Court File and Parties

COURT FILE NO.: CV-19-00625095 DATE: 20230126 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Elizabeth Scull, Plaintiff – and – Ensemble Travel Ltd., Defendant

COUNSEL: Thomas A. Stefanik and Shreya Patel, for the Plaintiff Jeff Mitchell and Neva Lyn Kew, for the Defendant

HEARD: April 25-29, 2022 Written Submissions received July 2022

Carole J. Brown J.

Reasons for Decision

[1] The plaintiff, Elizabeth Scull (“the plaintiff” or “Scull”), brings this action against the defendant, Ensemble Travel Ltd. (“the defendant” or “Ensemble Travel”), alleging that she was terminated without cause from her employment and seeks damages. As a simplified procedure, damages are limited to $100,000.

[2] The summary trial was heard over a five-day period, with the evidence in chief of the four witnesses given by sworn affidavits and viva voce cross-examination and re-examination given thereon.

[3] It is the position of the plaintiff that where resignation is alleged by an employer, the onus is on the employer to prove said resignation. The plaintiff maintains that the defendant has not met this onus and has not adduced clear and convincing evidence of a resignation.

[4] It is the position of the defendant that the plaintiff resigned on June 3, 2019 confirmed her resignation to the defendant on June 4, 2019 and continued to confirm that resignation thereafter. The defendant maintains that it sought unsuccessfully to discuss a termination plan regarding the plaintiff’s date of departure on a date suitable to her and the defendant, at which point her benefits would cease. The plaintiff’s resignation date was June 11, 2019.

Overview

[5] The defendant, Ensemble Travel, is a member-owned organization of travel agencies in the United States and Canada, established in 1968, which offers to the member travel agencies added amenities, exclusive offers and unique hosted tours. Its Canadian offices are located in Toronto and Montréal.

[6] The plaintiff commenced employment with the defendant in their Toronto offices in October 2009 in a contract position and was thereafter hired on February 2, 2010. Her position at the time material to this action was Marketing and Production Manager at a salary of $66,208.56. She reported to the Senior Director of Marketing and Production, Franca Iuele (“Iuele”), with whom she had previously worked at a travel agency. She had been in the travel industry for 25 years.

[7] There were 10 staff in the Toronto office.

[8] The defendant had a hierarchical reporting structure, which was respected. The plaintiff reported to her boss, Iuele, who reported to her boss, the VP of Marketing, Carl Schmitt (“Schmitt”), in New York City. The organization was governed by the CEO, David Harris (“Harris”), with an overseeing Board of Directors (the “Board”).

[9] The plaintiff had been in charge of the Destination Vows program, a “destination wedding” program, which had been created by Iuele and taken over by the plaintiff. In 2018, the plaintiff requested that the responsibility for the program be taken over by others, as she had other responsibilities, which were occupying her time.

[10] It appears that this program played a role in the issues involving her leaving the company.

[11] The seminal events in this action took place over seven business days from June 3 to 7 and June 10 and 11, 2019.

Evidence

The Plaintiff’s Case

Elizabeth Scull

[12] Elizabeth Scull was born June 3, 1957 and, at the material time, was 62 years of age. She had completed grade 12. She had worked in the travel industry for 25 years. In October 2009, she joined Ensemble Travel, starting on a contract basis. She was hired in February 2010. At the material time, she was the Marketing and Production Manager, reporting to the Senior Director, Iuele. Her salary was $66,208.56 per year.

[13] In 2004, she was medically diagnosed with generalized anxiety disorder. She stated that Iuele was aware of this. In cross-examination, she stated that Iuele knew of her anxiety disorder, although she had never provided her with medical documentation and had never asked for accommodation due to the anxiety disorder. Later, in cross-examination, she stated that she had never told Iuele that she had general anxiety, although she did tell Iuele that she had anxiety when flying, but did not tell her that she had general panic attacks. She testified that she had only had one panic attack in the 10 years that she worked for the defendant prior to June 3, 2019, which occurred at the Cancún airport on a business trip when she had lost her boarding pass.

[14] In her affidavit in chief, as regards the events in question, she stated that on June 3, there was a scheduled telephone call with senior management. She requested assistance with Destination Vows, the destination wedding program, but no one responded. After the call, she was upset, crying, and asked Iuele to book her off for one-half day sick leave. She got up and went to her office. Iuele came into her office, at which point she told Iuele that Iuele had thrown her under the bus. She stated that it was actions like these that made her want to resign. She admitted in cross-examination that her voice was raised. She testified that Iuele grabbed her arms and asked her not to do this, at which point she requested that Iuele let her go. She told Iuele to book her off one-half day sick leave. She left the office and went home.

[15] On June 4, she returned to the office. The Vice President of HR, Lisa de Boer (“de Boer”), was in the office from Kelowna, BC, on pre-scheduled business. She met with the plaintiff. She said that Iuele had told her that the plaintiff had resigned, and the plaintiff denied this. She again inquired as to whether the plaintiff had resigned; the plaintiff advised that she had not. She stated that de Boer told her to think about it, not to be in contact with Iuele for 48 hours and that they would discuss the matter that Friday.

[16] On June 5, the plaintiff testified that she wrote an email to de Boer and Schmitt, apologizing for the remark she had made about wanting to resign and received no response from either of them. However, the internal text messages in evidence show that de Boer responded to her on June 6.

[17] In her reply affidavit, she stated that the apology for the resignation remark meant that she was sorry the defendant felt that she had resigned, when she had no intention of doing so.

[18] On June 6, she arrived for work at 7:10 AM. De Boer had indicated that she would be able to go to the Canada Post seminar, which she was scheduled to attend with Iuele. However, she began to experience vertigo and chose not to go.

[19] On June 7, she was experiencing vertigo and called in sick. She had still heard nothing from de Boer regarding her comments on how issues would be resolved.

