Court File and Parties

COURT FILE NO.: CV-15-64549 DATE: 2023/02/10

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Park Plaintiff – and – Costco Wholesale Canada Ltd. Defendant

Counsel: Joseph W.L. Griffiths, for the Plaintiff Natasha Hyppolite, for the Defendant

HEARD: December 6, 7, 8, 9, and 10, 2021, July 4, 5, and 6, 2022, written submissions received on August 8 and September 8, 2022

REASONS FOR JUDGMENT

RYAN BELL j.

Overview

[1] Robert Park was a 20-year employee of Costco Wholesale Canada Ltd. when he was terminated without notice on April 22, 2015, after he had twice deleted a website he created for Costco’s use.

[2] Costco maintains that Mr. Park’s deletion of the website was wilful and intentional, and in defiance of the clear directions of Costco management. Costco says that the double deletion of the website, together with what it alleges was insubordinate behaviour towards management by Mr. Park and his dishonesty, amounted to wilful misconduct warranting Mr. Park’s dismissal for just cause.

[3] Mr. Park denies that his deletion of the website, either alone or in combination with other factors relied upon by Costco, justified Costco’s decision to terminate his employment for cause. While Mr. Park acknowledges that his deletion of the website was “unquestionably poor judgment,” he says it was a knee-jerk reaction to an email he received from his former supervisor, someone with whom Costco knew Mr. Park had a “toxic relationship” and was the chief cause of Mr. Park’s “significant mental health difficulties” in the work environment.

[4] Mr. Park claims that he was wrongfully dismissed from his employment at Costco. He claims damages of 24 months’ pay in lieu of reasonable notice, and for loss of his extended health and pension benefits. He also seeks damages for breach of his human rights and bad faith, and aggravated damages.

[5] For the following reasons, I dismiss Mr. Park’s action. I find that Mr. Park engaged in wilful misconduct that was incompatible with the fundamental terms of his employment relationship with Costco and that Costco was therefore justified in terminating Mr. Park’s employment for cause.

Background Facts

[6] Mr. Park began working for Costco on August 31, 1995, as a front-end packer. Over the next 19.5 years, he worked at multiple warehouse locations before he was transferred, at his request, to Costco’s head office in Ottawa. There, he worked his way up to the position of assistant buyer. At the time his employment was terminated, Mr. Park was an assistant buyer in the lawn and garden department of Costco’s Ottawa office. His annual salary was approximately $74,600.

[7] Mr. Park first became an assistant buyer in 2011 in Costco’s media department. As assistant buyer, Mr. Park was responsible for monitoring inventory and sales, setting prices, negotiating with vendors, and resolving accounting discrepancies. As assistant buyer, Mr. Park also oversaw and directed the activities of inventory control specialists.

[8] There is no dispute that as a Costco assistant buyer, Mr. Park was in a managerial-level position and that Costco’s “Standard of Ethics – Managers/Supervisors” applied to him.

[9] In February 2012, Mr. Park was promoted to the position of “buyer in training” in the seasonal and toys department. He remained in the position for approximately five months, during which time he reported to Mr. Zapp, the assistant general merchandise manager.

[10] In July 2012, Mr. Park returned to the position of assistant buyer in the seasonal and toys department, reporting to the then-buyer, Mr. Malizia. As assistant buyer, Mr. Park had significant security access and editing capabilities on a variety of Costco systems. In particular, he could access and edit the pricing database to change the prices of products, the units of product orders, product descriptions, and product weights. Mr. Park testified that, in moving back, he felt that Costco had “forced the demotion on me,” and that he felt “mistreated” and “abused.” However, he also agreed that his desire to progress further was “negligible.”

[11] In March 2014, Eric Breton was promoted to acting buyer in toys and became Mr. Park’s direct manager. Mr. Breton, in turn, reported to Mr. Zapp, and Mr. Zapp reported to Mr. Fleming, the general merchandise manager. Mr. Breton testified at trial.

[12] Mr. Park admitted that he did not like either Mr. Zapp or Mr. Fleming: Mr. Park testified that he felt Mr. Fleming gave him negative feedback when it was not deserved, and he resented both Mr. Zapp and Mr. Fleming because he, Mr. Park, believed they were not receptive to his concerns when he did not become a buyer.

[13] Mr. Park also testified about the conflict he had with Mr. Breton, which Mr. Park claimed began when Mr. Breton allegedly made a racist comment (a comment that Mr. Breton denies he made). Mr. Park claimed that he wasn’t looking for Mr. Breton to be fired, but said he asked for a transfer, which was refused: “just get me out of the environment.” When Mr. Park learned that Mr. Breton had been promoted to the position of permanent buyer, that “set [him] off” and Mr. Park was very unhappy. Mr. Park also testified that he refused an entire performance evaluation because of his conflicts with Mr. Breton. For his part, Mr. Breton was aware that Mr. Park was angry about the former’s promotion, but he did not let Mr. Park’s resentment hinder their working relationship.

[14] In Mr. Park’s 2014 performance appraisal, Mr. Breton acknowledged that Mr. Park was passionate and knowledgeable. Costco also recognized Mr. Park’s frustration with past events, including his move back to the position of assistant buyer. Mr. Breton encouraged Mr. Park to adopt a “can do and positive attitude” and noted that a “more consistently positive outlook” would help Mr. Park maximize his group’s teamwork and collaboration.

