Court File and Parties
COURT FILE NO.: CV-20-636990 MOTION HEARD: 2022-08-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Derek Edwards, Plaintiff AND: Toronto and Region Conservation Authority, Defendant
BEFORE: Associate Justice Jolley
COUNSEL: Chris Randall, counsel for the moving party plaintiff Shivani Chopra, counsel for the responding party defendant
HEARD: 29 August 2022
REASONS FOR DECISION
1The plaintiff seeks answers to one grouping of refusals (6-16 inclusive), refusal 20 and one undertaking.
2The defendant has agreed to provide a particularized Schedule B that sets out the basis for any privilege claim so that issue did not have to be argued.
3The plaintiff was employed as a member of the defendant’s senior leadership team. He had worked for the defendant for over 40 years until his termination without cause at age 62 in November 2019. At the time of his termination, he held the position of Director, Parks and Culture as well as the position of Interim Executive Director, which he assumed in March 2017 on what he was told would be a short term basis.
The Pleadings
4The plaintiff alleges in his statement of claim that he was wrongfully dismissed and that he was discriminated against on the basis of his age, contrary to the Ontario Human Rights Code.
5In support of his claim of age discrimination, the plaintiff pleads the following:
(a) Mr. Edwards is Repeatedly Asked When He is Going To Retire
Paragraph 23. Commencing in January 2018, and during virtually every second one on one meeting held between Mr. Mackenzie and Mr. Edwards, Mr. Mackenzie began repeatedly asking Mr. Edwards questions such as, "When are you going to leave?", "So when are you leaving?", and "How many more years will you stay?".
(b) Mr. Edwards is Suddenly Threatened by the Defendant With Having to Repay Five Years' Worth of his OMERS Pension, Weeks Before Christmas
Paragraph 31. The Plaintiff pleads that, through his query of OMERS about re-paying the pension, his refusal to pay Mr. Edwards the salary of $163,688.00 for the second role which he performed, followed by his persistent, repeated questions about when Mr. Edwards would leave the company, Mr. Mackenzie hoped that Mr. Edwards would resign from his employment. When Mr. Edwards' continued repeated response to remain until the end of 2022 did not change, the Defendant chose not to wait any longer and decided to terminate Mr. Edwards' employment, without cause, on account of his age, contrary to the Defendant's obligations under the Code.
Human Rights Breach
Paragraph 38. Mr. Edwards further pleads, as noted above, that the Defendant's sole focus was to terminate his employment, based on the protected ground of age under the Code, and attempt to avoid its common law obligations owed to Mr. Edwards. In that regard, the Defendant subjected Mr. Edwards to discrimination and reprisal on the basis of age, following his repeated intention to stay with the company until the end of 2022, when it did the following:
a) Beginning in January 2018, continually asked Mr. Edwards, through Mr. Mackenzie, when Mr. Edwards planned on leaving the company, despite his repeated stated intention of leaving at the end of 2022;
b) Made enquiries with OMERS in an effort to threaten Mr. Edwards with having to re-pay five (5) years of OMERS pension, in the approximate amount of $400,000.00, despite there being no such re-payment obligation on Mr. Edwards' part;
c) Refused to pay Mr. Edwards the salary for his second role, Interim Executive Director, in the amount of $163,688.00;
Paragraph 44 – in support of his claim for moral damages: (e) Discriminating against Mr. Edwards based on age when Mr. Mackenzie (a) repeatedly questioned him about when he was planning to leave the company; (b) threatened him with an alleged OMERS repayment obligation; and (c) when that did not work, terminate his employment with failure to provide him with his minimum entitlements under the Ontario Employment Standards Act, 2000, as amended.
6In response, in its statement of defence the defendant pleads:
Allegations of Age Discrimination
Paragraph 28. Contrary to the allegations in paragraphs 23 and 24 of the Statement of Claim, Mackenzie did not make inquires of the Plaintiff about his retirement plans "at virtually every second meeting" when Mackenzie and the Plaintiff met one on one.
As set out above, Mackenzie became the Chief Executive Officer of TRCA in November 2017. Mackenzie had not previously worked for TRCA.
As is customary when a senior leader assumes a role within a new organization, during his first few months of employment at TRCA, Mackenzie held a number of preliminary meetings with members of the senior leadership team including the Plaintiff in an effort to understand their portfolios, the plans for their division and personnel within those divisions, and their own individual career plans.
Furthermore, when Mackenzie started as CEO, TRCA had no succession plan or program in place. Mackenzie was concerned about this because several of the senior leadership team members including the Plaintiff had worked for TRCA for a considerable period of time and, in some cases, had continued working beyond the date when they could have retired under OMERS. For these reasons, Mackenzie made succession planning for senior positions one of his own CEO priorities. In the meantime, however, Mackenzie wanted to determine whether any of the senior leadership team members had plans to leave TRCA in the near future. Mackenzie intended to use this information to inform plans to maintain business continuity.
In addition, as set out in paragraph 9 above, one of the main reasons that the Plaintiff was re-hired in March 2014 was to administer the collaboration agreement between TRCA and Credit Valley Conservation Authority, the term of which expired in March, 2019. Accordingly, it was reasonable for Mackenzie to inquire about the Plaintiff's retirement plans, recognizing the potential for the agreement not to be renewed or extended beyond its initial term.
For the reasons set out in paragraphs 29-32, in his initial meetings with members of the senior leadership team including the Plaintiff, Mackenzie Inquired about their future plans, including retirement plans, if any. TRCA denies that such inquiries were in any way improper or constitute discrimination contrary to the Human Rights Code. TRCA pleads that these inquiries were entirely reasonable and were carried out in a professional and respectful manner. Many of these discussions helped to identify potential future leaders for the organization who were subsequently promoted into senior leadership team positions upon the retirements and departures of senior leadership team members who left TRCA after Mackenzie's arrival. Moreover, these inquiries in no way signalled that TRCA wanted the Plaintiff to cease his employment with TRCA.