[20] On Monday, June 10, she came to the office and worked. She heard nothing from de Boer. She spoke with the CEO, Harris, who was in the Toronto office that week. She purposely spoke to Harris to see if he would bring up the situation. He said nothing. As a result, she stated that she knew he did not want to hear her side of the story. In cross-examination, she admitted that she had walked into his office to test him, to see if he knew about the June 3 incident or would question her about it. She was testing to see if he wanted to hear her side of the story, but she testified that he obviously did not as he did not bring it up. She admitted in cross-examination that she was playing a little game. When it was put to her that Harris’ testimony was that she had advised him that she “might be taking a quick exit” and not, as she had stated, that “she might be asked to take a quick exit”, she denied this.

[21] On June 11, she went to work and received a call from de Boer. She stated that de Boer seemed agitated, and spoke in a harassing manner, saying “[w]hat do you want to do? Are you resigning?” The plaintiff advised her that if she did not have to report to Iuele she would consider staying. The plaintiff testified that it was not unreasonable that she could work on her own as she had been there 10 years. The plaintiff testified that she told de Boer that she was not resigning and de Boer could not push her out. The plaintiff testified that de Boer told her that Iuele had been unhappy with the plaintiff’s work for a very long time. However, nothing was documented. The plaintiff stated that de Boer was yelling and berating her and that she felt bullied. She apparently told de Boer that she was recording the conversation, although she admitted in testimony that she had not done so.

[22] She conceded that she had stated that she could report to Schmitt, Iuele’s boss in New York. In cross-examination, she conceded that she was referring to a reporting change or an exit package.

[23] The plaintiff testified that when the defendant offered her re-employment six weeks later, she thought the offer was a sham. Also, she stated that the office atmosphere was toxic, the office was in chaos and she had lost all trust in the management of the company.

[24] The plaintiff stated that she had cleaned out her office because she was being advised that the new HR Manager had been hired and would need her office. In cross-examination, she initially testified that de Boer had told her that the new HR person had been offered a position and that they would need her office. She subsequently conceded that de Boer told her that she did not need to leave her office, but she made that assumption. When it was put to the plaintiff that either she or de Boer was not remembering correctly, as de Boer denied telling the plaintiff that someone had been hired and would need the plaintiff’s office, she agreed.

[25] She testified that de Boer texted her to indicate that June 11 was her last day and that her benefits had been cut off.

[26] As regards the June 3 teleconference, she admitted that there had been a meeting with Iuele and Lopez to review what would be discussed in the North American teleconference. She stated that the preparatory meeting was held because Iuele wanted to be in charge and to dictate what they would say. She subsequently conceded that it was not unreasonable that there would be such a meeting before a North American call to make sure everyone was aligned.

[27] She testified that she brought up the Destination Vows program and wanted it to be discussed during the management call since there were technical issues with the program that she wanted to discuss. It was her evidence that Iuele told her not to deal with it at the North American meeting, but to deal with the technology staff later and to keep her apprised. Subsequently, in cross-examination, she stated that Iuele did not exactly say not to discuss the Destination Vows program, but that the plaintiff knew her and knew that is what she meant. Later, she stated that Iuele did not want her to bring it up but did not say that she should not.

[28] She stated that she brought up the program anyway, but that there was an awkward silence on the call and no response. She stated that she had requested to be taken out of the Destination Vows program in 2018 as she was overworked, but that she continued to be involved in 2019 and felt no one was doing anything to help. She was frustrated about the way in which the program was being managed. At another point in the cross-examination, she stated that she did not bring it up and did not know who did. When confronted with her affidavit which contradicted this, she conceded that she had brought up the Destination Vows program in the senior management teleconference.

[29] After the teleconference, there was a debrief meeting in Iuele’s office, during which the plaintiff began to experience an anxiety attack, heart racing, shaking and crying. They were discussing the Destination Vows program and Iuele stated that she would take it over and not to worry about it. She further stated that she had started the program 10 years ago and the plaintiff should not worry about it, at which point the plaintiff said that before she took it over “it was a piece of shit”. She admitted that she was upset and her voice was raised.

[30] The plaintiff denied that she had said, in the debrief meeting, that Lenoir, whose name had been raised regarding assistance with the Destination Vows program, could not speak English well enough to assist. She stated that her concern was Lenoir’s ability to translate from French to English, as her English was not good and she could not write English very well. She subsequently admitted that she had made the comment about Lenoir’s speaking skills.

[31] The plaintiff subsequently went to her own office. Iuele followed her. She told Iuele to book her off on a one-half sick day. She told Iuele that Iuele had thrown her under the bus, and that when she did things like this, it made the plaintiff want to resign. She began to gather up her personal belongings and laptop, and was crying, when Iuele came and took her by the arms. She got upset and told Iuele to release her arms. She did explain that Iuele had not grabbed her arms forcefully; they had been friends for 20 years; she had held the plaintiff’s arms down not in a violent or forceful way, but almost like a friend and pleaded for her not to leave as it was her birthday and they were planning a party for her. She did not hold her arms for more than 10 to 15 seconds. She did not report this to anyone, nor did she include it in her affidavit in chief, although she insists that she did tell de Boer.

[32] Iuele left the plaintiff’s office and the plaintiff left for the day.

[33] She had an email exchange with another colleague and stated “I just walked off the job.” She acknowledged that this could be understood as resigning, but that her colleague had called her shortly afterward and she explained what had occurred.

[34] On June 4, she went to work. De Boer was in the Toronto office from Kelowna, BC. She came to the plaintiff’s office, indicated that Iuele had advised that the plaintiff had resigned and the plaintiff denied this.

[35] The plaintiff stated that she believed the meeting was positive and that de Boer was supporting her. De Boer urged the plaintiff to think about what she really wanted and how they could resolve the issue. In her mind, she believed the statement was made with respect to staying with the company.

[36] On June 5, she worked from home as she always did on Wednesdays. She wrote a lengthy email to de Boer and Schmitt. She apologized for her behaviour and her resignation comment. She continued the email with critical, demeaning comments about Iuele. She concluded by indicating that she needed more time to think about how to resolve the issues, and how to move forward. She stated that they did not respond, although she failed to mention the internal text messages that de Boer sent thanking her for her email and indicating that they could speak next week.

[37] On June 6, the plaintiff was scheduled to attend the Canada Post seminar at 9 AM, but stated that she began to panic prior to that time and decided not to go. However, she had texted a work colleague at 7:58 AM before the vertigo started, indicating that she was not attending.