[15] In relation to interpersonal skills, Costco noted that Mr. Park needed to “[k]eep the passion but moderate the attitude.” In his testimony, Mr. Park acknowledged that he would show his frustration, swear, and raise his voice.

Mr. Park’s First Medical Leave

[16] During his employment with Costco, Mr. Park took two medical leaves: the first from January 23 to March 10, 2014, and the second from February 3 to February 23, 2015.

[17] Following his medical leave in 2014, Mr. Park returned to work on March 10, 2014 without issue. The insurer, Manulife, confirmed that his return was “successful and stable.” Mr. Park attributes his first short-term disability leave to a “verbal consultation” added to his employee file, together with his “earlier frustrations.” While Mr. Park asks me to conclude that these matters were the cause of Mr. Park’s “total disab[ility]” at the time, the evidence does not support such a finding.

Mr. Park’s Second Medical Leave and His Return to Work

[18] On February 21, 2015, during his second medical leave, Mr. Park called his treating physician to ask whether she could recommend a transfer to another department. A transcription of Mr. Park’s voicemail message was entered into evidence at trial. Mr. Park in fact returned to work on February 23, without any recommendations from his treating physician. A medical letter did follow a few weeks later. In advance of Mr. Park’s return to work, Manulife communicated to Costco their recommendation that a work facilitation meeting take place.

[19] On the day Mr. Park returned to work, Mr. Leblanc, a director of human resources, was advised by the company’s benefits coordinator that Mr. Park might be interested in moving to another department. Mr. Leblanc testified that on February 23, he spoke to Mr. Park about a potential transfer and advised him that Costco would consider his request.

[20] There are no notes of the meeting that took place between Mr. Leblanc and Mr. Park on February 23. In the absence of any notes, Mr. Park invites the court to make inferences about what was discussed at the meeting and Costco’s motives and intentions. I am not prepared to do so for two reasons. First, there is no evidence that it was standard practice for Costco’s HR directors to keep notes of their meetings with employees.

[21] Second, and with respect, Mr. Park’s invitation to the court is an invitation to speculate, and nothing more. For example, Mr. Park submits “it is probable that Costco may have actively discouraged [Mr. Park] from pushing his request.” There is no basis in the evidence to support this submission. Significantly, Mr. Leblanc was not cross-examined about how Costco intended to treat Mr. Park’s request for a transfer.

[22] There was evidence at trial that, in practice, transfers are relatively rare at Costco. Mr. Leblanc testified that they only happen when there is an available position, and someone would benefit from the experience in a different position. Costco’s Employee Agreement sets out the process an employee is required to follow to request a transfer to a different location using mandatory language – “you must.” Mr. Park did not follow the requisite process when he requested a transfer.

[23] On March 16, 2015, approximately three weeks after his return to work, Mr. Park provided Mr. Leblanc with a March 10, 2015 letter from his treating physician, which indicated that Mr. Park “will need accommodation to reduce the stress in his workplace. Specifically, he may benefit from being transferred to another department.”

[24] On March 17, Mr. Leblanc sent an internal email reporting that he had met with Mr. Park that day. Mr. Leblanc reported that Mr. Park was “definitely unhappy” in his current position as assistant buyer in Toys, did not like the people he was working with, stated that if he remained where he was “things will not go well,” and thought he had been “black-listed” in terms of ever being promoted. Mr. Leblanc also reported that Mr. Park had obtained a doctor’s note supporting a change in department to reduce the significant stress he was experiencing in his current department.

[25] Following receipt of Mr. Leblanc’s report, Costco confirmed internally that Mr. Park would move to the lawn and garden department, effective April 13, 2015. Mr. Park would be advised the week of March 30, 2015.

[26] On March 18, 2015, Mr. Leblanc spoke to Mr. Park and advised him that he would be transferred to a different department, but that it could be a number of weeks before the move was finalized. Mr. Park emailed Mr. Leblanc on March 27, 2015, inquiring about the timeline for the transfer and querying whether “HR are actually taking steps to initiate this process.” There is no evidence to support Mr. Park’s submission that Costco’s decision to “withhold [the date of the transfer announcement] likely contributed to Robert’s ongoing anxiety and concerns.”

[27] Mr. Park’s transfer to the position of assistant buyer in the lawn and garden department, effective April 13, 2015, was announced March 30, 2015.

[28] In my view, little, if anything, turns on the fact that there is an apparent discrepancy in the timing between Mr. Leblanc’s email exchange with Mr. Park, and Mr. Leblanc’s internal email exchange with his colleagues. Mr. Park submits that Mr. Leblanc’s statement to his colleagues on March 17, 2015 that “I met with Rob Park today” is a lie and adversely impacts Mr. Leblanc’s credibility. I disagree. First, Mr. Leblanc’s evidence on cross-examination was clear and specific: “If I said I met with him, I met with him” and “I asked him to explain his comment that ‘things will not go well.’” Mr. Leblanc specifically testified that he was not “scrambling” to address Mr. Park’s situation.

