COURT FILE NO.: 2814/16
DATE: 2021/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Lenting
Plaintiff
– and –
Huron Tire & Auto Inc., operating as Haugh Tire
Defendant
Jonathan Pitblado, for the Plaintiff
Nic Preston, for the Defendant
HEARD: May 10 & 11, 2021 (Closing Submissions heard in writing)
george J.
Background
[1] The Plaintiff worked for the Defendant from June 2014 to June 2016, when he was terminated. He was 22 years old. During the course of his employment he struggled with a drug addiction. He claims to have been wrongfully dismissed. He also says that he was discriminated against because of his disability. He frames it this way at paras. 8 through 12 of the Statement of Claim:
The Plaintiff was terminated while in an after work hours drug rehabilitation program, without proper notice, or pay in lieu thereof…
The plaintiff claims that [the Defendant’s conduct] was a breach of the duty to properly accommodate disabled workers under the Ontario Human Rights Code and constitutes the tort of negligence and also breached the contractual term of fair dealing.
The plaintiff claims that [the Defendant’s conduct] constitutes the tort of intentional infliction of mental suffering.
The plaintiff claims that [the Defendant’s conduct] was a breach of the implied terms of reasonable notice and fair treatment and was thus a breach of contract. It was also a breach of the Ontario Human Rights Code’s provisions re disabled workers and the duty to accommodate same. Being dismissed without proper notice also eliminated the plaintiff’s ability to access S.T.D. sponsored treatment costs and or drugs during what would have been the reasonable notice period.
The plaintiff claims that both moral damages and punitive damages should apply to the actions of the defendant as set out herein.
[2] The Defendant submits that it had just cause to terminate the Plaintiff, but chose not to proceed in that way. It paid the Plaintiff two weeks salary pursuant to the Employment Standards Act (“ESA”) which, it says, was sufficient. In other words, the Plaintiff has been paid in lieu of reasonable notice. At paras. 38 through 40 of its written submissions the Defendant succinctly sets out its position:
Notwithstanding the fact that no cause was asserted at the time of the Plaintiff’s termination, the Defendant takes the position that sufficient grounds existed to terminate the Plaintiff’s employment for just cause.
In any event, even if the termination was not for cause, the Plaintiff received pay in lieu of reasonable notice.
Further, the Defendant asserts that its reasons for terminating the employment of the Plaintiff were solely related to the Defendant’s misconduct, and had nothing to do with his disability or his participation in an after-hours drug addiction recovery program.
[3] Its alternative position is that even if the Plaintiff was terminated without just cause, and even if he did suffer damages, he failed to adequately mitigate against them.
[4] The Defendant’s position is that the Plaintiff’s termination had nothing to do with his drug addiction.
Issue(s)
[5] The issues, broadly stated, are, first, was the Plaintiff terminated without just cause? Second, did the Defendant violate the provisions of the Ontario Human Rights Code? Third, if either, or both, of these questions is answered in the affirmative, what relief is the Plaintiff entitled to (i.e. in the case of wrongful termination what is the reasonable notice period)?
Evidence
Introduction
[6] I heard testimony from five witnesses. The Plaintiff testified on his own behalf. For the Defendant, I heard from Rob Bryson who was, at the relevant time, its Store Manager; its Human Resources Consultant Cheryl DeCooman; Nancy Cox who, in 2019, held the title of Administrator; and General Manager Christine McClay.
David Lenting
[7] As indicated, the Plaintiff was employed by the Defendant for 2 years. He was a tire technician. He earned $16.50/hour and worked 44 hours per week. At the relevant time he lived with his parents, whose home was about a five minute drive from the Defendant’s facility.
[8] The Plaintiff says that during the course of his employment he developed a drug addiction. He testified that in and around September of 2015 the Defendant’s representative, Rob Bryson, confronted him about it. At para. 9 of his trial affidavit, he deposes that:
- It was apparent by his tone of voice, facial expressions, and words used, what he thought of illicit drug users. In fact, he yelled at me, inches from my face on or about September 28, 2015 “are you on drugs?” He yelled at me loud enough that others in the area probably heard him. I had a minor motor vehicle accident on the drive home.
[9] He testified that he received a written warning on September 29, 2015, in which Mr. Bryson expressed his opinion that he was indeed under the influence when they spoke the day before and that he would be fired if it happened again. This, the Plaintiff argues, violated the Defendant’s Substance Abuse Policy. That same day his father met with Mr. Bryson.
[10] On October 28, 2015 the Plaintiff’s father emailed the Defendant’s Human Resources Department to request that the October 28^th^ reprimand be removed from his son’s file. On November 3^rd^ he received a response confirming that all prior verbal and written warnings would be removed.
[11] The Plaintiff entered a rehabilitation program (at Westover) in the Fall of 2015. He says he advised the Defendant of same. Afterwards, he provided to Mr. Bryson a letter dated November 13^th^ confirming his completion of the residential part of the program and that further outpatient aftercare sessions would be required. On December 8, 2015 he received what he described as a “nice” letter from the Defendant’s regional manager. He took this as a sign that all was well, leading him to return to work on December 9^th^.
[12] Things went reasonably well until February 2016 when, according to the Plaintiff, Mr. Bryson searched his coat in the break room, without his consent. He was looking for drugs but did not find any. The Plaintiff says that this “humiliated” him.
[13] On March 11, 2016 the Plaintiff received a verbal warning about a missed shift. At para. 23 of his trial affidavit, he puts it this way: “I was not planning on missing a shift; I simply overslept.” He offered this explanation to the Defendant, in writing.