[38] She testified that she did not attend work on June 7 due to vertigo.

[39] She communicated with de Boer that the relationship with Iuele may not be fixable.

The Defendant’s Case

Franca Iuele

[40] Franca Iuele was the Senior Director of Marketing and Product Development in the defendant’s Toronto office. She reported to Carl Schmitt in New York City and was in regular communication with David Harris, the CEO.

[41] The plaintiff reported directly to Iuele.

[42] Iuele testified that the plaintiff wanted to work on her own and did not want to work in a team setting or to delegate work to others. She testified that the plaintiff did not approve of the direction that the Destination Vows program was taking in the US (more teamwork), and indicated that if Canada were taking the same direction, she did not want to be associated with the program. As at December 2018, the responsibility for the program was transitioned to Iuele, Lenoir and a person in the United States. The plaintiff’s role was reduced to liaising with the Destination Wedding and Honeymoon Specialists Association, and providing guidance as needed, in order that she could focus on publications. Her work had always been excellent.

[43] In the preparatory meeting prior to the North American senior management teleconference on June 3, the plaintiff did not raise the Destination Vows program, nor was it on the agenda. In the North American teleconference, she did raise the Destination Vows program and expressed concerns with technological tools, stating that she needed help as the technology staff did not know what he was doing. As a result of the plaintiff’s intervention in the senior management meeting, Iuele testified that she asked Lenoir, who was conversant with the program and the technology, to provide additional feedback regarding the program. They were advised that the program was in the first stage, would take several stages for all parts to come together and that it was progressing as expected, which contradicted the plaintiff’s assessment.

[44] Iuele stated that, in the debriefing meeting, she could see that the plaintiff was getting agitated and wanted her responsibility with the program reduced or removed. Iuele tried to help her to calm down, told her not to worry about the project and assured her that she would not have to be responsible for the program. She became more agitated and aggressive and questioned Iuele’s ability to manage the project. When Iuele stated that she would ask Lenoir to assist with the project, the plaintiff stated that Lenoir could not speak English well enough to participate, although she is fully bilingual, and also stated that what Iuele originally created in the Destination Vows program before the plaintiff took over was “a piece of shit”. She left the office and went to her own office.

[45] Iuele was concerned about her and the disruption she was creating for other employees, so went to her office. The plaintiff was crying, screaming and yelling. Iuele asked what she had done to elicit this and the plaintiff stated that Iuele always threw her team under the bus, that the plaintiff was leaving and words to the effect that she would be resigning. She said either “I’m resigning” or “I will be resigning”. Her tone was that she had had enough and was leaving.

[46] Iuele stated that she did not touch or restrain the plaintiff. Iuele was somewhat frightened by her aggressive behaviour. The plaintiff left and emailed two people indicating to one: “I just walked off the job” and to another “I had an argument with Franca and walked out LOL”. Iuele found her behaviour to be unprofessional and highly inappropriate. Prior to this, there were no issues with her professionalism. This was completely out of character. Iuele testified that she had not encountered such behaviour before. She documented the incident in her “Incident Notes”, which were in evidence in this trial. In the Incident Notes, Iuele testified that she did not state that the plaintiff had resigned, because she wanted to give the plaintiff time to return and resolve the issue. She stated that she deliberately withheld this from Schmitt, as she was concerned that if she told Schmitt, there may be no path back for the plaintiff.

[47] When de Boer came to the office on June 4, Iuele advised her that the plaintiff had mentioned resigning, as De Boer was going to meet with the plaintiff. When asked if Iuele wanted de Boer to convince the plaintiff to stay, Iuele stated that she would be sad to lose the plaintiff but was ambivalent as to whether she remained or departed. Iuele would be fine either way; if the plaintiff was not happy, she could resign.

[48] No one had accepted her resignation at that point.

[49] De Boer returned after the meeting with the plaintiff and advised that the plaintiff was thinking things over. De Boer stated that she would be communicating with the plaintiff and that Iuele did not need to do so. She advised Iuele not to discuss the incident with the plaintiff.

[50] The plaintiff worked from her home, as she always did on Wednesdays. On Thursday, June 6, she was to attend a scheduled Canada Post seminar for which she had been registered by Ensemble Travel. However, the plaintiff did not appear at the seminar. De Boer emailed Lopez who advised her that the plaintiff was in the office. The plaintiff had not advised Iuele, who testified that this was not in keeping with her expectations of the plaintiff.

[51] On June 7, the plaintiff sent a text message indicating that she was ill and would not be in the office. Iuele had no contact with the plaintiff thereafter and flew to Newfoundland on a business trip on June 11.

[52] When she returned on June 24, the plaintiff’s resignation had been accepted by the defendant and the plaintiff was no longer employed with the defendant.

[53] The defendant had been recruiting for an HR Manager for Toronto, but no announcement had been made of anyone being hired, contrary to the plaintiff’s evidence, at the time she cleared her office. Someone was hired and the announcement was made on June 20 with the new HR Manager to commence employment on July 15. The new HR Manager would likely have been given the office next to the plaintiff which was occupied by a less senior person.

[54] Contrary to the plaintiff’s statement, the defendant filed the plaintiff’s Record of Employment with Service Canada on June 19, 2019. The records indicate that the plaintiff was paid for all vacation pay owing contrary to her allegations and testimony. Benefits were stopped on June 11 due to the plaintiff’s resignation, contrary to her statement.

[55] Iuele told de Boer and Schmitt about the June 3 incident, but not about the resignation as she hoped that the plaintiff would change her mind.

[56] The defendant offered the plaintiff her position back six weeks after she resigned, but she refused.

[57] The defendant did not eliminate the plaintiff’s position. They did take their time in replacing her. In December 2019, they hired a Product Manager to do some of the plaintiff’s responsibilities. The plaintiff’s job was divided among Iuele, Lenoir, Burke and the newly hired person. They had decided not to replace the plaintiff, because toward the second half of the year, they were not as busy as the first half of the year, so they were able to take on extra responsibilities. The decision to divide up the plaintiff’s responsibilities was a decision of the entire team. Iuele first had to determine who had capacity and the competencies necessary. She would then go to the VP, as any decision that she took required approval by the VP.