[29] Second, Mr. Leblanc’s internal email references matters about which Mr. Park testified at trial, in similar terms. They include Mr. Park’s testimony that when “Eric was promoted to permanent buyer, that set me off…there was no way I could continue in that department, I’ve got to be moved, it’s not going to go well,” and Mr. Park’s evidence that he felt like he was “black-balled.”

[30] Third, Mr. Leblanc’s internal email references that Mr. Park “now has a doctor’s note” supporting a change in department; there is no issue that the doctor’s note was not provided to Mr. Leblanc until March 16, 2015.

[31] There was no evidence led at trial to support Mr. Park’s suggestion that Costco was not going to act on Mr. Park’s request for a transfer until Mr. Park raised it as an accommodation. The transfer was announced two weeks after Costco received Mr. Park’s medical note. There was testimony from Mr. Leblanc that this was not an unreasonable period of time, given that Costco had to consider what positions might be available. On the evidence adduced at trial, I find that Costco acted in good faith in arranging Mr. Park’s transfer to a different department and that there was no unreasonable delay.

Creation of the Website by Mr. Park

[32] Beginning in late 2014, Mr. Park built a Google cloud-based website for the toys department. The website served as an online platform that allowed users within the department to easily share files with one another. Mr. Park developed and worked on the website during work hours, with the assistance of an inventory control specialist, who helped him with testing the site. Mr. Park described the website as his “pet project.”

[33] There is no dispute that the website was Costco property.

[34] Mr. Breton’s uncontroverted evidence at trial was that he was aware that Mr. Park was working on the website during work hours. Mr. Breton told Mr. Park that the website was a good idea and that it would be useful to the department, and he encouraged Mr. Park to send it to management.

[35] Mr. Park took Mr. Breton up on his suggestion. On January 19, 2015, Mr. Park sent an email with a link to the website to management, and expressed a desire to share the website with his department, as well as regionally and to the international division: “take a browse and test her out.” Mr. Fleming told Mr. Breton that they would look into the website. It is not disputed that Costco did not provide Mr. Park with feedback on the website. There was evidence that Mr. Park’s email to management coincided with Costco’s busy period in buying. In addition, Mr. Park was on medical leave from February 5 to 23, 2015.

[36] Mr. Park did not make inquiries of management about the website on his return to work on February 23.

The Deletion of the Website

[37] On April 10, 2015, Mr. Fleming advised Mr. Breton in an email that he could no longer access the website. Based on the evidence adduced at trial, the relevant timeline of events thereafter is the following.

[38] On April 13, at 5:09 p.m., the day Mr. Park began his new position in the lawn and garden department, Mr. Breton emailed Mr. Park as follows:

Hi Robert could you please grant us the access for the Google site you created for D28 Toys. At the same time, would you mind change [ sic ] the ownership to myself and Mark. thank you.

[39] On April 14, at 7:35 a.m. Mr. Park deleted the website. Mr. Park testified that he thought he deleted the website “right after” he saw Mr. Leblanc’s email. Mr. Park testified that he was “furious” and that it “was infuriating that they would pull this stunt.” He thought “they were asking for a revenge tactic or out of spite.”

[40] Then, at 7:37 a.m., Mr Park emailed Mr. Breton as follows:

I deleted the site, you nor Murray no Jason every [ sic ] got back to me on whether or not you wanted to use it. After a few months of no communication it gives the impression that no one is interested in it.

[41] At 7:55 a.m., Mr. Fleming emailed Mr. Park:

Robert... I am disappointed. You were sending updating links to INFs for it until a couple of weeks ago. You never asked for feedback after the first time showing it to me. Next time, you need to ask your buyer before removing something from the system that other people have the ability to use.

[42] At 8:00 a.m., Mr. Park responded to Mr. Fleming, Mr. Breton and Claudine Giroux, another Costco manager, in the following terms:

Wow! I was using the site for my use, no one was interested, the container sheets were having to be updated on the drive not the site....exactly how many times should I be asking for an update, can I not trust in my managers to be able to get back to me in a timely manner and not ignore my requests? They need to take some ownership and responsibility. Jason replied in Jan, saying he would look at it when he got back from China...maybe you need to review with your managers how to manage their workloads...I shouldn’t have to babysit and always have to do the follow-up.

[43] At 11:04 a.m., Costco was able to restore the website. Mr. Breton emailed Mr. Park at 1:33 p.m. to tell him that the website had been restored.

[44] At 1:12 p.m., before Mr. Breton’s email was sent, Mr. Park deleted the website a second time, first from his computer, and then from the computer’s recycling bin. Mr. Park testified that he did not know the website had been restored. He saw the program on his computer and thought that maybe he had not deleted it properly.

[45] Mr. Park agreed that both deletions of the website were deliberate. He also admitted to making a false and misleading statement in applying for employment insurance in stating that maybe his employer had “hacked his account.”

Costco’s Termination of Mr. Park

[46] Costco conducted an internal IT investigation concerning the deletion of the website. On April 16, 2015, IT support reported to Mr. Fleming:

The Site was firstly deleted by robert.park@costco.com on 4/14 4:35am PST. After, at the same date, it was restored on 4/14 8:04am PST by tclarkg@costco.com . Subsequently, the site was deleted and then permanently deleted by robert.park@costco.com on 4/14 at 10:12am PST.