[14] On March 24^th^ he received another verbal warning. This was in relation to what the Plaintiff initially described as “playful dealings” with a co-worker.
[15] With respect to the events of June 7 – which preceded his termination, and which arose from a workplace fight between two co-workers (Dan and Steve) – and in response to the allegation that he failed to give a statement about it as directed, he says he did provide a response but that it was “not good enough” for Mr. Bryson. In fact, he says he provided two. This is how describes it in his trial affidavit, beginning at para. 26:
Regarding the June 7, 2016 “failure to give a statement” issue raised in the pleadings, I attach as Exhibit K my handwritten statement that was not good enough for Rob Bryson and as K-2 my second handwritten statement / PS. The second part simply recorded my thoughts that occurred a few minutes after brought into the office. The people mentioned in the top part are Mike, being one of the owners, and Rob, being Rob Bryson and Steve who was one of the people supposedly in the fight with someone.
Either Rob or Mike asked me in this meeting whether I had seen a fight between Steve and Dan, the tire technician. I answered that I had not seen anything, which was true.
I walked this document into Rob Bryson’s office the same afternoon and he said he did not need it, and thus I put it on top of his recycle pile.
An hour or so later, an OPP officer named Jason arrived and asked out loud for people to give him statements about what happened between Steve and Dan.
I asked Rob Bryson to simply give the officer a copy of my statement that I had given to Rob. I saw Rob Bryson do that.
I then went back to work.
Within a day or so, I received my firing letter.
[16] Understandably, the Plaintiff was quite upset about his termination. I am told that, at least at this particular time, the Plaintiff was clean and had, as of June 13, 2016, finished his treatment program. Unfortunately, within a week of his firing he relapsed.
[17] On cross-examination, he denied ever getting or being high while at work. When speaking to Mr. Bryson, he denied ever being incoherent. He also confirmed that when his father and Mr. Bryson met on September 29^th^, he was not present. That said, he believes this is when the Defendant first became aware of his addiction issues.
[18] The Plaintiff was not entirely clear on when he became aware of the Defendant’s Substance Abuse Policy. It might have been while he was in treatment.
[19] During cross I also learned that the Plaintiff’s father attended at the workplace on February 23, 2016 to advise Mr. Bryson that he had found drugs in the Plaintiff’s possession and that he had “kicked him out of [his] house”. The Plaintiff and Mr. Bryson discussed this after the fact. According to the Plaintiff, Mr. Bryson threatened to call the police if he did not allow him to search his coat. The Plaintiff allowed the search. The Plaintiff then revoked his consent that permitted Mr. Bryson to speak with his father.
[20] I also learned more about the incident in March 2016 when he was denied a request to take time off due to a staffing shortage. In his trial affidavit, the Plaintiff was very scant on details about this. In any event, as I understand it, on March 10^th^ he asked if he could take the 11^th^ off. Even though his request was denied, he did not attend work on the 11^th^. He says his alarm did not go off (leading him to sleep in until 3pm). It was, he says, pure coincidence that he missed his shift on a day he wanted (but was not permitted) to take off.
[21] The Plaintiff’s trial affidavit was also somewhat foggy in relation to the March 24^th^ incident; what I earlier referred to as the “playful dealings” incident. As it turns out, the Plaintiff was accused harassing a female co-worker. She said she had to kick the Plaintiff in the knee in order for him to stop. Apparently, he had played with her hair; grabbed her strings (which I did not really understand); attempted to trip her, and “followed her around” the workplace. This behaviour led to the female co-worker’s partner attending the workplace and confronting the Plaintiff, which resulted in a physical altercation. In his trial affidavit he characterized the warning he received as “fair”. On cross-examination, he seemed to acknowledge that he had engaged in harassing behaviour, adding that he “had to take courses for it.” The Plaintiff actually said a lot more about this event, and its aftermath, but very little of it made any sense to me.
[22] The Plaintiff’s trial affidavit was similarly vague about the June 2016 incident. Once again, I had to learn most of what I needed to know about it (from his perspective) on cross-examination. I have already alluded to the fact that this arose from an altercation between two gentleman named Dan and Steve. As I understand it, this dispute took place at the Defendant’s place of business and that the Plaintiff was nearby. I think the Plaintiff testified that at the time he was “in the back doing shop tires”. I, again, could not make much sense of the Plaintiff’s explanation on this front. He seemed to engage in a semantical argument with counsel about the difference between being asked to provide a statement of what he observed, and being asked to describe whom hit whom (which is what the Plaintiff says he was asked to write a statement about). I am not certain I understand the distinction or why this became such a point of contention; at least not on the Plaintiff’s account. In any case, Mr. Bryson did not like the Plaintiff’s response (or lack of response), and took the position that the Plaintiff was insubordinate as he failed to assist his investigation into what was a clear workplace health and safety issue.
[23] As indicated, the Plaintiff was terminated shortly after this event.
[24] In terms of mitigation, the Plaintiff testified that he has taken some courses, although he had to drop out of one. After the attempt to further his education, he gained employment with Keller Roofing where he worked for a summer and part of the Fall and Winter (3 to 4 months or so).
Rob Bryson
[25] At all material times, Mr. Bryson was the Defendant’s store manager. He was the Plaintiff’s direct supervisor.