David Harris

[58] David Harris was the CEO of the defendant. He ran the company operationally and from a governance perspective, largely with the direction and cooperation of the elected Board of Directors to which he reported.

[59] Between June 3 and 11, 2019, he was attending to matters in New York City and was not in the Toronto office. He was not aware of the subject incident. He was only in the Toronto office on June 10.

[60] On June 10, the plaintiff came into his office. She told him that she supported him, appreciated what he was doing for the company, that he was a “breath of fresh air” and that she felt that Ensemble Travel was going in the right direction. She then became somewhat teary and he asked if she were okay. She responded that she was but did not want to speak further because she may be taking “a quick exit”. She then left the office. He interpreted her comment to mean that she was making plans to leave Ensemble Travel. He was not aware of the background that had led to that statement.

[61] He sent an email concerning the discussion he had had with the plaintiff to Schmitt and de Boer on June 10. He was out of the office until June 27 and had no further involvement in the matter.

[62] He explained that he had started with Ensemble Travel as an agency member of the network. He had then been invited to submit an interest to work as a Director, was elected and acted as a Director for 11 years. He became the CEO of Ensemble Travel on March 13, 2019.

[63] The plaintiff reported to Iuele, who reported to Schmitt, the VP of Marketing. Harris did not work with the plaintiff directly.

[64] Harris’ role, as the senior person in the organization, was running the company. Prior to March 2019, he was not involved in management of the defendant as an employee. He was elected Director on the Board. The role of the Board was governance and strategic direction for the organization. He was brought in as CEO and was the direct boss and supervisor of the co-presidents, Lindsay Pearlman (“Pearlman”) and Elizabeth Rice (“Rice”). Pearlman resigned in May 2019 and Rice in September 2019, which created some upheaval or tension in the office. At that time, he began working in the Toronto office on a bi-weekly basis through the end of June 2019.

[65] He met the plaintiff in his role of CEO, working in the Toronto office within the first several weeks of March 13, 2019. He did not know her well, nor did he know her personally. He knew her as an employee and someone who reported to a hierarchy of people under him in the company. Her boss was Iuele, who in turn reported to de Boer, who was VP of HR. As of May 2019, when Pearlman resigned or September when Rice resigned, de Boer reported directly to Harris.

[66] He knew Iuele a bit better, as she was involved in marketing presentations to the Board from time to time and was at member events that Harris would attend.

[67] De Boer was responsible for letters of hire, termination, workplace investigation, and complaints between and among employees.

[68] Harris indicated that there was a digital version of the Ensemble Travel Policies and Procedures Manual which was introduced in 2019, he believes prior to his hire as CEO. There had been policies and procedures prior to this digitalized version, but not as formalized as should have been. The document would have been created and then shared and reviewed with the executive or a leadership team prior its completion. Third parties may also have been involved, but he does not know that for a fact.

[69] Prior to June 10, Harris had no knowledge of the issues with respect to the plaintiff. The chain of command would have been for the plaintiff to address any issues with Iuele and if she were not responsive, to go to Iuele’s superior, Schmitt, or to HR or both. If those options had not been sufficient, the issue could be brought to Harris’ attention or to the attention of the Board. He believed that there was also an option to go to an outside third-party.

[70] It is important for HR to listen to issues that arise among employees, get input from others who may be involved and then draw conclusions, although there may be timing issues which would require a response sooner. A conclusion may be premature until all people are spoken to.

[71] Although the plaintiff came to his office on June 10, and then became teary, there is a chain of command or a hierarchy of protocol to address such issues. In the absence of her offering any additional information, Harris did not feel that it was his place to start asking questions and canvassing the situation. There were other people hired to specifically manage that type of situation. From what the plaintiff stated, he assumed that she meant that she was resigning, although it could also have meant that her superior was considering termination. He sent an email to those people who were his immediate reports to apprise them of the situation. When he makes his direct reports aware of the situation, they will then immediately go to the direct reports of the person who is presenting a challenge. In this case, he would advise Schmitt and he also copied de Boer as he believed it was an HR issue and because she was a direct report. He did not have the facts and was not near enough to participate. He expected his direct reports to make such decisions and conduct themselves as appropriate. When he emailed Schmitt, Schmitt responded by email indicating “[s]ounds like a resignation coming”, which suggested that he did not know about the situation prior to June10. When questioned about Iuele’s statement that if she told Schmitt that the plaintiff was resigning, he would say “[o]kay, that’s it.” Harris believed that that was a possibility.

[72] Harris is not required to approve any termination except with respect to his own direct reports. If someone wanted to terminate the plaintiff, they would not need his approval. A severance package, however, would require his approval; his authorization to approve all non-budgeted expenditures over $20,000 required the approval of the Board of Directors.

[73] He was out of the office from June 11-27 and does not recall when he was told about the plaintiff’s resignation.

Lisa de Boer

[74] Lisa de Boer received her Bachelor of Science degree from the University of Victoria. She had a long history of directorships in Strategy, Change Management and Human Resources in the areas of finance, banking, software and global manufacturing companies. She was employed with the defendant from February 8, 2010 through the time material to this action. From March 2017 through April 30, 2020, she was the Executive VP of HR, responsible for the defendant’s human resources strategy project for North America. She explained that her primary roles with Ensemble Travel in Canada and the US were Cultural and Leadership Development.

[75] As regards the company Policy and Procedures Manual, which was put into effect in May 2019, she was not involved in the revision but was involved in facilitating the revision. She stated that if the policies and procedures were not applied or followed, that would likely have been her responsibility.

[76] Prior to June 2019, de Boer had the occasion to speak with the plaintiff from time to time and formed a fairly positive impression of her. She was a nice person and worked hard. For the most part she was professional, although there were times when she was subject to emotional outbursts and others when she would talk about her colleagues and gossip.