[47] Mr. Leblanc testified that upper management was required to review and approve the termination. Mr. Leblanc gave evidence that he completed a request for termination form, which he testified is required for any employee who has been employed for more than five years. In the case of Mr. Park, Mr. Leblanc testified that Mr. Park’s termination required the approval of a vice-president, Ms. Brien, and her superior.

[48] On April 22, 2015, Mr. Leblanc and Mr. Fleming met with Mr. Park to advise that his employment was terminated for cause. The reason proffered was Mr. Park’s deletion of the website.

The Employee Agreement

[49] Mr. Park’s employment with Costco was governed by an employment agreement. Mr. Park was familiar with the Employee Agreement and, in particular, the standards of conduct by which managers were expected to abide. He acknowledged that it is important for management employees to follow the standards, and stated that they have “an extra onus” as leaders to set the proper example. Mr. Park also acknowledged that violations of the Employee Agreement could lead to discipline, up to and including termination.

[50] Section 11.2 is entitled “Causes for Termination.” The section expressly states that “[t]he general course of action will be termination of employment.” The causes for termination include:

18. Wilful damage or destruction of Company property, equipment, merchandise or property of others on Company premises.
19. Any act of insubordination, including but not limited to: a. refusal to comply with the direct instructions or directions of a manager; b. contemptuous behaviour or remarks to a manager.

[51] Section 11.6 sets out the standards of ethics for managers. Section 11.6 provides in part:

In accepting a position of management, you must be committed to and demonstrate a role of honesty and forthrightness. Anytime there is the slightest doubt about an activity that could be questioned regarding honesty, integrity or intent, you must discuss it with your Manager or Regional Vice President to remove any doubt. Managers above all else lead by example.

At the core of our philosophy as a company must be the implicit understanding that not one of us is required to lie or cheat on behalf of Costco or to enhance our company or personal performance. Managers must never engage in any activity that could raise a question concerning their integrity.

[52] Section 11.7 reiterates that “all creative work, business ideas and products” that an employee designs and develops in their role as a Costco employee or related to the business of Costco are the sole property of Costco.

Did Costco Have Just Cause to Summarily Dismiss Mr. Park?

The Test

[53] In McKinley v. BC Tel, at para. 48, the Supreme Court of Canada established the standard to be applied when assessing whether an employee’s dishonest conduct gives rise to just cause for dismissal:

More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. [1]

[54] The core question for determination is whether the employee engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. Dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship; this is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct: Dowling v. Ontario (Workplace Safety and Insurance Board), at para. 49. [2]

[55] As set out by Gillese J.A. in Dowling, at para. 50, application of the standard consists of,

1. determining the nature and extent of the misconduct;
2. considering the surrounding circumstances; and
3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

[56] The first step is self-explanatory.

[57] The second step engages a consideration of the employee within the employment relationship. The circumstances of both the employee and the employer must be considered. In relation to the employee, the relevant factors include age, employment history, seniority, role, and responsibilities. In relation to the employer, the considerations include the type of business or activity, any relevant employer policies or practices, the employee’s position within the organisation, and the degree of trust reposed in the employee: Dowling, at para. 52.

[58] At the third step, the judge must assess whether the misconduct is reconcilable with sustaining the employment relationship. This requires consideration of the proved misconduct, within the employment context, to determine whether the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship: Dowling, at para. 53.

The Nature of the Misconduct Alleged

[59] Mr. Park submits that because he admitted deleting the website from the outset, the issue at trial “isn’t really” about the deletion of the site, but rather whether the deletion alone, or in combination with other factors, justified Costco’s decision to terminate Mr. Park’s employment for cause. With respect, this submission ignores the fact that Mr. Park deleted the website, not once, but twice. It also ignores Mr. Park’s acknowledgement at trial that both deletions were deliberate.

[60] Mr. Park’s characterization of the second deletion as “persisting in his attempt to delete the website” is not credible. The second deletion, like the first, was a deliberate, discrete act, separated from the first deletion by several hours. Mr. Park’s attempt to now characterize the second deletion as merely an extension or continuation of the first also lacks credibility because: (i) following his termination, he did not admit to deleting the website a second time; (ii) in his statement of defence, he pleaded that he did not delete the website the second time; and (iii) Mr. Park conceded on cross-examination that he had made a false and misleading statement to Service Canada regarding the second deletion – suggesting that maybe his employer had “hacked” his computer – in order to obtain employment insurance benefits.

[61] I find that the first act of misconduct occurred when Mr. Park deleted the website after receiving Mr. Breton’s email. Mr. Park admitted that he read Mr. Breton’s email before he, Mr. Park, deliberately deleted the website. I will address Mr. Park’s evidence that he did not believe Mr. Breton’s request to be genuine in my consideration of Mr. Park’s circumstances.

[62] I find that the deliberate deletion of the website amounted to damage or destruction of Costco property and was contrary to the terms of the Employee Agreement. Mr. Park suggests that there was no evidence led by Costco that the website’s destruction “was at all meaningful” and that the website was “no more significant to Costco than a loaf of day old bread.” I disagree for two reasons.