[26] He detailed the Defendant’s business which is to provide tire, automotive maintenance and repair services. He also described the Plaintiff’s role as a tire technician, which is, as he calls it, a “non-specialized entry level role”. In his trial affidavit he deposes that it “required no formal education, certification or training and simply put, involved the routine removal, repair and reinstallation of tires, as well as simple mechanical components from customer vehicles such as air filters, headlights bulbs, and performing basic automotive services, including uncomplicated fluid changes”.
[27] In addition to his hourly salary, the Plaintiff was permitted to enroll in the Defendant’s group health and dental benefit plans, to which the Defendant contributed 50% of the health and dental premiums, and 100% of long-term disability premiums.
[28] Mr. Bryson deposes that until August 2015 the Plaintiff’s job performance was “relatively unremarkable”.
[29] He talked about an incident in August 2015 when the Plaintiff came to work after being in an accident while driving a rental car. He says that the Plaintiff, after arrival at work, hoisted the rental car up and removed its tires. He deposes that: “The Plaintiff repeatedly remarked that he required a work order for the car, but he could not identify what work needed to be done, or that it was his rental car that he had just driven into the shop”. When questioned about the car and why it was there the Plaintiff insisted that everything was fine and continued to work on the car. Mr. Bryson says he believed that the Plaintiff was unwell and that he told him to take a nap in his office.
[30] Mr. Bryson testified that the Plaintiff did not follow his direction; immediately returned to the shop to continue his work; at which point he told the Plaintiff, again, to “[go] home in order to rest and recover”. This was followed by the Plaintiff’s father attending at the Defendant’s office to speak with Mr. Bryson. During this meeting it was agreed that the Plaintiff could take a week off in order to find a replacement vehicle for the rental, which I am told was a complete write-off.
[31] He described a further incident on September 28, 2015. Mr. Bryson advises that while the Plaintiff was attempting to repair a truck tire, a co-worker overheard him “ranting about chemical reactions and explosions while inspecting the truck tire and was convinced that a chemical reaction in the tire had caused the puncture”. As Mr. Bryson tells it, when he inquired of the Plaintiff about what he was doing he could not provide a coherent response. In what could be construed as another act of insubordination, when instructed by Mr. Bryson to leave this task and do something else he, according to Mr. Bryson, was “soon back at the truck attempting to take yet another photo of the inside of the tire.”
[32] Suspecting once again that the Plaintiff was unwell, and because he, to him, appeared to be a risk to himself and others in the shop, he sent the Plaintiff home for the rest of the day warning that if this type of behaviour continued he would be terminated. A warning letter to this effect was prepared and provided to the Plaintiff, which was filed as an exhibit.
[33] The Plaintiff and Mr. Bryson met in person the following day. Mr. Bryson asked about the Plaintiff’s drug use and whether he would be able to work. After reiterating his safety concerns Mr. Bryson says he allowed him to return to work.
[34] Mr. Bryson testified that he continued to observe the Plaintiff exhibit strange behaviour. For instance, he saw the Plaintiff having difficulty repairing a tire, a task he was very familiar with and which he normally completed quite easily. According to Mr. Bryson, when he asked him what he was doing, the Plaintiff responded by saying. “I don’t know”, and began ranting again about chemical reactions and explosions. As a result, the Plaintiff was sent home again. Mr. Bryson’s contemporaneously taken notes were attached to his trial affidavit.
[35] Mr. Bryson recounts his discussion with the Plaintiff’s father – on September 29, 2015 – which is when he learned, apart from suspicions he already had, about the Plaintiff’s substance abuse problem. He recalls advising the Plaintiff’s father that his son was a valuable member of the team and that they would support him and welcome him back when he was well. Mr. Bryson provided the Plaintiff’s father with information about the Employee Assistance Program (“EAP”) and a copy of the Defendant’s Substance Abuse Policy.
[36] He was aware of communications between Cheryl DeCooman (of the Defendant’s Human Resources Department) and the Plaintiff’s father. It is his understanding that Ms. DeCooman told the father that the Defendant understood its duty to accommodate, and would do so, but stopped short of guaranteeing the Plaintiff’s continued employment given theirs is a safety-sensitive industry.
[37] Mr. Bryson was also aware of Ms. DeCooman’s indication to the Plaintiff’s father that his son’s disciplinary record would be wiped clean. In other words, he understood that when the Plaintiff returned to work he would do so unburdened from all previously recorded disciplinary notes in his file.
[38] In December 2015, and after completing the residential portion of his treatment program, the Plaintiff returned to work. According to Mr. Bryson, from this time until about February 2016 the Plaintiff worked with satisfactory attendance and without any noticeable issues.
[39] On February 23, 2016, the Plaintiff’s father attended at the Defendant’s workplace and spoke to counter service advisor Kim Quick advising that he found drugs in his son’s coat pocket and that he had kicked him out of his house. After receipt of this information Mr. Bryson met with and spoke to the Plaintiff to, first, confirm that he would support his recovery, and second, to inquire if there was anything he could do to assist in his rehabilitative efforts. Mr. Bryson later spoke to the Plaintiff’s father to confirm same.
[40] He met with the Plaintiff again on February 25^th^ to inform him that he had spoken to his father and to advise that he believed there was sufficient cause to further investigate his drug use. He reiterated to the Plaintiff that if he wanted to continue his treatment course this would not impact his employment. In response the Plaintiff revoked his consent that had to that point allowed Mr. Bryson to speak about him with his father.
[41] Mr. Bryson recounts what I will call the March incident when the Plaintiff requested a day off but who, after his request was refused, did not attend work. This was a violation of the Defendant’s attendance policy, which led to a verbal warning.
