Court File and Parties

COURT FILE NO.: 2017/16 DATE: 2022-03-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARY ANN PEPPER, Plaintiff – and – JEFF LAMB, Defendant

Counsel: Stephanie Shreve, for the Plaintiff Jonathan Pitblado, for the Defendant

HEARD: January 17, 18, 19, 2022

K.A. GORMAN

[1] In this Rule 76 Simplified Procedure trial, the plaintiff claims damages in the amount of $100,000 for wrongful dismissal, in particular:

i. General damages for termination by the Defendant of the Plaintiff’s employment without notice or pay in lieu of notice; ii. Damages for breach of the implied covenants of good faith and fair dealing in the employment contract; iii. Monetary damages pursuant to s. 50(1) of the Occupational Health and Safety Act; iv. Monetary damages pursuant to s. 46(1) of the Human Rights Code R.S.O. 1999; and v. Aggravated, and punitive or exemplary damages.

The Parties

[2] When the plaintiff’s employment terminated in 2016, she was the 52-year-old sole employee of Jeff Lamb Promotional Products (JLPP), located in London, Ontario. She had met the defendant in or around 1997-8 and the two became romantic partners. Their relationship ended, but she remained with the company, performing various administrative duties.

[3] The defendant has operated JLPP since 1999. The plaintiff has been employed by him since that time. The business provides promotional products to various organizations, and operates out of Mr. Lamb’s home. Mr. Lamb was largely a “hands-off” employer, with Ms. Pepper running the business.

[4] Ms. Pepper has long suffered from mental illness, including depression and generalized anxiety.

Changes to the Employment Contract

[5] Ms. Pepper typically worked approximately 34 hours per week. She was paid $16.50 per hour.

[6] Over the years, business typically slowed in the spring and summer months. Mr. Lamb would “lay-off” Ms. Pepper and she would collect employment insurance. She would be rehired when business picked up.

[7] On January 21, 2016 Mr. Lamb advised Ms. Pepper that her hours were to be reduced to 20 hours per week. Mr. Lamb testified that the hours were being reduced to “up to” 20 hours per week. He increased Ms. Pepper’s salary to $20.00 per hour.

[8] Ms. Pepper asserts that she was permitted to work from home from time to time, but the new arrangement called for her to be in the office 100% of the time.

[9] Mr. Lamb testified that he created the new arrangement owing to the fact that his business had lost money. He testified that he had concerns that Ms. Pepper was over-paying herself and that there may have been other financial improprieties. Mandating that she work at the office would allow him to monitor her work.

[10] Ms. Pepper testified that she was not happy with the arrangement but agreed to abide by it.

Oxford Learning Centres

[11] Oxford Learning Centres (“OLC”) was JLPP’s biggest client. Their annual franchisee meeting was scheduled for April 28, 2016. In preparation for the meeting the plaintiff would order various products. At the franchisee meeting she would set up a table or booth and the defendant would meet with the customers.

Events of February 24, 2016

[12] The plaintiff and defendant agree that on February 24, 2016, while on a break, the plaintiff was playing a song on her iPad.

[13] The plaintiff’s evidence was that Mr. Lamb came upstairs and yelled at her to turn the music off. She testified that he said, “no wonder your life is so fucked up listening to music like that”. She stated that he continued to yell at her, saying, “you need to shut your mouth”.

[14] Mr. Lamb testified that he did not yell or raise his voice to the plaintiff but simply asked her to turn off the music, which he felt was depressing.

[15] Ms. Pepper testified that she was shaken. She put on her coat and left as she was “frightened”. She testified that she had a “melt down” when she got home.

[16] Ms. Pepper testified that she had only seen Mr. Lamb that angry on one occasion, approximately 10 years before. She stated that they had had a disagreement and that she threw a basket at him. She said that he grabbed her by the throat and held her against a wall. She stated that that is all she remembers about the prior incident.

[17] In his testimony, Mr. Lamb testified about that incident. He told the court that the police were called and that Ms. Lamb was taken to hospital and placed on a psychiatric hold for seven days.

[18] Ms. Pepper never returned to work.

The Text Messages and Emails

[19] At 2:31 p.m. on February 24, 2016, Mr. Lamb sent Ms. Pepper a text asking for the password to an email account. She did not respond.