[63] First, I agree with Costco that given Mr. Breton requested access to the website because Costco intended to use it, it cannot be said that the website had no value. In addition, personnel from buying had access to the website and Mr. Park had been sending updated links until a couple of weeks prior to Mr. Breton’s request.

[64] Second, this submission is contrary to Mr. Park’s own evidence that he wanted Costco to use the website because he thought it would be a valuable tool for the company.

[65] I find that the second act of misconduct occurred when Mr. Park sent his email to Mr. Breton at 7:37 a.m., stating that he, Mr. Park, deleted the site: “[no one] got back to me on whether or not you wanted to use it” and “after a few months of no communication it gives the impression that no one is interested in it.” I find that Mr. Park’s email was misleading in that it did not communicate that Mr. Park had deleted the website in response to Mr. Breton’s email: the wording of the email, read objectively, suggests that Mr. Park had deleted the site at some time in the past because no one got back to him on whether they wanted to use it.

[66] Certainly, it appears that this is how Mr. Fleming read Mr. Park’s email. In his response to Mr. Park, Mr. Fleming stated that Mr. Park was sending updated links “until a couple of weeks ago” and “next time, you need to ask your buyer before removing something from the system that other people have the ability to use.” In any event, at the very least, Mr. Park’s email to Mr. Breton was not forthright.

[67] I find that the third act of misconduct occurred when Mr. Park responded to Mr. Fleming, Mr. Breton, and Ms. Giroux. I have no hesitation in finding that the language used by Mr. Park in his email was insubordinate and disrespectful. For example, Mr. Park demanded “exactly how many times should I be asking for an update, can I not trust in my managers to be able to get back to me in a timely manner and not ignore my requests?” Mr. Park stated that his managers “need to take some ownership and responsibility.” He suggested that the recipients “need to review with your managers how to manage their workloads...I shouldn’t have to babysit.” Mr. Park’s comments can only be described as inflammatory and disrespectful. These words seriously undermined management’s authority: Partridge v. Botony Dental Corporation, at para. 32. [3] I find that these statements constitute contemptuous remarks to a manager and together, are an act of insubordination as defined in s. 19(b) of the Employee Agreement. Mr. Park testified as to the “extra onus” on management employees as leaders to set the “proper example” and knew that violations of the Employee Agreement could result in disciplinary measures, including termination.

[68] I find that the fourth act of misconduct occurred when Mr. Park deleted the website a second time, this time from both his computer and from the computer’s recycling bin. Mr. Park submits that there is no evidence that he wilfully disregarded an instruction to not delete the website after it was restored. However, Mr. Park admitted that the second deletion was deliberate. I find that the second deletion was in defiance of Mr. Fleming’s earlier email instructing Mr. Park to ask his buyer next time he removed something from the system that other employees could use. It was also contrary to the terms of the Employee Agreement. Finally, Mr. Park misled Service Canada about the second deletion. I find that the second deletion constituted deliberate destruction of Costco property and amounted to an act of insubordination under s. 19(a) of the Employee Agreement. I further find that Mr. Park acted dishonestly when he failed to notify anyone of his second, permanent, deletion of the website.

The Surrounding Circumstances

[69] The relevant circumstances of both the employee and the employer must be considered.

Mr. Park’s Circumstances

[70] Mr. Park was approximately 43 years old when his employment was terminated. He had almost 20 years of dedicated service with Costco. His performance evaluations over the years were positive, with suggestions for improvement being noted in a limited number of areas.

[71] At the time his employment was terminated, Mr. Park was an assistant buyer, a managerial position. As assistant buyer, Mr. Park could access and edit the pricing database to change the prices of products, the units of product orders, product descriptions, and product weights. He was responsible for monitoring inventory and sales, setting prices, negotiating with vendors, and resolving accounting discrepancies. He directed the activities of inventory control specialists in his department.

[72] As an assistant buyer, Mr. Park was bound by the Employee Agreement which expressly provided that causes for termination include wilful damage or destruction of company property and insubordination, including refusal to comply with direct instructions of a manager and contemptuous remarks to a manager. Mr. Park was also bound by the standards of ethics set out in the Employee Agreement and acknowledged the leadership role played by managerial level employees at Costco.

[73] Mr. Park was frustrated with how Costco had treated him, and he submits management was frustrated that Mr. Park was not demonstrating a “positive attitude.” He submits that it was against that context that his relationship with Costco began to unravel. Mr. Park did not like Mr. Zapp or Mr. Fleming. Mr. Park characterized his relationship with Mr. Breton as toxic.

[74] Mr. Park had two medical leaves of absence from work. He returned from his second medical leave on February 23, 2015. Mr. Park requested a transfer upon his return to work. He provided a medical note in support of his request three weeks later.

[75] In support of his denial that his deletion of the website was wilful, Mr. Park submits that “while clearly unfortunate, [his reaction] was colored by his well-documented emotional and mental suffering resulting from his toxic relationship with Breton and those in the Toys department.” In his testimony at trial, Mr. Park made his feelings about Mr. Breton plain; however, Mr. Breton testified that he did not let Mr. Park’s resentment hinder their working relationship.