[77] On June 3, 2019 at 3:39 PM (ET), de Boer received an email from Iuele regarding an incident that had taken place on that date at a staff meeting. Iuele stated in the email that she had never before faced this type of confrontation and requested de Boer’s assistance in diffusing and dealing with the situation. The Incident Notes were attached, indicating that the plaintiff had been “angry and confrontational” after the North American teleconference, had stated that the Destination Vows program created by Iuele was a “piece of shit” and another employee suggested by Iuele to participate in the Destination Vows program “did not speak English well enough” to participate. The plaintiff further accused Iuele of “throwing her under the bus” during the conference call and subsequently took her bag and left the office.

[78] De Boer was scheduled to be in the Toronto office from June 4-6 on regular business unrelated to the incident with the plaintiff. She was in and out of the office as she was conducting interviews for the HR Manager position.

[79] On June 4, she met with Iuele. They reviewed the incident as documented in the Incident Notes. Iuele advised her that the plaintiff had stated that she was resigning. De Boer inquired as to why Iuele had not told her about the resignation on June 3. Iuele told her that if the plaintiff wanted to retract the resignation and it had already been made known, she was afraid that the plaintiff would not have the ability to do so, which made sense to de Boer coming from Iuele. De Boer testified that she thinks Iuele was trying to protect the plaintiff from the company’s response. De Boer inquired as to whether Iuele wanted her to convince the plaintiff to remain and she stated that while it would be sad to lose the plaintiff, she was ambivalent as to whether she remained with or departed from the defendant. From this, de Boer understood that she should allow the plaintiff to remain if she wanted, but should not try to convince her to stay if she did not want to stay. She stated that Iuele gave her the impression that if the plaintiff had wanted to return that would be okay.

[80] Prior to speaking with Iuele, de Boer had not spoken with the plaintiff and had not formed any conclusion regarding blameworthiness, nor had she formed any conclusions, except that there had been some behaviour that did not sound appropriate if Iuele’s description was accurate.

[81] De Boer met with the plaintiff and inquired as to whether she had resigned on June 3. She confirmed that she had. When asked whether the plaintiff had meant it, she said yes. She indicated to de Boer that she had been looking for other positions and thinking about resigning “for a long time”, that it was “overdue in her mind” and she felt that it was time for her to go. She believed she could make more money working outside the defendant, had received a few job offers and was “sitting on one or two”. De Boer stated that she felt the plaintiff was resolved and calm about her decision.

[82] The plaintiff explained that she did not enjoy the team approach the defendant was moving toward, felt she did not receive the attention she deserved from the defendant’s leaders and that it made her feel like she was not appreciated. She was irritated with everyone. She did not like working in a team setting and did not like change.

[83] De Boer testified that during the conversation she formed the impression that the plaintiff was very unhappy with her job, that she intended to and in fact had resigned on June 3 and had been thinking of doing so for some time. De Boer told the plaintiff that she would accept the plaintiff’s resignation if that is what she wanted and that they should work on a transition plan for her departure, although de Boer encouraged her to think about her resignation for a day or two in case she changed her mind. De Boer asked the plaintiff to think about the resignation and the transition plan. The transition plan was intended to assist an employee in leaving an organization with dignity and respect, and would address how much time she wanted in order to transition to a new job. De Boer also explained that all benefits would cease on the resignation date.

[84] She advised the plaintiff that her behaviour on June 3 was not acceptable and the plaintiff agreed and apologized. De Boer told the plaintiff not to communicate with Iuele about the incident and suggested that they talk by the end of the week about her decision to leave. At the close of the meeting, they hugged and she told the plaintiff that they cared about her and hoped they could make her departure a kind and respectful transition. They agreed to speak on Friday regarding her transition out of Ensemble Travel.

[85] De Boer felt that the meeting had been positive and that they had a path forward which would see the plaintiff leaving the defendant with a transition plan that they would discuss on Friday. She made notes regarding the conversation with the plaintiff.

[86] De Boer testified that she had not advised the plaintiff that a new HR Manager would be taking her office. While it was common knowledge that the defendant was recruiting for a HR Manager for the Toronto office, no offer of employment had been made at that time. An announcement regarding a new HR Manager was not made until June 20, with the HR Manager commencing work on July 15.

[87] On Wednesday, June 5, the plaintiff worked from home, as she always did on Wednesdays. At 8:25 AM, de Boer received an email from the plaintiff, which was also copied to Schmitt, the VP of Marketing. She apologized for walking out and for her “resignation remark”; said she meant the things at that time and acknowledged her behaviour had been inappropriate, that she had suffered from a “build up of emotions” and that her behaviour had not been rational or professional. The email continued with the plaintiff blaming Iuele for a multitude of issues, criticizing and denouncing her. De Boer testified that this reinforced her understanding that the plaintiff had resigned. She did not respond on that day, as she wished to reflect upon a response.

[88] On June 6, she contacted the plaintiff by Ensemble Travel’s internal instant messaging system (“Slack”), which is similar to text messaging. De Boer thanked the plaintiff for her note and reassured her that they would talk as scheduled.

[89] De Boer testified that she was convinced that the plaintiff’s intention was to resign, as that is what the plaintiff had told her on June 4, and she wanted the plaintiff to take time to think about a transition plan. De Boer had explained to her that with a transition plan, her benefits would be extended until the fixed date for leaving the company.

[90] De Boer testified that during these final text messages, the plaintiff stated that “I hope we can resolve this, but I am not sure this is fixable”. In these text messages, the plaintiff also advised her, for the first time, that she suffered from anxiety. The plaintiff had never previously told de Boer that she had been clinically diagnosed with anxiety or provided any medical documentation.

[91] De Boer explained that the plaintiff was still working and coming into work as she was still with the organization, which was still paying her, such that it was still her duty to report to work until the transition plan was in place and a final date for her transitioning out of and leaving the company was fixed upon.

[92] On Friday, June 7, the plaintiff was out of the office, ill. De Boer sent the plaintiff a text message but heard nothing back.