[20] The following text/email messages occurred between February 25th to May 20th, 2016. For brevity, I will use “P” as plaintiff, and “D” as defendant. Other parties will be so identified.

Feb. 25/16 P to D: Sick today so I won’t be in.

Feb. 27/16 P to D: […] you had no right to speak to me the way you did…

Feb. 29/16 P to D: still sick

Mar. 1/16 P to D: I’m going to need at least another day.

Mar. 2/16 9:01 a.m. P to D: Going to be Monday

10:59 a.m. P to D: If I am to come back I need you to agree to a couple of things:

1. You will never speak to me the way you did a week ago.
2. I will be able to do paperwork from home and get paid for it.
3. Get the new accounting software that allows me to use the accounting software from home. I know this will limit my time in the office but it is what I require to get well. Please advise if you agree to the above terms.

Mar. 4/16 P to D: FYI, if I don’t hear from you by Sunday evening, I will take that as you are not interested in the terms and you are not interested in me returning.

Mar. 6/16 D to P: Show up at eleven and we will talk.

[21] On March 7th, 2016, the plaintiff attended the office.

Mar. 7/16 P to Terri-Lynn Kirby (of OLC): Jeff just let me go.

Mar. 17/16 D to customer, Lynn Dumoulin: Hi Lynn Mary is off for extended leave [……]

[22] Between March 10th and May 20th, the plaintiff texted the defendant asking about her last paycheque, when she would receive her Record of Employment (“ROE”) and termination pay.

[23] A ROE was issued with the reason for “termination” noted as “shortage of work”.

Analysis and Law

[24] The court must determine whether:

a. The plaintiff was dismissed, constructively or otherwise, or resigned; b. The defendant’s conduct attracts aggravated and/or punitive damages, and if so, the quantum; and c. The plaintiff experienced discrimination connected to her mental health disability, and if so, the quantum of damages.

A. Did the Plaintiff Resign?

[25] A contract of employment for indefinite term may be terminated in one of three ways. First, by either party giving reasonable notice of intention to terminate the contract. Where the contract is ended by reasonable notice there is no breach of contract. Second, the parties may negotiate an amendment to the contract permitting termination on less than reasonable notice, or indeed, no notice at all. Again, there is no breach of contract. Third, the contract may be repudiated by one or the other party. A contract is repudiated when the repudiating party’s words or actions evidence an intention to no longer be bound by the contract. Repudiation is a breach of the contract, and the aggrieved party is entitled to sue for damages: Conway v. Griff Building Supplies Ltd. (2020), 2020 BCSC 1899 (B.C.S.C.).

[26] As Hill, J. stated in Gebreselassie v. VCR Active Media Ltd. at paras 41-44:

Both an employer and an employee enjoy mutual rights to terminate an employment contract at any time provided, as in this case, there are not express provisions to the contrary: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (S.C.C.) at para. 75. In the context of an indeterminate employment contract, one party can resiliate the contract unilaterally — the resiliation is considered a dismissal if it originates with the employer and a resignation if it originates with the employee: Farber c. Royal Trust Co. (1996), [1997] 1 S.C.R. 846 (S.C.C.) at para. 23.

Where an employee severs the employment relationship by way of voluntary resignation rather than dismissal, the employee has no remedy by way of a wrongful dismissal action. In an action for wrongful dismissal, the plaintiff then bears the burden of establishing the threshold fact of dismissal as opposed to resignation. The employer has the onus to show a resignation, such as it may appear to exist, was voluntary in the legal sense: D. Harris, Wrongful Dismissal, looseleaf service at § 3.1, para. 1.

A valid and enforceable resignation must be clear and unequivocal — to be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention: Kieran v. Ingram Micro Inc., [2004] O.J. No. 3118 (Ont. C.A.) at para. 27; Danroth v. Farrow Holdings Ltd., [2005] B.C.J. No. 2674 (B.C. C.A.) at para. 8; Rousell v. Prairie Implement Manufacturers Assn. (1992), 44 C.C.E.L. 243 (Sask. Q.B.) at 247-9. Whether words or action equate to resignation must be viewed contextually — the totality of the surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood the employee resigned: Kieran, at para. 30; Dragone v. Riva Plumbing Ltd., [2007] O.J. No. 3710 (Ont. S.C.J.) at para. 3; Maguire v. Sutton, [1998] B.C.J. No. 138 (B.C. S.C.) at para. 47.