[76] In any event, there was no evidence adduced at trial to demonstrate how the relationship between Mr. Park and Mr. Breton caused or contributed to Mr. Park’s acts of misconduct. On its face, Mr. Breton’s request to Mr. Park was benign. Mr. Park suggests that, viewed in context, the request was “anything but” benign. Indeed, Mr. Park goes further and submits that he was “triggered” by the email and that his reaction to it was “entirely predictable.” With respect, these submissions are not grounded in the evidence. Mr. Breton testified, and I accept his evidence, that when he requested access to the website from Mr. Park, he was simply following directions from Mr. Fleming. There was no evidence to support Mr. Park’s position that the email was written to needle him, to provoke him, or out of revenge.

Costco’s Circumstances

[77] Costco reposed trust and authority in Mr. Park. Mr. Park explained that it was possible to change the units of products “without anyone really knowing” but that assistant buyers were trusted by the company not to make changes without informing their buyers. Mr. Park had significant security access and editing capabilities to a variety of Costco’s systems, including the pricing and ordering database. Mr. Leblanc testified that only trustworthy employees can be entrusted with such autonomy.

[78] Costco expected its employees to comply with the Employee Agreement and the standards of conduct by which managers, of which Mr. Park was one, were required to abide. Mr. Park himself acknowledged the importance for management employees to follow the standards.

[79] The wilful damage or destruction of company property and insubordination – including contemptuous remarks to a manager – are specifically identified in the Employee Agreement as causes for termination. Costco expected its managerial employees to act with integrity, honesty and forthrightness as required by the standards of ethics and that “[a]nytime there is the slightest doubt about an activity that could be questioned regarding honesty, integrity or intent, you must discuss it with your Manager or Regional Vice President to remove any doubt.”

Proportionality

[80] At this stage of the assessment, I must determine whether Mr. Park’s misconduct was sufficiently serious to warrant dismissal. Three measures are suggested by the Supreme Court in McKinley: (i) did the misconduct violate an essential term of the employment contract; (ii) did it breach the faith inherent to the work relationship; or (iii) was it fundamentally inconsistent with Mr. Park’s obligations to Costco. [4]

[81] On any of these three measures, I find that Costco was justified in dismissing Mr. Park. Mr. Park’s misconduct cannot be reconciled with his employment obligations. His actions were not mere errors in judgment; they were intentional, discrete acts involving the destruction or attempted destruction of company property, insubordination, and sending a misleading email. These actions were committed in the face of his obligation to act with integrity and honesty in the discharge of his duties as an assistant buyer. The Employee Agreement provided that wilful destruction of property and insubordination could result in termination of employment. Mr. Park breached the Employment Agreement and thereby repudiated his employment contract by engaging in conduct incompatible with his obligations thereunder.

[82] Mr. Park’s misconduct consisted of four discrete acts. The misconduct was not insignificant. It was serious. Costco could no longer repose trust in Mr. Park. As Mr. Park himself said, only trustworthy employees can be entrusted with the autonomy given to an assistant buyer. Costco’s trust is essential to the effective performance of the functions of assistant buyer.

[83] It was indispensable to the parties’ employment relationship that Mr. Park exercise the duties of his position with integrity and honesty. When Mr. Park’s acts of misconduct are considered collectively, and in the context of his position, the degree of trust reposed in him by Costco, and the Employee Agreement, I find that termination for cause was a proportionate response.

[84] The analytical framework established by the Supreme Court in McKinley requires that each case be examined on its own particular facts and circumstances, having regard to the nature and seriousness of the dishonesty or misconduct, to assess whether it is reconcilable with sustaining the employment relationship: McKinley, at para. 57. As the Supreme Court observed:

Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause. [5]

[85] The same point was made by the court in Partridge. In dealing with allegations of insolence and insubordination, the court observed that,

Again, context is significant; just cause will only be made out where the employee’s conduct is incompatible with the continuance of the employment relationship ... Examples are words or conduct that is prejudicial to the employer’s business, seriously undermines management’s authority, or destroys harmonious relations between the parties. [6]

[86] In discussing wilful disobedience, the court in Hoang v. Mann, at para. 50, [7] cited The Law of Summary Dismissal in Canada, at s. 16:200: [8]

Wilful disobedience of an employer’s reasonable lawful order, on a matter of substance, strikes at the root of the employment contract, by breaching an essential implied condition of employment; accordingly, such acts or omissions constitute cause for summary dismissal. Even a single or isolated act of disobedience by an employee may justify dismissal, where the act or omission effectively repudiates the employment contract or one of its essential terms.

To constitute just cause, the employee’s disobedience must be a wilful, meaning deliberate and intentional, defiance of a clear and unequivocal order, instruction, policy or procedure of the employer. By wilful, it is meant that the employee’s defiance must be a deliberate act, based on a conscious decision.

[87] Contrary to Mr. Park’s submission, this was not a “single and isolated incident.” The established misconduct consists of four discrete and deliberate acts. Mr. Park’s first deletion of the website was deliberate, without authorization, and contrary to the Employee Agreement. His second deletion was deliberate, without authorization, contrary to the Employee Agreement, and contrary to Mr. Fleming’s instructions. Mr. Park’s email to Mr. Breton was misleading and violated Costco’s standards of ethics for managers: in sending the email, Mr. Park did not act with integrity and honesty. Mr. Park’s email to Mr. Fleming was insubordinate, disrespectful, and contemptuous.

