Court File and Parties
COURT FILE NO.: CV-20-687-0000 DATE: 2022-03-16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Joseph Miller, Plaintiff – and – Ontario Potato Distribution Inc., Defendant
COUNSEL: Robert A. Konduros, for the Plaintiff Michelle Cook, for the Defendant
HEARD: February 1, 2 and 3, 2022
BEFORE: D.A. Broad, J.
Background
1The defendant is primarily engaged in the business of farming, packing, storing and distributing potatoes and operated a warehouse facility in the City of Cambridge, Ontario.
2The plaintiff was employed by the defendant from September 12, 2008, to April 29, 2020 (approximately 11.5 years). At the time that his employment ended the plaintiff was 45 years of age and earned $18.50 per hour employed as a “lumper” (a manual labour position). He had previously held the position of weekend supervisor for a period before being returned to the position of lumper.
3The plaintiff says that he was constructively or wrongfully dismissed. The defendant says that he voluntarily resigned his employment in the middle of a shift and executed a written confirmation of his resignation.
4By Statement of Claim issued under the Simplified Procedure provided in rule 76 of the Rules of Civil Procedure on May 21, 2020, the plaintiff brought an action against the defendant for damages in the sum of $200,000 for:
(a) constructive and/or wrongful dismissal; (b) aggravated, punitive and/or exemplary damages; and (c) monetary compensation and/or restitution for the injury to his dignity, feelings and self-respect arising out of the infringement by the defendant of his right to be free from discrimination based on disability pursuant to s. 46.1 of the Ontario Human Rights Code.
5The plaintiff did not pursue the claims for aggravated, punitive and exemplary damages nor for compensation pursuant to s. 46.1 of the Ontario Human Rights Code.
6In the alternative to its pleading that the plaintiff voluntarily resigned his employment, the defendant pleaded in its Statement of Defence that it had just cause to terminate his employment, and in the further alternative, that the plaintiff voluntarily abandoned his employment.
7The trial proceeded as a summary trial pursuant to subrule 76.12.
The Plaintiff’s position and evidence respecting the events leading to his resignation
8There is no dispute that the plaintiff verbally resigned his employment in the middle of a shift on April 29 2020 and that he executed a written confirmation of his resignation at that time. The plaintiff takes the position that he resigned his employment following upon a threatening incident which he experienced that led him to feel unsafe in the workplace, and that he executed the written confirmation of his resignation under duress. He says that the incident was evidence of a hostile work environment giving rise to constructive dismissal of his employment by the defendant. The plaintiff did not plead, nor did he allege in his evidence at trial, that there were any other factors, circumstances or conduct by the defendant or its representatives that created a hostile work environment which would support a finding of constructive dismissal.
9The plaintiff claims damages equal to pay in lieu of 12 months’ notice in the sum of $38,480 based upon his regular hourly wage of $18.50 per hour at 40 hours per week. In the alternative he claims the sum of $37,651, representing his average earnings from his employment in the years 2015, 2016, 2017 and 2018. He did not include 2019 in the calculation as his income in that year was artificially low in that year as a result of absences due to illness.
10The alleged incident which the plaintiff says created a hostile work environment consisted of the following.
a) At 3 AM on April 29 2020 the plaintiff’s supervisor Patrick Wheatley approached him while he was working and told him that someone was outside who wanted to “address [his] concerns.” Mr. Wheatley advised that he did not know who the person was. Mr. Wheatley walked him out of the building and pointed to the back of the parking lot where there was a vehicle with its headlights on. Mr. Wheatley advised the plaintiff that he would not be accompanying him to where the vehicle was. b) The plaintiff approached the vehicle and saw a “very tall man in a trench coat” standing outside the vehicle putting on leather gloves. The plaintiff deposed that the individual said “I saw the texts you sent to Kim [interpreted by the plaintiff to be a reference to Kim Hynes, the day shift supervisor of the defendant]. It stops now and when your program is over so are your benefits.” c) The plaintiff deposed that he responded “Okay. What else? Who are you?” The man pointed his fingers in his face “like a gun” and said, “we never had this f-ing conversation.” d) The plaintiff felt scared and went back into the building where he asked Mr. Wheatley again who it was that he had sent him to see in the parking lot. Mr. Wheatley responded that he did not know. The plaintiff told Mr. Wheatley that the person had threatened him and that he did not feel safe working at the facility anymore. He deposed that Mr. Wheatley responded by telling him to turn in his swipe card and to sign a document. He says that he did so under “stress and duress.”