[42] Mr. Bryson also addressed what he called the Plaintiff’s harassment of his co-worker Ms. Quick. Mr. Bryson was aware of the Plaintiff’s behaviour; Ms. Quick’s response which was to kick him in the knee; and the ensuing altercation between the Plaintiff and Ms. Quick’s boyfriend. This too led to a verbal warning.
[43] Lastly, Mr. Bryson spoke to the events of June 2016. I will start by saying that, on this point, his trial affidavit was far more detailed than the Plaintiff’s.
[44] On June 9, 2016 he says the Plaintiff was witness to the altercation between Steve and Dan. Everyone present at work that day, including the Plaintiff, was asked to provide a witness statement. He recalls the Plaintiff, after writing his, crumpling it up and tossing it in the trash. Mr. Bryson retrieved the statement. When asked again to provide a “full statement” about what happened, the Plaintiff refused.
[45] Mr. Bryson ultimately contacted the police. When the officer arrived, all staff who were present were asked to provide a statement. Despite refusing to provide one to the Defendant, Mr. Bryson advises that the Plaintiff readily provided one to the police.
[46] On the decision to terminate the Plaintiff, Mr. Bryson deposes this at paras. 71 to 73 of his trial affidavit:
The recent culmination of the Plaintiff’s deliberate absence from work and failure to communicate with the Defendant, coupled with his harassment of Kim Quick, as well as his lack of engagement and subsequent refusal to assist the Defendant with its workplace investigation, resulted in the Plaintiff’s employment being terminated on June 9, 2016.
Even though I, together with the Defendant, believed that there was ‘just cause’ to terminate the Plaintiff (given what is set out above), it was instead decided that the Defendant would rely upon a ‘without cause’ termination, so as to enable the Plaintiff to still receive his termination pay and also access his Employment Insurance.
The Plaintiff was therefore paid two (2) weeks in lieu of notice and his final pay of all outstanding wages and vacation pay was deposited into his account on June 16, 2016…
[47] When pressed on cross-examination, Mr. Bryson maintained his position that the Plaintiff’s termination had nothing to do with his disability (i.e. drug addiction). He casts it as the inevitable result of the Plaintiff’s insubordination (in particular in June 2016), deliberate and unauthorized absence on March 11^th^, and harassment of Ms. Quick.
[48] Much of the balance of his cross-examination focussed on communications between him and Ms. DeCooman; in particular whether the notes and memos (memorializing verbal warnings) were sent to her, someone else in the Human Resources department, or to others in management positions.
[49] In respect of the June 2016 altercation between Steve and Dan, Mr. Bryson was referred extensively to his examination for discovery. For instance, he acknowledged that while the altercation occurred in the “front of the shop” with “quite a few employees around”, he did not specifically know who was there.
[50] He confirmed that while he signed the termination letter, the decision was ultimately made by the owner, Mr. Koch. He also confirmed that while he knew the Plaintiff had completed the residential portion of his treatment program, he did not know whether he was still involved in its aftercare sessions. To be precise, he testified that he “did not know where [the Plaintiff] was at in his course”, which I note is slightly at odds with what he said at discovery which was “as far as I knew” the Plaintiff was still involved in the course.
[51] Lastly, he acknowledged fishing the Plaintiff’s crumpled statement out of the garbage and providing it to the police.
Cheryl DeCooman
[52] Ms. DeCooman is the Defendant’s Human Resources consultant.
[53] She became aware of the Plaintiff’s drug addiction after being told by Mr. Bryson. She was also made aware of the Plaintiff’s failure to obey what she called “certain work instructions”. She knew that, as a consequence, Mr. Bryson had sent the Plaintiff home on a couple of occasions.
[54] On the strength of the Plaintiff’s signed authorization she communicated with his father about him and his employment situation. She spoke to him by phone on one occasion, at which time she assured him that his son would be supported and accommodated, to the best of their ability and “up to the point of undue hardship”. She deposes this, at paras. 9 and 10 of her trial affidavit:
[I] made it clear to the Plaintiff’s father that the Defendant had no interest in terminating the Plaintiff. Rather, it was instead the Defendant’s interest to ensure that the Plaintiff was healthy, fully recovered and therefore able to be back at work safely.
The Plaintiff’s father and I had also discussed the details of the Plaintiff’s enrollment in a fourteen (14) day detox program, and that he would thereafter be moving to a treatment program at Westover Treatment Center in Thamesville, Ontario. Coupled with this, we discussed the possibility of the Plaintiff applying for a ASO Short-Term Illness and Long-Term Disability (“LTD”) benefits, however and in response, the Plaintiff’s father indicated that the Plaintiff’s family had already arranged for this to be covered under their own family plan.
[55] They also exchanged correspondence, including on October 28, 2015 when the Plaintiff’s father sought confirmation that his son would be able to resume work upon completion of his program of rehabilitation. He also asked that the Plaintiff’s disciplinary record be wiped clean, to which Ms. DeCooman agreed.
[56] She confirmed that the Plaintiff did indeed return to work in December 2015. She testified that, to her knowledge, there were no issues, reports or concerns with his work and behaviour until June 2016. She advised that, in addition to the June events that once again brought the Plaintiff to her attention, she learned about the incidents from February and March, as described by Mr. Bryson. In her assessment, these incidents, cumulatively, “constituted a serious and irretrievable breach of the relationship of the trust that the Plaintiff was obliged to maintain”.