[93] On Monday, June 10, de Boer worked from her office in Kelowna. She received an email from Harris also copied to Schmitt, regarding his encounter with the plaintiff, which again reinforced her belief that the plaintiff had in fact resigned on June 3 and intended to leave shortly without a lengthy working notice period. Schmitt responded saying “Sounds like a resignation coming”, indicating that he did not yet know that the plaintiff had resigned. De Boer believed that Iuele had not initially told Schmitt about the resignation, and understood that Iuele would be telling Schmitt as they were going to a business retreat together in Newfoundland. She did speak with Schmitt on June 11 regarding the resignation.

[94] De Boer sent another text message to the plaintiff reminding her that they were to connect. She received a message back indicating that they could talk any time, and that the plaintiff was available. The plaintiff did not contact de Boer and, since de Boer was at home tending to a sick child, she did not contact the plaintiff until June 11 when she called the plaintiff to discuss her resignation and transition plan. The plaintiff advised that she was not prepared to work under Iuele’s supervision and indicated that the defendant had two choices: either she would rescind her resignation if Ensemble Travel agreed to move her direct reporting relationship to another leader or she would leave and not come back, and Ensemble Travel would pay her a severance. As she had already resigned, no severance would be payable. De Boer understood the plaintiff’s demands to be an ultimatum. At one point, the plaintiff stated that she could work alone without any reporting structure or she could take over Iuele’s position.

[95] De Boer advised her that they could not change the reporting relationship, as that would not be feasible. Thus, her resignation remained.

[96] De Boer testified that the plaintiff then began demeaning Iuele, other colleagues, the technology people and that it was one of the worst telephone calls of de Boer’s career.

[97] De Boer testified that she believed the plaintiff had put herself in a really tough place and did not know how to get out of it.

[98] De Boer testified that in their meeting, the plaintiff never indicated that Iuele had acted inappropriately toward her, and there was no reason why the reporting relationship should change. She testified that having the plaintiff report to a different leader would not make sense operationally as the only person with more seniority than Iuele in the Toronto office was the CEO, Harris. Having a Marketing and Production Manager report to him made no sense. The only other person would be Schmitt, the VP of Marketing, but he was in New York City. De Boer explained to the plaintiff that Ensemble Travel was not agreeable to those options and the plaintiff began to yell. The plaintiff thereafter ended the conversation by hanging up on de Boer.

[99] After the telephone call, they exchanged text messages. De Boer confirmed the defendant’s acceptance of the plaintiff’s resignation as at June 3, notified her that her benefits were discontinued as of June 11 and wished her the best. The plaintiff advised that she would be in touch once she had sought “guidance” on the matter, which de Boer understood to be legal counsel.

[100] In a second text message, de Boer advised the plaintiff that her behaviour and volatility were not acceptable and that she had exhibited a pattern of conduct that de Boer had been told about by her colleagues regarding the June 3 incident. She again wished her the best and, because she understood that the plaintiff would be seeking legal counsel, asked her to be in contact with the defendant’s legal counsel, Jennifer Rodriguez.

[101] Ensemble Travel sent a letter to the plaintiff confirming her resignation and outlining the plaintiff’s mutual obligations on June 14. The Record of Employment was filed electronically with Service Canada on June 19, 2019.

[102] Contrary to the plaintiff’s indication that Iuele had held her arms in the June 3 incident, de Boer testified that she was not told by the plaintiff at any time that Iuele had restrained her, and that if an employee had told her that they had been restrained physically by a supervisor there would have been an investigation. Such an event could have led to discipline or sanctioning.

Credibility

[103] The facts and incidents involved in this case as recounted by the plaintiff and defendant are diametrically opposed. Much of the evidence involved conversations between and among the various parties. Hence, there are significant credibility issues. However, there is also substantial written communication which must be considered.

[104] In assessing the credibility of the witnesses, I am cognizant of the principles of credibility as set forth in Kerr v. 2463103 Nova Scotia Ltd., 2014 NSSC 27, 339 N.S.R. (2d) 336, at para. 44, as well as the discussion regarding reliability. In assessing credibility, I have also kept in mind the following factors as set forth in Kerr: the motives of the witnesses to give the evidence as they do; the consistency of or inconsistency of the witness’ evidence over time; internal inconsistencies within a witness’ testimony; the presence of collaborative or supporting evidence; and the demeanour or manner of giving evidence, although with caution.

[105] In assessing the credibility of the witnesses, I have considered the above principles, including, inter alia, their affidavit and viva voce evidence, consistencies and inconsistencies therein, the written communications, internal notes and other documentary evidence.

Elizabeth Scull

[106] I found the plaintiff’s evidence to be problematic. Her testimony was not given in a straightforward, candid manner. She was defensive and obfuscated when answering questions. She attempted to avoid answering questions, the answers of which could be detrimental to her case; attempted to answer questions other than those asked; attempted to explain around or explain away evidence unhelpful to her; and engaged in “wordsmithing”, in an attempt to explain written communications or to attempt to explain away certain words and phrases which were unhelpful to her case.

[107] The answers she gave were inconsistent, and she changed her answers given in chief when cross-examined on her testimony.

[108] I was left in doubt as to the credibility and reliability of her evidence.

[109] Where her evidence differs from or is contradictory to that of others, I prefer their evidence, unless otherwise stated.

Franca Iuele

[110] I found Iuele’s evidence to be straightforward. She answered the questions in a straightforward manner and indicated when she did not remember something. She seemed to want to protect the plaintiff, to a certain extent.

[111] I found the evidence in her affidavit in chief, in cross-examination and re-examination to be reliable and credible.

David Harris

[112] I found Harris’ evidence to be straightforward, candid and precise. He answered all questions directly. He appeared knowledgeable regarding Ensemble Travel, its operation, policies and governance.

[113] I found his evidence to be credible and reliable.

Lisa de Boer

[114] I found that de Boer answered questions in a candid, straightforward manner. Her testimony was consistent. She conceded weaknesses in her evidence, such as not making notes of a conversation with the plaintiff which occurred when she was at home, tending to a sick child.

[115] I found her testimony to be reliable and credible.

The Issues

[116] The issues to be determined are as follows:

1. Was the plaintiff terminated without cause or did she resign?
2. If the plaintiff was terminated without cause, what damages are owing to her?
3. If damages are owing to the plaintiff, are exemplary damages warranted as well?