11The plaintiff deposed that almost two weeks earlier, on April 16, 2020, he learned that his benefits had been cut off by the defendant. He was upset and initiated an exchange of text messages with Kim Hynes. There was a discrepancy between the typewritten version of the text message exchange produced by the plaintiff and the screenshots of the actual texts produced by Ms. Hynes. In the plaintiff’s version, a text attributed to Ms. Hynes was actually from the plaintiff and one text of the plaintiff was omitted.
12In the text exchange the plaintiff confronted Ms. Hynes about his benefits being discontinued, initiating the exchange by asking “what’s going on with the benefits?” and then threatening her by stating “if I have to call up the head office then everything is going to come out and I mean everything I know that you’ve been ducking (sic) with me I have the proof and will use it.”
13The plaintiff complained of being forced to go on methadone and then his benefits were taken “after being forced to go on a program that requires narcotic pharmaceuticals.” He went on to state “now you now (sic) and I’m pissed. This is not going to end well. I have lots of texts from everyone and legal action will be coming.”
14Ms. Hynes responded, “I do not know what (sic) going on with your benefits I do not work in the office.” The plaintiff texted “yes but you have been messing with me and it is too (sic) the point of harassment.” Ms. Hynes responded, “if you have a problem call the office and ask for Johnny.”
15The plaintiff deposed that, while he was on a methadone program, the defendant moved his benefit plan from class A to class C without his knowledge, which resulted in him having to pay personally for his medication.
16On April 21 2020 the plaintiff received an email from Stephanie Fry, the Human Resources Manager for the defendant, advising him that the company would be reinstating him back to class A benefits, which will allow him to submit any drug claims to the benefits carrier for reimbursement. By letter dated April 27 2020 Ms. Fry confirmed that to the plaintiff that his group benefits coverage had been reverted to class A benefits effective April 9, 2020. Ms. Fry explained that, as the plaintiff was currently a lumper, class A benefits are not provided, however he would have access to class A benefits until he completed his methadone program.
17The plaintiff deposed that, at 12.04 p.m. on April 29, 2020, the plaintiff texted Ms. Fry asking for a “buyout package” and explaining what had happened during the parking lot incident earlier that morning.
18The plaintiff deposed that he called the Waterloo Region Police Service on April 30 2020 to report the parking lot incident.
The Defendant’s position and evidence respecting the events leading to the plaintiff’s resignation
19Patrick Wheatley deposed that the plaintiff started his shift on April 28 2020 at 11:30 PM and was scheduled to work until 7:30 AM on April 29. It was the plaintiff’s first shift back after a 14-day period of self-isolation due to his having experienced COVID symptoms.
20From 1:30 AM to 2 AM there was a company-wide break. Around 3 AM Mr. Wheatley sent the plaintiff for a customary smoke break as he was a smoker. He did not provide the plaintiff with any directions beyond telling him that he could have a smoke break if he wanted. The plaintiff did not ask Mr. Wheatley to come outside with him and it would have been unusual for him to do so. Mr. Wheatley deposed that he continued doing his paperwork inside.
21Mr. Wheatley deposed that around 3:15 AM the plaintiff approached him and said that he “could not do it anymore” but did not offer an explanation, nor did Mr. Wheatley ask him for one. The plaintiff then asked for a resignation form.
22Mr. Wheatley deposed that the plaintiff did not say anything about an unknown individual or threat at that time. Mr. Wheatley went over to the grocery area, grabbed a resignation form, and came back to where the plaintiff was waiting. Mr. Wheatley went over the resignation form with the plaintiff before he signed it. He stated that, as a former weekend supervisor, the plaintiff would have been familiar with the company’s forms including a blank resignation form and he did not seem confused about what he presented the plaintiff with, nor did he seem to be in duress. Mr. Wheatley witnessed the plaintiff fill out and sign the resignation form. Mr. Wheatley signed it above the line labelled “supervisor signature.”
23After signing the resignation form the plaintiff placed his security card on top of the paperwork. Mr. Wheatley walked him to the exit and the plaintiff left without saying anything else.
Discussion re claim of hostile work environment and constructive dismissal
24Counsel for the plaintiff agreed in submissions that plaintiff bears the onus of proving on a balance of probabilities that the parking lot incident, upon which he relies to support his claim of a hostile work environment, occurred and that the defendant was involved in it or directed it.