[27] Whether a resignation is clear and unequivocal requires a fact-driven assessment of all relevant evidence.

B. Was the Plaintiff Constructively Dismissed?

[28] As the court stated in Gebreselassie (supra) at paras. 58—60:

58 An employee who is the subject of a constructive dismissal cannot be said to have voluntarily resigned or terminated his or her employment.

59 An employer can make changes to an employee's position that are allowed by the contract as part of the employer's managerial authority: Farber, at para. 25. For a finding of constructive dismissal, there must be some unilateral behaviour on the part of the employer amounting to a fundamental alteration in an essential term of the employment contract: Smith v. Viking Helicopter Ltd. (1989), 68 O.R. (2d) 228 (Ont. C.A.) at para. 3, 8; Farber, at para. 24; Sproat, J.R., Wrongful Dismissal Handbook (Toronto: Carswell, 2004), 5-1 to 5-6.3.

60 Whether an employee has been constructively dismissed is essentially a question of fact — the employee's perception of the employer's conduct is not determinative as the court must ask itself whether a reasonable person in the circumstances of the employee would have concluded that an essential term of the employment contract had been substantially changed by the employer (Dick v. Canadian Pacific Ltd., 2000 NBCA 10, [2000] N.B.J. No. 373 (N.B. C.A.) at para. 35, 38) or that the employer's treatment of its employee made his or her continued employment intolerable: Shah v. Xerox Canada Ltd., [2000] O.J. No. 849 (Ont. C.A.) at para. 3-10. A fundamental breach of the contract that results in termination entitles the employee to consider himself or herself constructively dismissed by the employer: Farber, at para. 33. Duties, salary and working conditions are all relevant factors in a constructive dismissal analysis: Bowen v. Ritchie Bros. Auctioneers Ltd., [1999] O.J. No. 4102 (Ont. C.A.) at para. 12.

[29] The plaintiff submits that she was dismissed constructively, or otherwise, and did not resign. Her position is that the defendant ought to have accommodated her, on her terms that she work from home, owing to her mental health issues. She submits that failing to do so was an act of discrimination.

[30] The submission of the defendant is that Ms. Pepper resigned, after failing to accept the accommodation offered to her on March 7, 2016.

C. Accommodation

[31] The starting point is Renaud v. Central Okanagan School District No. 23 (1992), 95 D.L.R. (4th) 577 (S.C.C.) where the Supreme Court of Canada had to consider the duty to accommodate under a collective bargaining environment. The court enunciated certain basic principles, including:

The duty to accommodate requires the employer to take reasonable measures short of undue hardship and the meaning of "undue hardship" should not be so expansive to include anything more than a de minimis interference with the employer’s operations.

[32] Considerations relevant to the determination of “undue hardship” include: financial cost, including the cost relative to the size of the operation. The test is contextual and the “balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case”: Renaud (supra) at para. 19.

[33] However, it is important to note that:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this court in Simpson-Sears Ltd. At p. 555 [S.C.C.], McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment. [1]

[34] The court in Renaud went on to state:

When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in Simpsons-Sears Ltd. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

Application of the Law to the Facts

[35] Whether a resignation is clear and unequivocal is a fact-driven analysis. This requires an assessment of all of the evidence.

[36] The evidence before the court was clear. The nature of the defendant’s business was that it required certain office equipment and dedicated material. There was a dedicated phone line and fax machine. There was a printer and photocopier. There was an area in which to store promotional products. One of the plaintiff’s tasks was to accept orders as they came in. She would “pull” items from the storage area, pack and ship them. She would invoice the purchaser and collect the funds.

[37] While there were obviously some tasks that the plaintiff could do remotely, most of the duties required that she be on site, e.g., photocopying, faxing, and pulling the promotional products for shipment.

[38] At the meeting of March 7, 2016, the defendant proposed that the plaintiff work at the office during the week, when the defendant was otherwise at the gym. The plaintiff refused, claiming that she feared the defendant. She packed up her desk and left the meeting.

