff terminating him for cause effective that day. The basis for the termination was the plaintiff’s provision of professional engineering services outside his employment in breach of the Conflict of Interest Policy.
1. Paragraph 21
[8] The plaintiff seeks leave to plead that the defendant’s HR Director hired another employee in a similar position as the plaintiff, shortly thereafter, who was also hired as an investigator, and which employee had applied after hiring for a Certificate of Authorization and was in fact issued a Certificate of Authorization by the then Registrar Kim Allen and/or Deputy Registrar of licensing Michael Price.
[9] The defendant argues that this allegation is not relevant to the plaintiff’s claim for constructive dismissal as deals with another employee and pre-dates the October 23 events that allegedly gave rise to the constructive dismissal. I cannot say at this stage that the allegations in paragraph 21 are scandalous, frivolous or vexatious or an abuse of process. The fact, if proven, may assist the plaintiff in demonstrating that the conflict of interest raised with him in the October 23 meeting could not be valid, given its hiring of another employee who held the same qualifications to carry on outside professional work. It may also assist him in demonstrating that he was never asked to undertake not to practise professional engineering outside his employment, as he alleges.
[10] Leave is granted to include paragraph 21 in the second fresh as amended claim.
2. Paragraphs 29-30
[11] The plaintiff seeks leave to plead that he was a member of the defendant’s defined benefit plan. In 2006, the employees rejected a proposal to change to a defined contribution plan. He and other existing employees retained their defined contribution plan but new employees received only the defined contribution plan benefits. He pleads that the defendant has systematically eliminated the majority of the defined benefit employees.
[12] While the plaintiff argued before me that his status as an employee with a defined benefit plan made him an expensive employee and provided motivation for the defendant to try to terminate him for cause, he has not pleaded that motivation or any connection between his status as a defined benefit employee and the termination of his employment. Accordingly, these two paragraphs are irrelevant to his claim as pleaded and leave to include them in the second fresh as amended claim is denied.
3. Paragraphs 31-32
[13] The plaintiff seeks leave to plead that the defendant changed his employment location and moved him to an open workspace, along with the other employees who had had private offices before. He pleads that he acquiesced to these changes in good faith.
[14] The plaintiff makes no connection between this relocation and change in employment and his alleged constructive dismissal. He argued before me that it demonstrated that he was co-operative. That may be but it is not relevant to the allegations in this claim and leave to include these two paragraphs is, therefore, denied.
4. Paragraph 34
[15] The plaintiff seeks leave to plead that the existence of both a defined benefit stream of employees and a defined contribution stream of employees fostered a challenging work environment.
[16] Even if the plaintiff proved this allegation, it is irrelevant as it is not connected to any allegation in the proposed amended statement of claim. Leave to include this paragraph is denied.
5. Paragraph 45
[17] The plaintiff seeks leave to plead that the defendant announced a project to revamp the Certificate of Authorization system and eliminate the Application for Renewal of Certificate of Authorization forms by introducing an online system but then never did so.
[18] He argued before me that this paragraph is relevant as it demonstrates that the forms used by the defendant were ultra vires. He argued that the defendant attempted to make the renewal conditional on a more comprehensive review rather than automatic, except in limited circumstances, but then chose not to implement that system in any event. The plaintiff does not plead the connection between the announcement of the new system and the allegation that the forms were or became ultra vires. Even if it were pleaded, the proposed pleading does not connect this issue with the plaintiff’s constructive dismissal allegations.
[19] To the extent the issue is relevant, the defendant has not opposed the plaintiff’s motion for leave to include paragraphs 46 and 47 which raise the argument that the defendant wrongly asserted that the plaintiff’s form of Certificate of Authorization was invalid. Leave to include paragraph 45 is denied.
6. Paragraph 48
[20] The plaintiff seeks leave to plead that there is nothing in the defendant’s HR file relating to him that would amount to any form of progressive discipline or constitute prior warning. He argues in his pleading that his part time engineering practice was well known to the defendant and no objection was ever raised. He also pleads that the defendant has failed to disclose the HR file in its affidavit of documents.
[21] The defendant makes two objections to this paragraph: first, that progressive discipline and prior warning are no longer relevant as the plaintiff has shifted his claim from one of wrongful dismissal to one of constructive dismissal; second, that portion of the paragraph that references the alleged refusal to disclose the HR file in its affidavit of documents is irrelevant.
[22] The plaintiff’s argument that the October 23 meeting amounted to his constructive dismissal concerned the defendant’s alleged discovery of the plaintiff’s part time work outside his employment, of which it said it had been unaware and had not condoned. In light of the allegedly issues raised in this meeting, I find the pleading that the plaintiff had not been progressively disciplined or warned to be relevant.
[23] I find the reference to the fact that the HR file has not been disclosed in the defendant’s affidavit of documents to be scandalous, frivolous and vexatious. The fact, even if true, cannot assist the plaintiff in either his constructive dismissal claim or his bad faith claim, as it does not relate to the manner of his dismissal. If the file exists and is relevant and has not been produced, the plaintiff has remedies to obtain its production under the Rules, where the court can also make costs sanctions if appropriate.