25For the reasons that follow I find that the plaintiff has failed to discharge his onus of proving that the parking lot incident occurred and that the defendant had any role in it.
26As indicated above, the plaintiff’s evidence was that Patrick Wheatley approached him while he was working and summoned him to go to the back parking lot to meet with an undisclosed individual to “address [his] concerns” and that he returned to report the incident to Mr. Wheatley and that he did not feel safe. Mr. Wheatley was unequivocal that this did not occur. He stated that, as was his custom, he suggested that the plaintiff could take a smoke break and said nothing about the plaintiff meeting another person. It is noted that the plaintiff did not challenge Mr. Wheatley’s evidence by any reply affidavit or in cross-examination that it was his ordinary practice to send the plaintiff for smoke breaks. Mr. Wheatley denied that the plaintiff reported anything about an unknown individual upon return from his break.
27In the oft-cited case of Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C.C.A.) O’Halloran, J.A. made the following instructive observations at paras. 10 and 11 respecting the task of a trial judge in resolving credibility issues in the face of directly conflicting evidence:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to be telling the truth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.
28In my view the plaintiff’s story of being directed by his supervisor to the back parking lot at 3 AM and being threatened by an unknown man wearing a trench coat and gloves concerning texts that he sent to Kim Hynes two weeks previously complaining of having his benefits cut off is not in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
29The evidence indicated that, when the plaintiff learned that access to his benefits had been withdrawn, he contacted Kim Hynes by text and made certain threats towards her. She explained that she had nothing to do with his benefits and that he should contact the office to address the issue. On April 21 2020 the Human Resources Manager Ms. Fry emailed the plaintiff to advise that his class A benefits were being restored, and she confirmed this in her letter to him of April 27, 2020. It is evident that the defendant addressed the plaintiff’s concern respecting his benefits and its impact on his ability to pay for his methadone treatment in a way that was satisfactory to him. He did not respond to Ms. Fry’s letter expressing any dissatisfaction with the way in which his concern had been handled.
30On cross-examination the plaintiff acknowledged that he had testified on his examination for discovery that had he had “no dispute on dropping down in my benefits…after my methadone treatment was completed” as Ms. Fry had advised in her letter. The issue respecting the plaintiff’s access to the benefit package for reimbursement of the cost of his methadone treatment was fully resolved by April 27, 2020. It is not in harmony with the preponderance of probabilities that in these circumstances the defendant would arrange for an unidentified person in a trench coat and gloves to threaten the plaintiff at 3 AM in the parking lot two days later and tell him that his benefits would end when his treatment program concluded. The plaintiff had already been informed of this by Ms. Fry and he agreed.
31Kim Hynes deposed in her affidavit that she had no knowledge of an alleged unknown man and had never asked anyone to threaten the plaintiff. Ms. Hynes evidence on this point was not cross examined upon and there is no evidence that she disclosed her April 16 2020 text exchange with the plaintiff to any other person, and in particular, to any person within the company. In her affidavit Ms. Hynes deposed that, although she viewed the plaintiff’s text messages as threats, she “decided to just let the text messages go” as she knew that the plaintiff was “prone to getting worked up and causing drama” and she did not want to escalate the conflict. She was not cross examined on this aspect of her evidence.
32I am unable to accept Mr. Konduros’ submission that the plaintiff’s evidence should be preferred over that of Mr. Wheatley based on an inconsistency between Mr. Wheatley’s evidence that the plaintiff customarily wanted to leave the workplace early and evidence that the plaintiff requested to return to work early from his COVID quarantine. I fail to see any inconsistency between these aspects of the evidence. Moreover Mr. Wheatley was not cross-examined on the alleged inconsistency and was not afforded an opportunity to respond to it. Mr. Konduros acknowledged that there were no other flaws in Mr. Wheatley’s evidence at trial.
33Having found that the plaintiff has failed to discharge his onus of proving that the parking lot incident occurred and that the defendant had any role in it, and there having been no other evidence led to support the existence of a hostile work environment, there is no basis for a finding that the plaintiff was constructively dismissed.
Effect of the plaintiff’s resignation
34Mr. Konduros submitted that the plaintiff’s resignation was not effective, making reference to the case of Gebreselassie v. VCR Active Media Ltd., [2007] O.J. No. 4165 (S.C.J.), a decision of Hill, J.
35At paras. 43 and 44 Hill, J. summarized the principles to be considered in determining whether a resignation of an employee is valid and enforceable, as follows:
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.