[39] Ms. Pepper had worked for Mr. Lamb since 1999. He was a hands-off employer and she essentially performed all of the required duties of the business. She did not have other employment immediately available. Common sense would suggest that one is unlikely to voluntarily quit their employment. That said, the Defendant’s position is to be preferred.

[40] The plaintiff is simply not a reliable historian.

[41] In relation to an incident between she and Mr. Lamb some years earlier, Ms. Pepper attests at paragraph 35 of her affidavit (sworn, November 10, 2021):

We had a disagreement and I remember tossing a basket at him to keep him from getting to me as I tried to get out the door […] That’s all I remember. I can’t remember what happened after that.

[42] In response, Mr. Lamb’s affidavit stated:

I deny paragraph 34 (sic) of Ms. Pepper’s affidavit. Many years ago, I had called the police after Ms. Pepper attacked me. The police came and she was taken away.

In cross-examination, he agreed with Ms. Shreve, that the police took Ms. Pepper to the hospital where she remained on a one-week psychiatric hold.

[43] It seems peculiar that Ms. Pepper would attest that she had no memory of the incident. She clearly told Dr. Zilli about it. Dr. Zilli’s clinical note of February 11, 2016 indicates that Ms. Pepper reported a prior incident, wherein Mr. Lamb called the police and she was taken to hospital.

[44] In cross-examination, Ms. Pepper was asked about an April 11, 2016 entry in Dr. Zilli’s clinical note, wherein she noted:

Back bothering her – lifted a dog 67 lbs. Seeing a chiropractor.

Ms. Pepper acknowledge this happened, “but not in 2016”. The following exchange took place between Mr. Pitblado and Ms. Pepper during the trial:

Q: Okay. So you think that injury happened when? A: Eighties, nineties.

[45] In cross-examination Ms. Pepper testified that she told Mr. Lamb in 2015 or 2016 that she saw a psychiatrist. Mr. Pitblado confronted her with her discovery testimony wherein the following exchange occurred:

Q103: And when is that that you told him and what did you tell him? A104: I don’t recall when I told him and I don’t recall what I told him.

Ms. Pepper told Mr. Pitblado that her memory is better now than it was at her 2018 discovery.

Conclusion

[46] On the whole of the evidence, I am unable to accept the plaintiff’s account. The totality of credible evidence supports resignation by the plaintiff.

[47] I do not have to determine exactly what happened on February 24, 2016.

[48] Ms. Pepper left the business premises on February 24, 2016 and sent various text messages to the defendant, culminating in the “demand” text of March 2, 2016. [2]

[49] I accept that Mr. Lamb offered Ms. Pepper the ability to work in the office 5 days per week, for three hours each morning while he was at the gym. I do not accept Ms. Pepper’s version that she was offered 2 days per week on the same terms. As previously indicated, I did not find Ms. Pepper to be a reliable historian.

[50] In Renaud (supra) the court made it clear that an employer’s duty is fulfilled by offering a reasonable accommodation and that the employee has the obligation to accept it.

[51] I cannot accept Ms. Pepper’s evidence that she did not accept the accommodation because she was “fearful” of the Defendant. That explanation is non-sensical. The proposal was such that the defendant would not be present when Ms. Pepper worked. She wanted to work entirely from home and that was unacceptable to the defendant. Indeed, it is unclear how working (entirely) from home could be accommodated. Product was stored at, and shipped from the business location. There was dedicated office equipment and supplies located there.

[52] The accommodation offered by the defendant was entirely reasonable. When Ms. Pepper refused it, the defendant’s obligation was met.

[53] It is curious that the ROE states that the reason for termination was “shortage of work”. Unfortunately, Mr. Lamb was never cross-examined on this point. Accordingly, it does not factor into my decision.

[54] In the result, the action is dismissed.

[55] If the parties are unable to agree on the issue of costs, brief written submissions should be exchanged and filed with the court within 60 days.

Justice K.A. Gorman Released: March 1, 2022

Footnotes

[1] Renaud (supra) at para. 50 [2] I am not prepared to rely upon texts to third parties. Just because a text is written, e.g., “Jeff just let me go”, does not make the assertion true.