[24] Leave to include paragraph 48 with the following specific wording is granted:
- To the plaintiff’s knowledge, there is nothing in the HR file relating to the employee, that would amount to or document any contemporaneous noting of any progressive discipline or of any prior warning letters by the defendant to the plaintiff.
7. Paragraph 80
[25] The plaintiff seeks leave to plead that the defendant took steps after it fired the plaintiff to shore up its position by fabricating a Conflict of Interest Policy. He also wishes to plead that the defendant took these steps after concealing the EI decision concerning the plaintiff from its affidavit of documents.
[26] Leave is granted to include the allegation that the defendant took the steps it did concerning the Conflict of Interest Policy after it terminated the plaintiff. It is relevant to his assertion that the defendant did not have cause to investigate his conduct at the time it did so and that the creation of the allegedly new policy was done to legitimatize its actions.
[27] Leave is denied with respect to the allegations that these steps were taken after the defendant had concealed the EI decision from its affidavit of documents. Not only is the phrase irrelevant, it is also inconsistent with the rest of the paragraph. The defendant’s affidavit of documents was sworn 2 October 2017, which could be the earliest date the EI decision was not listed. If the plaintiff is suggesting that the defendant took these steps concerning the Conflict of Interest Policy after October 2017, that is inconsistent with the timeframes in his pleading, being four years after his termination and, indeed, after the commencement of this action. If he is suggesting that the defendant should have listed the EI decision in its affidavit and did not, leave to advance that allegation is refused for the reasons set out in paragraph 23, above. Leave to include paragraph 80 with the following specific wording is granted:
- The defendant employer then took improper steps to shore up its position by fabricating a COI policy which purported to be created by the SMT, instead of by Council, and posting it on its intranet “Sharepoint” system, without communicating this new policy to any of the employees who were hired previous to the creation of this new policy and did so after the plaintiff was fired without legitimate cause.
8. Paragraphs 81-86
[28] The plaintiff seeks leave to include these paragraphs in a section headed “Employment Canada’s decision of January 16, 2014 siding with plaintiff, creating several Issue Estoppels in this wrongful dismissal case”.
[29] The defendant argues that these paragraphs cannot be relevant as they relate only to the plaintiff’s allegation that he was wrongfully terminated for cause, which he has now withdrawn in favour of a claim of constructive dismissal.
[30] I do not read the pleading so narrowly. The basis of the plaintiff’s proposed constructive dismissal claim is that the defendant determined to fire him for violating the Conflict of Interest Policy by working as an engineer part time outside his employment The plaintiff argues that the defendant did not tell him in the October 23 meeting that it had already decided to fire him on this basis, but instead told him that it was investigating his alleged breach of this Policy.
[31] Paragraphs 81-86 propose to allege that the defendant took the position with Service Canada that it was entitled to terminate the plaintiff for cause because he was working as an engineer outside his employment with the defendant, in violation of the Conflict of Interest Policy. The defendant took the position with Service Canada that the plaintiff had agreed to give up his private consulting work when he was hired. It indicated that it would see if it could provide Service Canada with a copy of the agreement it said the plaintiff signed. Ultimately it did not provide the agreement and Service Canada determined that misconduct could not be concluded as there was not enough evidence to support the employer’s statements that the plaintiff had agreed upon hiring not to work outside of his employment within the engineering field.
[32] I make no determination as to whether the plaintiff will be able to make out issue estoppel but he is entitled to plead the facts in support of his case. Leave is granted to include paragraphs 81-85 in the second fresh as amended statement of claim.
[33] Leave to include paragraph 86 is denied. The allegations in this proposed paragraph are not in any way tied to the plaintiff’s constructive dismissal claim and they are insufficiently pleaded to be relevant to his bad faith claim.
9. Paragraph 90
[34] The plaintiff seeks leave to include this paragraph under a heading “Lack of timely disclosure by the defendant employer”. The defendant objects to those portions of the paragraph that allege it has failed to produce certain documents in its affidavit of documents. For the reasons set out in paragraph 23, above, I find these allegations relating to the completeness of the defendant’s affidavit of documents improper and leave with respect to those portions of paragraph 90 is denied. Leave to include paragraph 90 with the following specific language is granted:
- Pre-termination and Post-termination lack of disclosure to the plaintiff: i. amounting to bad faith conduct at the time of constructive dismissal, the defendant concealing the full extent of the employer’s bad faith and repudiation of the employment agreement prior to the constructive dismissal of October 23, 2013.
