FAQ's Cases - Stewart McKelvey

The Labour Relations BoardSaskatchewanSASKATCHEWAN JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STOREUNION, Applicant v. SAKUNDIAK EQUIPMENT, a DIVISION OF WGI WESTMAN GROUP,RespondentLRB File Nos. 107-11, 108-11, 109-11, 128-11, 129-11, 130-11, 131-11, 132-11 & 133-11;November 16, 2011Chairperson, Kenneth G. Love, Q.C.; Members: Greg Trew and John McCormickFor the Applicant Union:For the Respondent Employer:Mr. Larry KowalchukMr. Brian Kenny, Q.C. and Ms. Courtney Keith2011 CanLII 72774 (SK LRB)Practice and Procedure – Union argues that Employer should have called awitness who could have provided valuable testimony on matters inquestion – Employer argues that it was unnecessary to call witness as allrelevant matters testified to by other employees – Union argues Boardshould draw an adverse inference from fact that witness was not called.Practice and Procedure – Board reviews principle enunciated by the Courtsof Saskatchewan and recent jurisprudence from the Supreme Court ofCanada – Board declines to draw adverse inference.Unfair Labour Practice – Section 11(1)(e) of Act - Union seeksreinstatement of one employee permanently laid off during organizing drivein workplace - Employer argues that lay off unrelated to organizingactivities and decision to terminate employee made prior to Employer’sknowledge of organizing drive – Board reviews Employer’s explanation forlay off of employees.Unfair Labour Practice – Board reviews jurisprudence respecting reverseonus found in s. 11(1)(e) of Act – Finds explanation of Employer bothcoherent and credible – Board finds no anti-union animus in Employeractions.Unfair Labour Practice – Section 11(1)(a) of the Act – Board considersevidence of “tool box” meetings held by Employer with staff subsequent tosome of the permanent lay offs and just prior to final two employees beingpermanently laid off – Considers amendments to s. 11(1)(a).Board finds that the test to be applied under the amended provisionremains an objective test, that is likely effect of communication on anemployee of average intelligence and fortitude – Board findscommunication with employees satisfied this objective criteria.The Trade Union Act, ss. 11(1)(a) & (e).

2Background:REASONS FOR DECISION[1] Kenneth G. Love, Chairperson: Saskatchewan Joint Board, Retail, Wholesaleand Department Store Union (the “Union”) applied to the Saskatchewan Labour Relations Board(the “Board”) on June 30, 2011 alleging that Sakundiak Equipment, a Division of WGI WestmanGroup, (the “Employer) had contravened sections 11(1)(a) and (e) of The Trade Union Act,R.S.S. 1878, c.T-17 (the “Act”). The Union also applied on that same date for reinstatement ofan employee, Dusty Copeland, as well as monetary loss suffered by Mr. Copeland resultantfrom his lay off. On August 12, 2011, with leave of the Board, the Union applied for similarrelief with respect to two other employees. During the course of the hearing, the Board wasadvised that reinstatement was no longer sought for Mr. Copeland, or another employee, Mr. HaPhan, although monetary loss was continuing to be pursued with respect to all three employees.2011 CanLII 72774 (SK LRB)[2] The Union was granted interim relief with respect to this matter by a decision ofthe Board dated August 8, 2011, with respect to Mr. Copeland. The Board commenced hearingthe application with respect to all of the employees on August 23, 2011 and continued with thehearing on October 12, 2011.Facts:[3] The Employer is a farm equipment manufacturer. The Employer manufacturesvarious types of farm equipment including grain bins, grain augers and grain bin accessories atits Regina facility. It sells the equipment it manufactures through a network of dealers, who inturn sell those products to farmers for use in their farming operations.[4] Mr. Victor Holodryga, the Vice-President and General Manager of the Employerwas called to testify on behalf of the Employer. He testified that the Employer had purchasedSakundiak about two and a half years ago and he was named as Vice-President and GeneralManager. Sakundiak Equipment is a part of the WGI Westman Group which also includesBehlen Manufacturing.[5] Mr. Holodryga testified that the Employer had other manufacturing plants inManitoba, Alberta and British Columbia. He testified that of these plants, they operated with a