The Law

[117] Employers and employees enjoy mutual rights of termination of an employment contract at any time, provided that there are no express provisions to the contrary: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 75. In the context of an employment contract of indeterminate length, either party may resile from a contract unilaterally. Where the employee resiles from the contract, it is considered a resignation: see Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, at para. 23. In such a situation, where an employee voluntarily resigns, the employee is not entitled to bring an action for wrongful dismissal: see Gebreselassie v. VCR Active Media Ltd., 2007 ONSC 45710, at para. 42.

[118] Resignation must be clear and unequivocal, and must objectively reflect an intention to resign, or conduct evincing such an intention. Whether words or actions equate to resignation must be viewed contextually. The totality of the surrounding circumstances is relevant to determine whether a reasonable person, viewing the matter objectively, would have understood the employee to have resigned: see Gebreselassie, at para. 43.

[119] The resignation may be verbal, rather than written: see Gebreselassie, at para. 48. See also Gill v. A & D Precision Limited, 2010 ONSC 4646, 84 C.C.E.L. (3d) 294, at paras. 65-70, citing Kieran v. Ingram Micro Inc. (2004), 2004 ONCA 4852, 189 O.A.C. 58 (C.A.), at paras. 27, 30.

[120] An employee may also be found to have resigned from employment by repudiation of the employment contract with the employer: see Conway v. Griff Building Supplies Ltd., 2020 BCSC 1899, 68 C.C.E.L. (4th) 87. Repudiation occurs “when an employee refuses to perform an essential part of his or her duties in the future”. In such circumstances, “the employer is entitled to accept the repudiation and treat the employment relationship as terminated because the parties no longer agree on the fundamental terms of the contract”: Roden v. Toronto Humane Society (2005), 2005 ONCA 33578, 259 D.L.R. (4th) 89 (Ont. C.A.), at para. 46.

[121] The jurisprudence has long established that the giving of an ultimatum by an employee, by which the employee refuses to perform work unless certain conditions are met, is incompatible with their continued employment, and constitutes a resignation. “[W]hen the words or actions of the employee demonstrate a clear intent to resign, either unconditionally, or as part of an ultimatum, the courts have not hesitated to find that the employee quit”: Kerr, at para. 39 (citations omitted).

[122] I have also considered the other cases referenced by the parties in their closing written submissions, including: Billows v. Canarc Forest Products Ltd., 2003 BCSC 1352, 27 C.C.E.L. (3d) 188, at para. 58; Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933; Anderson v. Buffalo Airways Ltd., 2001 NWTSC 3; Pepper v. Lamb, 2022 ONSC 1378, at paras. 46-54; Larsen v. Airarms Fasteners & Industrial Ltd. (1999), 8 B.C.T.C. 286 (B.C.S.C.); Upcott v. Savaria Concord Lifts, 2009 ONSC 41348 (Ont. S.C.); Bishop v. Rexel Canada Electric Inc., 2016 BCSC 2351, [2017] CLLC para. 210-020; Johal v. Simmons da Silva LLP, 2016 ONSC 7835, [2017] CLLC para. 210-019; Nagpal v. IBM Canada Limited, 2019 ONSC 4547, 57 C.C.E.L. (4th) 303.

Analysis

[123] As indicated previously, the evidence of the plaintiff is diametrically opposed to that of the defendant.

[124] In this analysis, I have reviewed the affidavits and transcripts of all witnesses, the documents adduced at trial and have considered them in conjunction with the parties’ submissions and the case law.

1. Did the plaintiff resign or was she terminated?

[125] Based on all of the evidence, I do not find that the plaintiff was terminated. I find that she resigned.

[126] The plaintiff states that after the North American senior management meeting on June 3, 2022, she became upset with her boss, Iuele, raised her voice, made some unnecessary comments about the Destination Vows program being “a piece of shit” when she took it over from Iuele, made derogatory comments about a bilingual colleague and then left and went to her own office. Iuele came in to speak with her and she told Iuele that she was going home. She told Iuele that it was Iuele’s non-support of the team and “throwing them under the bus” that made her want to leave and resign. She stated that Iuele always took on more work for the Toronto office than the plaintiff thought they could handle.

[127] Her evidence was that the next day when she met with de Boer, the VP of HR, de Boer asked whether the plaintiff had stated to Iuele that she was resigning from Ensemble Travel. The plaintiff stated that she had said that she was resigning and she had meant what she said.

[128] Iuele stated that the plaintiff had wanted her responsibility regarding the Destination Vows program reduced, that she told Iuele that she had too many other obligations to continue with the Destination Vows program as well, and that Iuele told her not to worry, that others, including Iuele, would take responsibility for the program, at which point the plaintiff questioned Iuele’s ability to manage the project.

[129] Iuele stated that she attempted to calm the plaintiff down, but the plaintiff became more agitated, aggressive and confrontational. The plaintiff then left the office and did not return that day.

[130] While Iuele stated that she was not certain of the exact words the plaintiff had used, her comments regarding resignation left Iuele with the understanding and belief that the plaintiff had resigned.

[131] When de Boer, the Vice President of HR, attended at the Toronto offices on June 4 for previously scheduled meetings, she and Iuele, who had provided de Boer with her Incident Notes, reviewed the notes before de Boer met with the plaintiff. Iuele also advised her of the plaintiff’s statements regarding the resignation. De Boer met with the plaintiff and inquired as to whether she had said she was resigning, to which the plaintiff stated that she had said that and that she meant it.

[132] Given my assessment of credibility, as set forth above, I am satisfied that the plaintiff did indicate that she was going to resign and made that clear to those with whom she discussed the issues at Ensemble Travel.

[133] I accept de Boer’s evidence that, given the plaintiff’s statements about resignation, she encouraged the plaintiff to think about her decision for a couple of days and to think about a transition plan for the plaintiff to leave the company that would be respectful and fair to both the plaintiff and Ensemble Travel. They had agreed to speak on Friday of that week to finalize the matter.

[134] I accept that the plaintiff wrote an email to de Boer and Schmitt apologizing for the “resignation remark”. I do not accept her explanation, in cross-examination, that she meant by the resignation remark that they had misunderstood her remark to mean that she was resigning, when she was not. I note that her email went on to state that she had meant what she said at the time. The email continued making numerous derogatory comments about her boss, Iuele.