B. Motion for Specific Productions to be Included in the Defendant’s Affidavit of Documents
[35] The plaintiff requests an order that the defendant include the following four documents or categories of documents in its affidavit of documents: “(1) the Human Resources (“HR”) file pertaining to the [plaintiff] including the EI decision related to the ROE and the Employee Handbook containing terms of employment; (2) Minutes of the Executive Committee and Affidavits of Ms. Bergeron related to the employment issues, along with a PVO [prosecutorial viability opinion] whether or not privilege is claimed; (3) correspondence between its senior management team with the Human Resources Committee (HRC), members of its governing Council, in its possession relating to this employment dispute matter; and (4) that PEO 2002 draft Conflict of Interest policy was never approved by any resolution of Council in 2002; and failed to list all communications between the Senior Management Team (SMT) and HRC to take steps after the termination of the [plaintiff] to create their own online Management Conflict of Interest Policy in an attempt to shore up and confuse the issues in the litigation.”
[36] The defendant argues that any motion with respect to its affidavit of documents is premature given the plaintiff’s reconstitution of his claim from a wrongful dismissal claim to a constructive dismissal claim. Nonetheless, it has agreed to a practical approach and a review of the relevance of these four categories on this motion.
1. The Human Resources File
[37] The defendant has agreed to produce the relevant portions of this file. It has agreed to recommend that the Employee Handbook be included, which is sensible given it is alleged to be the source of the Conflict of Interest Policy. It objects to producing the EI decision. For the reasons set out in paragraphs 28-32, above, the EI decision is relevant and should be included in the affidavit of documents.
2. Minutes of the Executive Committee and Affidavits of Ms. Bergeron related to the employment issues, along with a PVO [prosecutorial viability opinion] whether or not privilege is claimed
[38] The defendant included these Minutes in its original affidavit of documents but now takes the position that they are not relevant to the proposed amended claim given its change from a wrongful dismissal claim to a constructive dismissal claim.
[39] To the extent the Minutes deal with the determination made October 22 to terminate the plaintiff’s employment for cause and to pursue an allegation of a breach of the Conflict of Interest Policy, subject to a claim of privilege, they are to be produced as that remains at the heart of the plaintiff’s constructive dismissal claim. In the event there is a claim for privilege, the grounds are to be set out in Schedule “B” of the affidavit of documents. To the extent the Bergeron affidavits relate to this issue, they are to be produced.
[40] The prosecutorial viability opinion is given to the defendant by its counsel concerning a matter of proposed discipline. The opinion is subject to privilege unless waived. The prosecutorial viability opinion was discussed at an in camera session of the defendant’s executive committee, to which F. Goncalves, a member of staff, was invited. Contrary to the submissions of the plaintiff, I find neither Ms. Goncalves’ attendance at that meeting or the affidavits of Ms. Bergeron filed in the court action that arose from discipline proceedings waive the defendant’s privilege over the opinion. It need not be produced.
3. Correspondence between its senior management team with the Human Resources Committee (HRC), members of its governing Council, in its possession relating to this employment dispute matter.
[41] The defendant has agreed to produce relevant correspondence.
4. That PEO 2002 draft Conflict of Interest policy was never approved by any resolution of Council in 2002; and failed to list all communications between the Senior Management Team (SMT) and HRC to take steps after the termination of the [plaintiff] to create their own online Management Conflict of Interest Policy in an attempt to shore up and confuse the issues in the litigation.
[42] It is not clear what specifically the plaintiff requests be produced. The defendant has agreed to produce the 2002 Conflict of Interest Policy and relevant communications concerning the online Management Conflict of Interest policy.
[43] The affidavit of documents is to be sworn by an authorized representative of the defendant who is in its employ at the time the affidavit is sworn.
C. Motion to Withdraw Jury Notice
[44] The defendant consents to this relief and I so order.
D. Motion to Dispense with Mandatory Mediation
[45] The plaintiff wishes to avoid the cost of mediation as, in his view, the defendant is committed to its position and mediation will not be successful. It is these very situations where mediation often proves to be the most helpful. With the history of this matter and the slow progress being made by the parties left to their own devices, I find that mediation may assist the parties in framing the issues and discussing settlement. This request is denied.
E. Next Steps
[46] The plaintiff is granted leave to amend his fresh as amended statement of claim in the form of the Second Fresh as Amended Statement of Claim at Tab “B” of his motion record, subject to the determinations made in paragraphs 1-34, above. The defendant shall have 30 days from its receipt of the issued amended claim to file a defence. The parties shall then exchange new affidavits of documents.
[47] The defendant take the position that there should be a new examination of its representative, given the extent of the plaintiff’s amendments to his claim. The plaintiff takes the position that he does not wish to conduct a new examination. I cannot compel the plaintiff to examine the defendant. Should he fail to do so, the trial judge will determine the relevance of any evidence he proposes to rely on from the existing examination on the old pleading.
F. Costs
[48] The parties are to attempt to resolve the issue of costs of the motion and costs thrown away as a result of the amendments granted.
[49] If they cannot agree, the defendant shall serve its costs submissions within 20 days of the date of this decision. The plaintiff shall then have 20 days to respond. All submissions are to be delivered to me via email to my assistant trial co-ordinator, Ms. Meditskos at Christine.meditskos@ontario.ca.