[57] She was consulted by the Defendant’s management on what to do about the situation, deposing that “it was collectively decided together with the advice of legal counsel, that the cumulative effect of the Plaintiff’s behaviour between February 2016 and June 2016, as well as his wilful and deliberate refusal to then carry out a reasonable instruction regarding the aforesaid Occupational Health and Safety incident, warranted the Plaintiff’s termination”.
[58] Like Mr. Bryson, she believed the Defendant had sufficient grounds to terminate the Plaintiff with cause. She says they decided not to proceed in that fashion so the Plaintiff could still receive his termination pay and be able to access Employment Insurance.
[59] Ms. DeCooman was adamant that the Plaintiff’s termination had nothing to do with his drug addiction. She says the Defendant did all that it could to support him in his treatment and recovery.
[60] Cross-examination focussed largely on the Defendant’s corporate structure and what she knew about the involvement of the owners and other corporate officers in this matter, specifically the decision to terminate. She was asked about Lorne Koch (owner and manager), Mike McNichol (who she did not know), Christine McClay (general manager), and Al Barnum (President of an affiliate of the Defendant).
[61] I am not entirely certain this line of questioning landed anywhere all that important. I learned that Christine McClay gave Ms. DeCooman permission to consult the company’s labour/employment lawyer, which was a logical step to take. I also learned that she did indeed speak to Mr. Koch about the Plaintiff, which appeared to be in the normal course of their business relationship, as she was, after all, the Defendant’s human resources consultant. She spoke to Mr. Koch by phone and did not take any notes.
[62] I suppose, although I am not certain, that the point Plaintiff counsel was attempting to make is that the ultimate decision on termination lied with both Mr. Koch and Ms. McClay, which, I say, makes perfect sense as it was abundantly clear that Ms. DeCooman did not have the authority to make that call.
Nancy Cox
[63] Ms. Cox testified. Her evidence was brief and to the point. She deposes that, on June 9, 2016, Mr. Bryson asked her to sit in on his meeting with the Plaintiff. She did so and was present when the Plaintiff was advised of his termination. Her observations were recorded in a statement, which she attached to her trial affidavit.
[64] On cross-examination she too was asked about Mr. McNichol and Mr. Barnum, but otherwise offered very little that was helpful.
Christine McClay
[65] Ms. McClay described the ownership and management structure of Tirecraft and Huron Tire. She also provided a more fulsome description of the roles held by each of Mr. McNicholl (who is a 25% owner), Mr. Koch (who too holds a 25% interest), and Barnum Holdings (which has 50%). Mr. Bryson was manager of the location in question and was the Plaintiff’s direct supervisor. When asked about why and when Ms. DeCooman would become involved in an employee discipline issue, she advised that that would be up to the store manager, in this case Mr. Bryson.
[Ontario Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
[66] The Plaintiff pleaded and relies upon s. 46.1(1) of the Ontario Human Rights Code, which provides as follows:
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8.
[67] It is acknowledged that the Plaintiff suffered from a drug dependency during his time with the Defendant. It is also long settled that a drug addiction is, for the purposes of the Code, a disability.
[68] I do not know whether this is agreed upon, but I find – based on the overwhelming evidence, and for reasons that will become apparent in the balance of my comments – that the Defendant accommodated the Plaintiff by allowing him to pursue treatment while maintaining his employment. That said, and as pointed out by Defendant counsel in his written submissions, accommodation was not a license for the Plaintiff to behave as he pleased. That is to say, an accommodated employee can be terminated so long as there is no nexus between their disability and termination; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre) 2015 SCC 39.
[69] Let me start by setting out some fairly obvious findings. First, there can be no question that the Plaintiff did not disclose his addiction to the Defendant in a timely way, and that Mr. Bryson only became aware of it after a series of regrettable and unfortunate events. Consider the Supreme Court’s comments in Central Okanagan School District no. 23 v. Renaud where the court makes it clear that accommodation is a “multi-party inquiry and that an employee seeking an accommodation is responsible for requesting accommodation and must facilitate the search for accommodation”. It went on: “The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the disability. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner.”
[70] I further find that, prior to disclosure, there was nothing that would have led the Defendant to begin an inquiry into whether the Defendant in fact suffered from such a disability. In other words, neither the August 25, 2015 incident (involving the rental car), nor the September 28, 2015 incident (when the Plaintiff went on about chemical reactions in tires) would have led a reasonable person to suspect, and thereby inquire about, a drug dependency. In the event I am wrong – and I might be, as I acknowledge that there is evidence that Mr. Bryson asked him if he was indeed using drugs – I find that the Defendant fulfilled its duty to inquire, evidenced by the fact that it was these very events that led to the Defendant’s discovery of the drug issue. To that end, I note that Mr. Bryson asked the Plaintiff about his well-being after each of the August 2015 and September 2015 incidents, to which the Plaintiff responded in the affirmative; and that when the September 29^th^ warning was issued and in response to Mr. Bryson asking whether he was “stoned”, the Plaintiff said no. In the circumstances, I am not certain what else the Defendant could have done.
[71] In any case, I find that the quick decision to rescind previous disciplinary warnings is reflective of both the Defendant’s surprise in learning of the disability, and level of understanding about addiction and the personal toll it can take.