Whether a resignation is clear and unequivocal requires a fact-driven assessment of all relevant evidence.
36At para. 49 Hill, J. accepted that a resignation during a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness, and that in some cases an employee’s conduct is sufficiently equivocal that it cannot be objectively construed as a voluntary resignation.
37At para. 50 Hill, J. noted that “an employee may resile from a resignation provided the employer has not relied upon it to its detriment.”
38Having found that there is no proof in the case at bar that the parking lot incident occurred, it must follow that the plaintiff’s resignation was not part of a spontaneous outburst in highly charged emotional circumstances, which would undermine its essential voluntariness. I accept Mr. Wheatley’s evidence that the plaintiff did not seem to be in duress. I find that the plaintiff’s conduct was not equivocal, such that his resignation cannot be objectively construed as voluntary.
39Moreover, the plaintiff’s subsequent conduct is consistent with his belief that he had effectively resigned. Nine hours after his resignation he emailed Ms. Fry asking for a “buy-out,” implying that he knew his employment had ended. At no point did he seek to resile from or withdraw his resignation.
40The enforceability of the specific terms of the written confirmation of resignation from is, in my view, not in issue as, prior to executing the document, the plaintiff verbally communicated to Mr. Wheatley that he was resigning his employment. The defendant does not rely upon the specific terms of the confirmation form but rather relies on it as confirmation of the plaintiff’s intention to resign.
41It is noted that the plaintiff did not plead in the Statement of Claim that his resignation was ineffective or that he ever sought to resile from or withdraw it. He simply pled that he signed the confirmation of resignation document under duress.
42I find that the plaintiff voluntarily resigned his employment on April 29 2020 and therefore the action must be dismissed.
43In light of this finding it is not necessary to consider the defendant’s alternate pleading that it had cause to terminate the plaintiff’s employment and that he voluntarily abandoned his employment.
Damages
44It would be useful to address the issue of damages, if I am wrong in finding that the action should be dismissed on the grounds set forth above.
Notice Period
45In the case of Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619 at para 54 the Court of Appeal confirmed that, at its foundation, reasonable notice is the period of time it should reasonably take the terminated employee to find comparable employment.
46It is well-established that in determining the length of notice, the court should consider, among other possible factors, the Bardal factors (derived from Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.J.)) namely,
the character of employment; the length of service; the age of the employee; and the availability of similar employment having regard to the experience, training, and qualifications of the employee.
(see Paquette v. TeraGo Networks Inc., 2015 ONSC 4189 (S.C.J.) rev’d on other grounds 2016 ONCA 618, and the cases therein referred to)
47In Paquette Perell, J. observed at para. 28 that the approach to determining a reasonable notice period is flexible, and each case will turn on its own particular facts, with the weight to be given each factor to vary according to the circumstances of each case. The judge in a wrongful dismissal case is required to exercise judgment in determining what factors are of particular importance and in determining the reasonable notice period, the court should not apply as a starting point any rule of thumb based upon weeks or months of notice per year of service as such an approach unduly emphasizes length of service above all relevant factors. Each case must be considered having regard to its particular facts.
48As indicated above, the plaintiff sought damages based upon a notice period of 12 months, equivalent to effectively one month per year of service. The plaintiff did not cite any relevant authorities to support this position.
49The defendant submits that 6 months would represent an appropriate period of notice, citing Rashid v. Canada Auto Park Queenspark Ltd., 2011 CarswellOnt 4738 (S.C.J.) in which this length of notice was found to be appropriate in the case of a 44-year-old parking lot attendant with 12 years of service.
50In my view Rashid is of limited assistance as it is a relatively dated decision. Godfrey J. did not carry out a detailed analysis to support the determination of the appropriate notice periods for either of the defendants in that case, and no case law was referred to.
51In my view, I can take judicial notice in the case at bar that the plaintiff’s ability to find equivalent alternate employment was adversely affected by the COVID-19 pandemic.
52In the circumstances, I find ten (10) months to be an appropriate notice period, considering the Bardal factors including, in particular, the availability of similar employment having regard to the plaintiff’s experience, training, and qualifications.
53The evidence indicated that the plaintiff was frequently offered the opportunity to leave work shifts early, which he accepted, and accordingly he did not work full 40-hour weeks in any of the relevant years. I accept the plaintiff’s alternate position that the assessment of damages should be based upon $37,651 in annual income, representing his average annual earnings from his employment with the defendant in the years 2015, 2016, 2017 and 2018. No claim was advanced by the plaintiff for the loss of the value of benefits. Prior to consideration of the issue of mitigation or deductions, pay in lieu of reasonable notice is equal to $31,375.83.