[88] In Render v. ThyssenKrupp Elevator (Canada) Limited, [9] the Court of Appeal addressed the distinction between “just cause” and “wilful misconduct” within the meaning of the regulation under the Employment Standards Act, 2000. [10] At para. 79, the Court of Appeal cited with approval, from Wein J.’s decision in Plester v. Polyone Canada Inc.:

The test is higher that the test for “just cause”.

“In addition to providing that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose”. [11] [emphasis in Render]

[89] Mr. Park’s misconduct in this case can only be described as intentional and deliberate. He admitted that he deleted the website intentionally, twice. He testified that he was angry that Costco had not shown enough interest in the website sooner, and that he felt Costco did not deserve to have the product of his hard work. He wanted to make sure the website was “gone for good” and explained that is why he took the steps he did to delete the website a second time.

[90] Mr. Park’s emails were written and sent intentionally. I find that, in sending the first email to Mr. Breton, Mr. Park intended to mislead Mr. Breton into believing that Mr. Park had deleted the website previously, and not in direct response to Mr. Breton’s email. In writing the second email to Mr. Fleming and others, Mr. Park purposefully engaged in insubordinate behaviour. Mr. Park’s conduct was in violation of the Employee Agreement. This was not conduct that was merely careless, thoughtless, or inadvertent. Mr. Park’s conduct was not trivial, and it was not condoned by Costco. Mr. Park was, colloquially, “being bad on purpose.” I find that his conduct amounted to wilful misconduct that meets the test for just cause for summary dismissal.

Costco’s Investigation Was Not Inadequate

[91] Mr. Park submits that Costco’s investigation following the deletions of the website on April 14, 2015, was inadequate and resulted in a flawed decision to terminate Mr. Park for just cause. I reject this submission for the following reasons.

[92] While there is no obligation on the employer to conduct a particular type of investigation before deciding to dismiss with cause, the onus rests on the employer to have regard to all the facts necessary for a full and fair understanding of what occurred; put differently, the employee has no procedural rights in the employer’s investigation, but the employer must make a decision on the basis of all the relevant facts and considerations: Dziecielski v. Lighting Dimensions Inc., at para. 35; [12] Porta v. Weyerhaeuser Canada Ltd., at para. 14. [13]

[93] In this case, through Google support, Costco determined that Mr. Park deleted the website twice and confirmed the times of both deletions. It was clear that Mr. Park deleted the website twice after Mr. Breton requested access to it. Costco had the emails sent by Mr. Park to Mr. Breton and to Mr. Fleming.

[94] Mr. Park complains that no investigation was conducted that involved him, despite the fact that he had previously expressed his frustration about not being permitted to explain his actions or reasoning. Costco was not obliged to conduct a particular type of investigation or to involve Mr. Park in that investigation provided it made its decision based on the relevant facts and considerations.

[95] Mr. Park also asserts that Costco did not consider the “history of interpersonal conflict” between Mr. Park and Mr. Breton or consider the possibility that Mr. Breton’s views of Mr. Park “coloured the facts.” Mr. Park submits that I should infer, based on Costco’s “lack of disclosure” of termination documentation and internal emails that Mr. Park’s mental health and medical request for accommodation were not properly taken into account by Costco.

[96] I draw no such inference. First, the viva voce and documentary evidence at trial discloses that on April 15, 2015, Mr. Fleming requested IT support to conduct an investigation into the deletion of the website. IT support then worked with Google support and Cloud Sherpa, and reported to Mr. Fleming on April 16, 2015. Mr. Fleming sent Vice President Brien a copy of the information obtained from IT support confirming that Mr. Park had deleted the website twice. Mr. Leblanc then completed a request for termination that “escalated through the hierarchy.” He testified that in Mr. Park’s case, Vice President Brien required approval from her supervisor. On April 22, 2015, after receiving approval, Mr. Leblanc and Mr. Fleming met with Mr. Park to advise him that his employment was terminated for cause.

[97] Second, there was no evidence adduced at trial that Mr. Park’s mental health and his request to be transferred played any role in Costco’s decision to terminate his employment. Mr. Park’s medical note supporting a change in department was not provided to Mr. Leblanc until March 16, 2015. I have found that Costco acted in good faith in arranging Mr. Park’s transfer to a different department and that there was no unreasonable delay involved.

[98] While Mr. Park purports to take issue with the fact that no effort was made to determine whether he had opened Mr. Breton’s email before he, Mr. Park, deleted the website, Mr. Park admitted at trial that he had read Mr. Breton’s email and that his deletion of the website was a reaction to “years of my feeling abused, neglected, and victimized.”

Conclusion on Just Cause

[99] In summary, having regard to the nature of the misconduct, the circumstances of the employee, and the circumstances of the employer, I find that Mr. Park engaged in misconduct that was incompatible with the fundamental terms of his employment relationship with Costco. In the circumstances, summary termination was a proportional response. Mr. Park’s claim that he was wrongfully dismissed by Costco is dismissed.