[72] Second, other than attending treatment there can be no dispute that the Plaintiff did little to assist in the accommodation process. This is important because apart from the Plaintiff’s father disclosing his son’s dependency, the Plaintiff did not do much, other than on occasion show disrespect to Mr. Bryson and reveal himself to be a disruptive force in the workplace. As I said, I am not certain what the Defendant could have done other than what it did do. It allowed the Plaintiff to be absent from work to pursue a program of rehabilitation; it agreed to wipe clean his disciplinary record (up until the point of disclosure); and, on the whole of the evidence its representatives were quite understanding of his predicament. Contrast that with the Plaintiff’s initial concealment of his addiction; his (I find) blatant insubordination by missing work when he was not granted leave; his admitted harassing behaviour in the workplace; and his seemingly rash decision to cut his father out of the loop, which was his right, but irresponsible in the circumstances.
[73] Further to the Tribunal’s decision in Persuad v. Toronto District School Board 2009 HRTO 1728 the Plaintiff must first establish a prima facie case of discrimination. The Tribunal elaborates further in Touseant v. Thunder Bay (City) 2009 HRTO 2066 where, at para. 11, it writes this:
[I]t is well established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not over, and the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to an applicant. In many, if not most, the burden will shift to the respondent to provide a non-discriminatory reason for its actions.
[74] I find that for the period up to and including the date of disclosure (September 29, 2015) the Defendant did not breach the Code and, as such, the Plaintiff is not entitled to relief.
[75] What of the period that followed – the 8.5 months or so from September 29, 2015 to June 9, 2016? It is important to remember what happened in and around the date of disclosure, and that is: The Defendant provided information about its Employee Assistance Program, and a copy of its Substance Abuse Policy; it promised that he would not be terminated because of his addiction and would have his job when done treatment; it agreed to speak with and coordinate matters with his father (which the Defendant did until the Plaintiff revoked his consent); and committed to not rely on the warnings issued before disclosure. This is exactly what the right to accommodate contemplates. There is absolutely nothing else it could have done to accommodate the Plaintiff.
[76] That then begs this question: Did the Defendant honour its commitments and promises? In my view, it clearly did. As indicated, the Defendant’s representatives worked with the Plaintiff’s father, with the Plaintiff’s consent and at his direction. The Plaintiff did in fact attend a treatment program, including a residential portion which kept him away from the workplace for a period of time. The Plaintiff did return to work when he was done.
[77] This blows apart the whole notion that the June 2016 event was a ruse designed by the Defendant to rid itself of the Plaintiff because of his addiction, without saying so. In fact, that argument makes no sense. It is entirely at odds with how the Defendant treated the Plaintiff to that point, and fails to recognize how the Defendant treated his unexplained absence in March, his admitted harassment of a female co-worker, and his physical altercation with the co-worker’s boyfriend (in the workplace no less). If the Defendant wanted a ruse to terminate the Plaintiff, surely either or both of those incidents would have sufficed.
[78] Consider the complaint that Mr. Bryson embarrassed him in the workplace. There is important context here. First, it was the Plaintiff’s father who attended to advise that he found drugs and kicked him out of the family home. Second, given the circumstances and history, Mr. Bryson had an obligation to follow up on this information directly with the Plaintiff. This casts in a very different light the Plaintiff’s allegation that his privacy was violated. Third, in his written submissions Plaintiff counsel makes much of the fact that when searched no drugs were found on the Plaintiff. While that is true, remember that at no point has the Plaintiff disputed the information conveyed by his father. Nor did he call his father to testify. It is also worth noting that the Plaintiff signed off on Mr. Bryson’s contemporaneous note of their interaction. This leads me back to the point I just made, which is, if the Defendant was eager to terminate the Plaintiff, this would have been the time to do it as he had clearly breached his return-to-work conditions. The truth of the matter is, the Defendant wanted the Plaintiff to succeed.
[79] Plaintiff counsel’s submissions focussed intently on the jurisprudence that has developed in this area of the law, in particular Grace J.’s decision in Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, which was the first time a court had relied upon s. 46.1(1) of the Code to award non-pecuniary damages. Counsel’s summary of that decision, and those that followed it, is well done. With that, I obviously do have the authority to award damages under this provision should I find that the Defendant discriminated against the Plaintiff on a prohibited ground. Wilson also stands for the proposition that if even only a small part of the reason for dismissal was related to a prohibited ground, damages can be awarded. In other words, the disability (in this case addiction) need only be a factor, and not the only or primary factor, in the decision to terminate. We also know that damages can be awarded even if there is limited evidence as to the effect of the violation on the Plaintiff, which was the case in Wilson.
[80] The issue is whether there was in fact a violation and, in the particular circumstances of this case (as it was in Wilson), whether there is evidence of “loss” or “injury”, even if with only minimal impact.
[81] Plaintiff counsel also spent some time commenting on those witnesses I did not hear from, asking that I draw a negative inference from their absence. These include those from the Defendant’s upper management and the female co-worker (Ms. Quick) who was, on the Plaintiff’s own admission, harassed by him. He also, I think, is asking me to draw a negative inference from the fact that Ms. McClay who, while she testified, did not swear and file a trial affidavit. I do not give effect to these arguments. To state the obvious, someone from upper management and/or ownership clearly did have the final say on whether to terminate the Plaintiff, but I do not know how, on the particular facts of this case, this matters. It was conceded, I believe by Ms. DeCooman, that this was the case, and apart from that, the critical Defendant witness was clearly Mr. Bryson. I do not see any significant gaps in the evidence, at least none that would weigh against the Defendant’s position. As for Ms. Quick, given the Plaintiff’s own account of his interaction with her (and her boyfriend) what possible relevant information could I have learned from her?
[82] As for Ms. McClay, she testified. I am not sure what else to add other than to point that out. Her evidence was uncontroversial, largely undisputed, and she was available for cross-examination.