[135] While she stated that she never received any response from de Boer or Schmitt about her email, I do not accept this and I find that this is not correct. De Boer sent her a text message by the internal Ensemble Travel text platform called “Slack” on June 6, which was in evidence.

[136] I accept the testimony of de Boer as regards the teleconference she had with the plaintiff on June 11. The teleconference was to discuss a transition plan for the plaintiff’s leaving Ensemble Travel. I accept that the plaintiff gave de Boer and Ensemble Travel two options, namely that she would rescind her resignation and stay on in her position with a change in reporting structure so that she did not report to Iuele or she would leave and be provided with a severance package. I accept the evidence of the Ensemble Travel witnesses that a change in reporting structure would not be feasible, as the only persons other than Iuele to whom she could report would be Schmitt in New York City or the CEO in Toronto, which would not make business sense. As regards a severance package, because she had resigned, no severance would be payable at law.

[137] I note that the documentation produced in this action is consistent with the testimony of all the defendant’s witnesses. The witnesses were consistent in their viva voce testimony in chief and in cross-examination, and with the documentary evidence. As previously indicated, I found their evidence to be reliable and credible. In contrast, as previously indicated, I found the evidence of the plaintiff to be lacking in reliability and credibility.

[138] There seemed to be much resentment on the part of the plaintiff regarding her work and her boss, Iuele. She described herself and was described by others as someone who preferred to work alone, not a team player, wanting to be in charge or control and someone who was not comfortable with change. She felt she did not receive the attention she wanted from the leadership in order to feel appreciated. When she went to speak with Harris on June 10, she stated that she had wanted to test him to see if he would raise the June 3 issue, but he did not. She interpreted this to mean that he did not want “to hear her side of the story”, not that he was not aware of the situation, which latter, based on the evidence, was the case. She appeared to be somewhat overly sensitive, insecure and to need the attention of the leadership and others.

[139] As previously indicated, I find that the plaintiff resigned from her position with Ensemble Travel. I base this on the reasons already reviewed in the Analysis section of this decision, as well as the factual matrix, context and totality of the surrounding circumstances, as follows:

1. The plaintiff indicated to her boss, Iuele, that she was leaving on June 3;
2. The plaintiff told at least two colleagues that she was leaving Ensemble Travel. She texted or emailed one colleague that she had walked off the job, and another colleague that she had had an argument with [Iuele] and walked out;
3. The plaintiff confirmed her resignation on June 4 in a meeting with de Boer, the VP of HR, and stated that she meant what she had said;
4. De Boer told her that Ensemble Travel would accept her resignation, but urged her to think about her decision for a couple of days. She also told her to think about a transition plan to exit the company that would be good for the plaintiff and for Ensemble Travel, and they would meet again that week;
5. In that meeting, the plaintiff advised de Boer that her resignation was not “spur of the moment”, and that she had been unhappy with her employment and had been thinking about leaving for some time, that her leaving was “overdue in [her] mind”, that she had been looking for another job and was sitting on a couple of offers. She stated that she felt she could make more money outside Ensemble Travel. She also agreed that she and de Boer would formulate a transition plan. I accept that evidence;
6. The plaintiff cleaned out her office, throwing away significant amounts of materials. While she said this was because she had been asked to move as a new HR Manager had been hired, she finally conceded in cross-examination that she was not told to do so. According to the evidence, she further stated that she had known the previous co-president, Pearlman, was resigning when he cleaned out his office;
7. The plaintiff told a friend who had, for a birthday gag, filled her cupboards and drawers with cut out paper hands with the middle finger raised, that she was cleaning out her cupboards and ensuring that she found all of the cut out hands;
8. On June 5, 2019, the plaintiff sent an email to de Boer and Schmitt apologizing “for walking out and [her] resignation remark”, but stating that she had “meant the things [she] said at the time”;
9. On June 6, the plaintiff failed to fulfil her job responsibilities by failing to attend a seminar to which Ensemble Travel had made arrangements to send her, without advising her boss. While she stated that she did not attend because she had vertigo, she had already advised a colleague previously that morning that she did not intend to go to the seminar;
10. When the plaintiff and de Boer had their teleconference meeting on June 11, the plaintiff told de Boer that Ensemble Travel had two choices: the plaintiff would rescind her resignation if her reporting structure were changed, such that she did not report to Iuele, or she would leave and Ensemble Travel would provide her with a severance package. De Boer described this as “an ultimatum”; and
11. She became angry when her demands were not met and hung up on de Boer.

[140] Based on all of the foregoing, I am satisfied that from June 3 to June 11, the above statements and conduct of the plaintiff expressed her clear intention to resign. I am satisfied that a reasonable person viewing the matter objectively would have understood the plaintiff to have resigned based on all of the foregoing statements and conduct.

[141] Further, following the resignation by the plaintiff and acceptance thereof by Ensemble Travel, Ensemble Travel paid the plaintiff her wages owing and accrued vacation pay, and explained the calculations thereof to her. I do not find there to be any additional salary or vacation pay owing.

[142] In conclusion, I find that the plaintiff did resign from her position at Ensemble Travel. As a result, no damages are owing to the plaintiff.

[143] Based on the evidence adduced in this trial, it can also be found that the plaintiff resigned as a result of the ultimatum which she gave to the defendant, de Boer, on June 11. That is to say that she would rescind her resignation and come back to work, but only on the condition that her reporting relationship be changed, which was not a part of her initial terms of employment, or she would leave but demand a severance package. However, I need not go into detail in this regard as I have already found that the plaintiff clearly intended to and did resign based on her words and her actions between June 3 to June 11.

2./3. Damages

[144] Based on the foregoing, no damages or exemplary damages are owing to the plaintiff.

Costs

[145] I strongly urge the parties to come to an agreement as regards the costs of this trial. In the event that they are unable to arrive at an agreement, they may submit their bills of costs of no more than three pages in length within 60 days of the release of this decision.

C.J. Brown J.

Released: January 26, 2023