Mitigation
54The plaintiff obtained alternate factory employment in November 2021, outside the reasonable notice period.
55The defendant alleged that the plaintiff failed to take reasonable steps to mitigate his damages by seeking to find alternate employment during the notice period.
56On cross-examination the plaintiff testified that he applied online to numerous employers. However, he did not send covering letters to prospective employers as he thought that if they wanted to get to know him they would invite him for an interview.
57The defendant pointed to an email to the plaintiff from a prospective employer, Aerotek, on January 20 2021 stating that based upon his resume he “could be a fit for some great opportunities we presently have available.” The plaintiff had a telephone interview with Aerotek but told the interviewer that he wanted to wait a week as he was awaiting a response from an earlier application to Toyota. The defendant submits that the plaintiff acted unreasonably in not pursuing the Aerotek opportunity.
58I am unable to accept the defendant’s position that the plaintiff acted unreasonably in his response to Aerotek. Moreover, it is speculative to suggest that the plaintiff would have been offered employment by Aerotek had he not made the comment.
59I am not satisfied that the defendant has satisfied the onus on it of showing that the plaintiff acted unreasonably in failing to seek to find alternate employment during the notice period in order to mitigate his damages.
Canadian Emergency Response Benefit (CERB) Offset
60The evidence indicated that following the end of his employment with the defendant the plaintiff drew payments under the Canadian Emergency Response Benefit (CERB). However, he did not provide an accounting of how long he drew CERB or how much money he received from that source.
61The defendant submits that the CERB payments received by the plaintiff during the notice period should be deducted from the damage award, citing the case of Hogan v. 1187938 B.C. Ltd., 2021 BCSC 1021 (B.C.S.C.). The plaintiff counters that wrongful dismissal damages are not subject to offset for CERB payments, citing the case of Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 99 (S.C.J.).
62It is evident that there is a divergence in the caselaw on the issue of whether CERB payments should be deducted from damage awards for wrongful dismissal.
63In the very recent case of Shalagin v. Mercer Celgar Limited Partnership, 2022 BCCA 112 (B.C.S.C.) (released on January 25, 2022) Branch, J. undertook a review of the relevant caselaw at paras. 81-84, making reference to Iriotakis and Hogan, as well as to the following cases:
Yates v Langley Motor Sport Centre Ltd., 2021 BCSC 2175 (B.C.S.C.) - CERB payments deducted; Snider v Reotech Construction Ltd., 2021 BCPC 238 (B.C.Prov.Ct.) – CERB payments not deducted; Slater v Halifax Herald Limited, 2021 NSSC 210 (N.S.S.C.) – CERB payments not deducted;
64Following his review of the jurisprudence Branch J. held in Shalagin that the CERB payments in that case should be deducted.
65It is apparent that no appellate court in Canada has addressed the issue in any reported case to date.
66Unfortunately, aside from Mr. Konduros simply citing the case of Iriotakis in submissions, and counsel jointly bringing the Hogan and Slater cases to the attention of the court by correspondence while this decision was under reserve, counsel did not address the issue of the deductibility of CERB payments in comprehensive submissions.
67In my view it would be inappropriate and unfair to determine the question of the deductibility of CERB payments from the damages without having the benefit of full submissions by counsel.
68If I am found to have erred in dismissing the action on the bases set forth above, it may be appropriate to refer the issue of the deductibility of the CERB payments received by the plaintiff back to trial for an accounting by the plaintiff of the CERB payments he received, and for full legal submissions by counsel.
Disposition
69For the reasons set forth above, the action is dismissed.
Costs
70Counsel are strongly encouraged to agree on costs. If they are unable to do so, they may deliver written submissions on costs - the defendant within 14 days of the date of release of these Reasons for Judgment and the plaintiff within 10 days of receipt of the defendant’s submissions. Such submissions shall not exceed three (3) double-spaced pages, exclusive of bills of costs or costs outlines and offers to settle. All submissions shall be delivered by email to the Trial Coordinator at Brantford at the email address utilized for releasing these Reasons for Judgment
71In the event that no costs submissions are received within the timeline set forth above, the parties will be deemed to have settled the issue of costs.
72In the event that a party does not intend to make submissions on costs, that party shall advise the court accordingly.
D.A. Broad, J.
Released: March 16, 2022