[83] The Plaintiff also places undue emphasis on the one event in June 2016 that immediately preceded his termination. His counsel likens what happened there to what happened in Wilson by quoting Grace J. who, at para. 76, writes that it (Solis) finally “had the excuse it needed to rid itself of the plaintiff once and for all”. This is not, on the face of it, a good analogy, because it ignores all that preceded it. I have already expressed my view that, as opposed to the employer in Wilson, this Defendant clearly supported and wanted the Plaintiff to succeed. This is just not an apt comparison. Plaintiff counsel goes so far as to describe the June 2016 incident as a “tempest in a teapot”, the Plaintiff himself going to great lengths in his testimony to minimize it.
[84] I take a slightly different view of it. There is no question that, assuming the Defendant knew of the Plaintiff’s disability, and were this the only incident, it would not have been a stretch to draw a direct link between his addiction and the termination. However, for reasons already elaborated on, this is just not the case. It was not an isolated incident. Much preceded it, including significant attempts at accommodation, a blatant act of insubordination (by not attending work when leave was specifically denied), documented and admitted harassing behaviour, and a physical altercation (in the workplace).
[85] Set all of that aside for a moment and focus on the June 2016 event. Was it as minor as the Plaintiff says? Was it a tempest in a teapot? Again, I am not suggesting this alone would have warranted termination, but remember that the question I am answering now is whether the Plaintiff’s disability was at least a factor in the Defendant’s decision.
[86] Consider the context and circumstances. There was a serious incident involving two employees – Steve and Dan. This was a physical altercation that occurred in the workplace, on company property, and during regular work hours. Understandably, each employee present was asked to recount what they saw and heard. Apart from this being a reasonable expectation and a matter of common sense, under s. 28(1)(a) and (d) of the Occupational Health and Safety Act it is actually a requirement; one which (I find) the Plaintiff did not take seriously.
[87] On this, the Plaintiff’s evidence was telling. To his credit he did acknowledge that workplace violence is a serious issue and recognized the need for an employer to obtain as much information as possible in order to address it. The problem for him is, despite what he tried to sell at trial, he did not in any way comply with Mr. Bryson’s direction. The evidence reveals that, for some reason, the Plaintiff took exception to Mr. Bryson’s request that his statement be confined to what he actually saw or heard. I am not entirely sure why this was so objectionable, but in any case this led the Plaintiff to crumple up his statement and throw it in the trash, which (regardless of his reasons) is the height of childish behaviour and a display of utter disrespect. It is true that we have the benefit of that statement, but only because Mr. Bryson retrieved it from the garbage. Again, this alone would not, under any circumstances, be grounds for dismissal, but when placed in its proper context it makes clear that this event, together with all that preceded it, had nothing to do with the Plaintiff’s drug addiction or decision to terminate, and everything to do with the Defendant’s realization that the Plaintiff was no longer a good fit. Not only that, but what follows is fatal to the Plaintiff’s credibility and leads me to, wherever there is conflict in the evidence, prefer the testimony of the Defendant’s representatives over his.
[88] What do I mean? The Plaintiff very clearly indicated near the beginning of his testimony that the reason he could not prepare a statement to Mr. Bryson’s satisfaction was that he did not see or hear anything. As it turns out this was not true, as during his oral examination for discovery he made clear that he had. For instance, when he testified then he did recall “yelling”; Dan “reaching for the phone and trying to call the cops”; and someone not allowing Dan to place that call. He recalled, then, what he heard and where he was when he heard it. He recalled that “they were talking, like complaining about how long the tire was taking and stuff”; and that from where he was one “[could] see the whole front shop”. More importantly, when asked what he actually saw he acknowledged that he looked into the shop to see what was happening, indicating that he “saw a bunch of people rushing around and seeing if Steve was ok”.
[89] In the result, I find that the Defendant did not violate the Ontario Human Rights Code. There is simply no evidence to support the argument that the Defendant terminated the Plaintiff because of his drug dependency, that his drug dependency played even a small role in its decision, or that the Defendant in any way injured the Plaintiff’s dignity, self-respect or feelings.
Wrongful Dismissal
Reasonable Notice
[90] The Plaintiff says that he was wrongfully dismissed. To be precise - recognizing that he was employed by the Defendant for only two years, and that his position was only semi-specialized - he argues that two and a half months of reasonable notice is in order (minus the two weeks he was paid), subject to any mitigation claw back. His counsel argues that, before mitigation, he is entitled to wrongful dismissal damages in the amount of $5,808.00.
[91] The Defendant says that, while it believes it had cause to terminate the Plaintiff, it chose not to. It argues that the payment of two weeks salary in lieu of notice was sufficient. Its alternative position is that, should I find otherwise, the Plaintiff’s common law entitlement to reasonable notice should be limited to 1 to 1.5 months (less the two weeks already paid per the ESA), and then clawed back to nothing because of a failure to mitigate.
[92] The interesting aspect of the Defendant’s argument is that, even though it did not actually terminate the Plaintiff for cause, it says I now have the ability to retrospectively determine that it did indeed do so on that basis. While I may have that ability (and I hold out the possibility that I am wrong on that), it does not make sense in the circumstances of this case and, in any event, to the extent anyone in the future would rely on this judgment, it strikes me that such a judicial approach could be patently unfair to others who find themselves in the Plaintiff’s position. In other words, as a matter of common sense, an employer’s stated grounds for termination must crystallize at the time of termination. Otherwise, this process becomes ripe for abuse.