In response to these initial inquiries, the Plaintiff advised Mackenzie that he planned to work until in [sic] 2022. Mackenzie accepted this response and did not pursue further discussions with the Plaintiff in this regard. However, TRCA pleads that the Plaintiff's expressed intention to work until 2022 did not result in any agreement by TRCA to continue the Plaintiff's employment until that time. Accordingly, TRCA's decision to terminate the Plaintiff's employment (referred to in paragraphs 44-47 below) was neither in bad faith nor in breach of any contractual duty of honesty.
In or about November 2019, TRCA concluded that a change in leadership was required in order to improve the effectiveness, efficiency and quality of the Parks and Culture division and to address ongoing concerns about the effectiveness and management of the Foundation. Accordingly, a decision was made to terminate the Plaintiff's employment without cause.
The Refusals
7In grouping 6-16, the plaintiff seeks information about the age of six of the nine members of the senior management team and whether the defendant terminated their employment. He argues that the defendant has pleaded that it conducted a review of the senior management team and that it made efforts to obtain information about their retirement plans. It also pleaded that, after having gathered this information, its ultimate decision was that a change in leadership was required in order to improve the effectiveness, efficiency and quality of the Parks and Culture division.
8The plaintiff does not base his argument on a plea of systemic discrimination, which he concedes is not in his pleading. He argues instead that the defendant has placed the retirement status and effectiveness of the senior management team in issue in its own statement of defence, pleading that after these discussions with the team, it determined that a change in leadership was required. In defending the claim in this way, it made relevant its treatment of the retirement-eligible members of the team. The plaintiff argues that, if the defendant terminated a number of retirement-eligible senior management and did not terminate those who were ineligible for retirement, it would tend to make it more or less likely that he too was terminated based on his age and retirement-eligibility.
9I agree. It would be unfair for the defendant to plead that it conducted a wholesale review of the management team, including their plans to leave and took that into consideration when deciding that a change in leadership was in order and then not allow the plaintiff to pursue these basic questions to test the allegations in the statement of defence.
10The defendant shall answer all the questions in this grouping. It would have had to answer Refusal 6 in any event, if only to clarify its own statement that Ms. Sharma resigned when it was asked about her termination. The defendant indicated on the record that it would answer question 397 about whether the chart was updated, so it was not refused but has yet to be answered.
Refusal 20
11The plaintiff seeks production of the recruitment file for a permanent Executive Director, including the notes in the file. I agree with the defendant that this is not relevant. Whether the defendant did not try hard enough to find a replacement or whether it rejected too many candidates and was content to have the plaintiff carry out that role with no extra compensation cannot impact the plaintiff’s claim that the Executive Director role could no longer be considered interim after he held it for three years or his position that he was entitled to be paid for the extra work. Nor can information on what the new Executive Director was ultimately paid be relevant. First, the plaintiff has known for some time what the new Executive Director was to be paid. Second, that person’s pay may be more or may be less than what the plaintiff would have been paid in that same role depending on their respective qualifications and negotiations (see Gu v Habitat for Humanity Greater Toronto Inc. 2017 ONSC 2793 at paragraphs 23-25).
12The plaintiff also argues that his double workload was caused by the employer’s delay in hiring a new executive director and ultimately impacted the defendant’s view of his performance. The plaintiff argues that he would not have been terminated had he been allowed to focus on his own Director position. An argument that the plaintiff would not have been terminated is not relevant as an employer is entitled at any time to terminate the employment of an employee without cause. Any reference to the plaintiff’s performance in the statement of defence is not to support an allegation of cause but to respond to the allegation that the plaintiff’s termination was age-related.
Undertaking 30
13The defendant undertook to advise if there were notes of an in camera board meeting. It advised that there were notes but that they were privileged, explaining that “The meeting was attended by Terra Klinck, legal counsel to the Defendant in relation to pension matters. The sole purpose of the meeting was to discuss and take advice from Ms. Klinck with respect to the issue of the pension benefits that the Plaintiff had been receiving from the Ontario Municipal Employees Retirement System ("OMERS") and the possibility of the Plaintiff having to repay these pension benefits. Ms. Klinck attended for the entirety of the meeting.”
14The plaintiff argues that the privilege does not exempt the entirety of the notes and that a redacted version should be produced. I do not agree. As stated in Currie v. Symcor Inc. 2008 CanLII 37901 at paragraph 46, solicitor-client privilege includes not only the legal advice given but also protects the factual, financial and administrative information provided to counsel in order for her to provide her opinion.
Incomplete and unresponsive undertakings chart
15The defendant has provided answers to the plaintiff but has not done so in chart format. This is a requirement of the rules. The plaintiff has updated the chart on his own, but it is unclear whether the defendant’s last answer to a question is a standalone answer or whether all its answers are cumulative. Further, its reference to various attachments is unclear. The defendant shall use the chart that was included in the motion record and update it to properly reflect its complete and final responses. It shall also identify with particularity any documents to which it refers.
Conclusion and Costs
16The defendant shall provide the ordered answers and charts within 30 days of the date of this order. I note in the plaintiff’s costs submissions that he delivered a rule 49 offer to settle the motion. If the parties have attempted to settle the issue of costs after having reviewed this decision, but are unable to do so, they may each file a supplementary two page costs outline with information on the offer to settle. The material is to be delivered by email to my assistant trial coordinator Ms. Meditskos at Christine.Meditskos@ontario.ca by 30 September 2022.
Associate Justice Jolley
Date: 8 September 2022