Remaining Claims

No Entitlement to Damages for Wrongful Dismissal

[100] Costco was entitled to terminate Mr. Park for just cause. It follows from my finding that Mr. Park is not entitled to damages for wrongful dismissal.

No Entitlement to Damages for Breach of the Duty of Good Faith or for Breach of Mr. Park’s Human Rights

[101] Mr. Park claims damages for breach of the duty of good faith and breach of his human rights. Mr. Park submits that by alleging cause, Costco not only deprived Mr. Park of his statutory rights and common law entitlements to pay in lieu of notice, Costco also caused Mr. Park “significant humiliation made worse by the fact that Costco knew or ought to have known that he had only recently recovered from an extended leave of absence related to the manner of treatment in the workplace.” Mr. Park further submits that Costco failed to provide “adequate (or really any) accommodations to Robert as a result of his mental suffering and disabilities” and that Costco instead permitted one of its employees – Mr. Breton – to communicate with Mr. Park when Costco “knew that such communications would provoke a negative reaction.”

[102] Damages resulting from a breach of the duty of good faith and fair dealing in the manner of dismissal are available only if the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”: Honda Canada Inc. v. Keays, at para. 57. [14] Mr. Park has not established that Costco engaged in any bad faith conduct or unfair dealing in the course of his dismissal. The evidence at trial was, and I find that, Costco informed only those in management who needed to know, Costco waited until it had confirmed that Mr. Park deleted the website and the timing of the deletions before proceeding with his dismissal, and Costco conducted the termination meeting in confidence, early in the morning.

[103] Further, Mr. Park adduced no medical evidence to support his claim for mental distress. The law does not recognize injured feelings and emotional upset attendant upon the loss of one’s job as compensable losses: Wallace v. United Grain Growers Ltd., at para. 103. [15]

[104] Damages under the Human Rights Code (Ontario) [16] are remedial and intended to compensate for infringement of rights under the Code: Currie v. Nylene Canada Inc., at para. 23. [17] To establish a prima facie case of discrimination, a complainant must show that they have a characteristic protected from discrimination under the Code, that they experienced an adverse impact with respect to the employment, and that the protected characteristic was a factor in the adverse impact.

[105] In Stewart v. Elk Valley Coal Corp., [18] the Supreme Court of Canada made clear that the connection between a protected characteristic and adverse treatment must be based on evidence:

It cannot be assumed that Mr. Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence. [19]

[106] Mr. Park’s submission regarding the connection between his mental health and his termination is summarized at para. 89 of his written submissions:

From these events, it might reasonably be inferred that, after he returned to work in February 2015, Robert mounted a personal campaign to have himself transferred out of Toys and away from those individuals that were toxic to his mental health. He advocated for himself in the face of Costco’s indifference, dissuasion, and delay. It can be inferred that his doing so raised the hackles of those in charge. His doing so was clearly perceived by others as insolence. His doing so appears to have caused resentment and animosity towards him by his buyer and by his managers. And his doing so was likely the real catalyst for Costco’s decision to fire him for “just cause” several weeks later.

[107] With respect, this submission rests on speculation and not evidence. I have found on the evidence adduced at trial that Costco was justified in terminating Mr. Park for cause. His misconduct was wilful and deliberate. It was in breach of the Employee Agreement. His conduct irreparably damaged Costco’s trust in him. There is no evidence to support a finding that Mr. Park’s mental health and his request to be transferred played any role in Costco’s decision to terminate his employment: British Columbia (Public Service Agency) v. British Columbia Government and Service Employees Union, at para. 15. [20] I find that Mr. Park’s mental health and his request to be transferred played no role in the termination of his employment.

No Entitlement to Damages for Mental Distress

[108] Mr. Park is not entitled to any damages for mental distress allegedly suffered by Mr. Park as a result of his termination. In Boucher v. Wal-Mart Canada Corp., at para. 41, [21] citing Prinzo v. Baycrest Centre for Geriatric Care, [22] the Court of Appeal for Ontario addressed the test for the tort of intentional infliction of mental suffering in the employment context. To succeed, a plaintiff must establish that the employer’s conduct,

1. was flagrant and outrageous;
2. was calculated to harm the employee; and
3. caused the employee to suffer a visible and provable illness.

[109] The second element is entirely subjective in that the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: Boucher, at para. 44. [23]

[110] Costco did not engage in any conduct that was flagrant or outrageous. Costco had just cause to terminate Mr. Park. I find that Costco acted professionally in its communications with Mr. Park and in respect of the termination of his employment.

[111] There was no evidence at trial that Costco intended to harm Mr. Park and, in any event, there was no evidence adduced that Mr. Park suffered a visible and provable illness as a result of Costco’s conduct. To the contrary, Mr. Park testified that he felt “refreshed” and “re-energized” following the termination of his employment.

Conclusion

[112] The action is dismissed, with costs.

[113] In the event the parties are unable to agree on the issue of costs of the action, they may make written submissions limited to a maximum of three pages, exclusive of relevant attachments. Costco shall deliver its costs submissions by February 24, 2023. Mr. Park shall deliver his responding costs submissions by March 10, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Madam Justice Robyn M. Ryan Bell Released: February 10, 2023