[93] That leads me to make this point, which is, while I have some fairly strong views on the Plaintiff’s behaviour (and misgivings about his credibility) – meaning, if the Defendant actually terminated him for cause, I would have likely been a sympathetic ear – in light of the wiping clean of a significant portion of the Plaintiff’s disciplinary record; the inescapable conclusion that the June 2016 event, on its own, would not have warranted a dismissal for cause; and the decision to not terminate the Plaintiff after committing what I find to be the two most egregious acts of subordination (i.e. not attending work when leave was specifically denied, and harassing a co-worker) which, while there were warnings was bereft of any real consequences and could be construed as acquiescence, I have little choice but to find that the Plaintiff is entitled to more than just the minimum two-week’s notice set out in the ESA.
[94] With that, I am left to consider how much notice was required, and what, if anything, should be deducted from that (for mitigation claw back). I will return to mitigation in a moment.
[95] I will first resolve the issue of reasonable notice. That is, how much notice was the Plaintiff entitled to? Again, the Plaintiff suggests that he was entitled to 2.5 months. The Defendant takes the view that he was entitled to anywhere from 1 to 1.5 months. In some cases, depending on the job and length of service, this can be a fairly straightforward exercise. In this case, however, it is not so clear. Each party has referred to jurisprudence which supports their respective positions.
[96] In the end result, I find in favour of the Plaintiff. While there needs to be a principled approach to this exercise, it is, in some respects, more art than science. In this case, based on the Plaintiff’s age, length of employment, and nature of his duties, reasonable notice would typically be anywhere from 2 to 3 months; the range (before deducting the two weeks already paid) being anywhere from $4,356.00 to, as suggested by Plaintiff counsel, $7,260.00. While I am convinced the Plaintiff’s drug addiction played no role in his dismissal, in the circumstances of this case, in particular the curious decision to not progressively increase the severity of disciplinary actions, but also given his age and nature of duties, I accept and adopt the Plaintiff’s position which, after deducting the two weeks already paid, amounts to an award of $5,808.00.
Mitigation
[97] Lastly, is a mitigation claw back in order?
[98] On this issue, Plaintiff counsel made these submissions:
My notes on this section of my client’s cross examination are not great. I recall my friend bringing out that my client mitigated about 3 weeks or so after dismissal. What I do not see in my notes is any indication as to what rate of pay or whether the mitigation was full time or part time etc. If the evidence is before the court (transcript or Your Honour’s notes), then there should be a deduction from the Bardal award for same. If the evidence is not before the court, then it is my view that the onus was on the defence to lead that evidence, i.e. the onus is on the defence to prove offset to damages in any case.
[99] For his part, Defendant counsel says this:
[T]he Plaintiff’s enrollment in school was a deliberate election on his part (which election the Plaintiff should be held to), not to mitigate his damages and to waive his entitlement to later claim any such common law damages during this time, especially given that the Plaintiff didn’t even complete his studies. Needless to say, the approximate period of two months between June 9, 2015 and August 2016 (when the Plaintiff started working for Keller), was in any event partly covered by the Plaintiff’s two weeks’ notice of termination, paid to him under the ESA and balance by his incomplete and failed attempt to return to school.
[100] A Plaintiff, in every case, has a duty to mitigate against losses suffered. In an employment context, what this means is the terminated employee must make reasonable efforts to find a new job. The policy reason underlying this principle is simple, and that is, reasonable notice (or payment in lieu of notice) is not to reward someone for past service, or to punish an employer, but to bridge the gap between jobs. The Defendant bears the onus of establishing that the Plaintiff failed to take reasonable steps to mitigate his damages by finding alternative employment. Has it done so?
[101] While Defendant counsel’s argument was well made, and while his position may in fact be correct, there is a dearth of evidence about the availability of similar employment opportunities having regard to the experience, training and qualifications of the Plaintiff. Put another way is to say that the record is deficient. Which means, the Defendant has not met its onus.
[102] Moreover, it is well settled that attending school after dismissal can be an acceptable mitigation approach. In this case, I accept that the Plaintiff attempted this in good faith, notwithstanding his failure to ultimately complete the course of study. On the mitigation issue, I find in favour of the Plaintiff.
Punitive Damages
[103] I am not going to dwell on the issue of punitive damages. My discussion and conclusion on the Human Rights issue, at least I hope, has made it abundantly clear that punitive damages are not available and will not be awarded.
Conclusion
[104] In summary, I conclude that a reasonable notice period is two and a half months. As such, judgment is granted in favour of the Plaintiff in the amount of $5,808.00, which is $7,260.00 less the payment of two weeks salary.
[105] Should the parties fail to resolve the issue of costs; I invite brief written submissions. These are not to exceed 3 pages, excluding a costs outline, authorities relied upon, and rule compliant Offers to Settle which either say is as good as or better than the result. Unless counsel agree on a different timetable, each is to file their argument within 30 days of this decision.
[106] In their respective submissions counsel may, if they wish, address the issue of pre-judgment interest. Otherwise, my judgment will reflect that it is payable at the published rate which, and I stand to be corrected, is 0.8% as the claim was issued in the fourth quarter of 2016.
In any case, as indicated, counsel may address this further if I am wrong; they seek the imposition of a different rate; or otherwise see a need to do so.
Justice J.C. George
Released: December 6, 2021
COURT FILE NO.: 2814/16
DATE: 2021/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Lenting
Plaintiff
-and-
Huron Tire & Auto Inc., operating as Haugh Tire
Defendant
REASONS FOR JUDGMENT
George J.
Released: December 6, 2021