3unionized workforce at their plants in Airdre, Alberta, Langley, British Columbia, Brandon,Manitoba and Winnipeg, Manitoba.[6] Mr. Holodryga testified that one of his primary functions was to look after themanufacturing of the goods they manufactured in Regina. It was his responsibility to establishthe manufacturing budget based on sales projections provided to him by the marketingdepartment, to then look after the production of the goods necessary to fulfill the sales andmarketing plan, and to adjust manpower as necessary for that purpose.[7] He testified that 2010 had been a particularly wet year which resulted in slowsales of equipment during that year. He further testified that they did not achieve the saleswhich they had forecast for 2010. As a result, the company developed a winter sales incentiveprogram so as to get dealers to commit orders for the coming year so as to allow them to betterplan their production and inventory levels.2011 CanLII 72774 (SK LRB)[8] This winter sales program allowed dealers to order goods at significant discountsif orders were placed prior to February, 2011. It also provided generous financing terms fororders placed during this promotion. Based upon the success of the winter booking program,he testified that the sales projections required that the Employer increase its workforce.[9] Also during this period, the Employer made improvements to the manufacturingfacility and equipment used to manufacture the goods which were manufactured in Regina. Mr.Holodryga testified that when the business was purchased from the previous owners, thebusiness was a “family owned” business. He testified that the equipment was outdated andneeded replacement. In particular, he noted that there was a need for a paint facility. TheEmployer ultimately spent around 14 Million dollars to upgrade the production facility.[10] In March of 2011, Mr. Holodryga testified that there were good sales from thewinter booking program. The finished goods inventory was in line with projections, so, hetestified, that they began to hire additional employees to meet the sales projections for 2011. Itwas during this staffing up period that most of the employees impacted by this application werehired.

4[11] To track production, Mr. Holodryga testified that he reviewed actual sales ofgoods to determine what goods, which had been ordered, still needed to be produced, whatgoods were currently in inventory (i.e.: not shipped to customers) and what the Employer hadfor goods on hand for which there were no outstanding orders (the “finished goods inventory”).This finished goods inventory was the primary indicator for him as to whether production wasoutstripping sales or whether or not additional goods manufacturing was required to meetexisting sales.[12] He testified that the finished goods inventory started to rise in April and did notdecline as the year progressed. He further testified that this was unusual in this business,testifying that finished goods inventories normally did not rise until October in a normal year.From figures provided by Mr. Holodryga, the following were the finished goods inventories forJanuary to July of 2011:2011 CanLII 72774 (SK LRB)MonthFinished Goods InventoryJan. $1,539,427Feb. $ 156,886Mar. $ 824,779Apr. $1,277,615May $2,180,607June $3,017,810July $4,085,635[13] He testified that he was concerned when the finished goods inventories rose inApril. He testified when the value of the finished goods inventory almost doubled in May, thathe knew that the Employer needed to reduce its manufacturing of goods, this meant a reductionin the number of employees employed to produce those goods, principally in the grain augerarea as that was the area of weak sales.[14] Mr. Holodryga testified that a decision was taken to reduce the workforce andthereby reduce manufacturing goods. However, no steps to reduce the workforce were taken atthat time, he testified, because the Employer was participating in the Farm Progress Show inRegina from June 15 to 17, 2011. In addition, the Employer had planned, in conjunction withthe Farm Progress Show, a Plant Celebration on June 14, 2011 to showcase the improvementsmade to their manufacturing facility. As a result, it was determined to not make any layoffs untilafter the completion of the Farm Progress Show and the Plant Opening Celebration.

5[15] In addition, there was some hope that the Farm Progress Show would stimulatedemand for their goods. Unfortunately, no orders were achieved at the show for grain augers,although there was an order achieved for grain bins.[16] Mr. Paul Guillet, the Administrative Co-ordinator for the Union testified that GaryBurkart met with Mr. Copeland to discuss a certification drive at the Employer on June 15, 2011.He testified that he had known Mr. Copeland for many years as he had previously been amember of the Union while employed with a different employer. Following that meeting, hetestified that he met with a larger group of employees on June 19, 2011 to discuss initiating acertification drive at the Employer’s facility in Regina.2011 CanLII 72774 (SK LRB)[17] It was not clear when the organizing drive at the Employer’s facility in Reginacommenced. However, Mr. Holodryga testified that on June 21, 2011, three employeesapproached him when he arrived at the workplace at 6:00 AM, expressing concerns that theyhad been asked to sign a union card. He testified that he advised these employees that hecould not provide them with any direction and it was something that they would have to decidefor themselves.[18] Mr. Holodryga also testified that the Production Manager advised him on June21, 2011 that a production foreman had also been approached about signing a union card.[19] He testified that following these incidents, he consulted with the Employer’s legalcounsel in Manitoba as well as the Employer’s Human Resources Department in Winnipeg.Following those conversations, he called a meeting with Ms. Outerbridge and other members ofhis management team. He testified that the message he delivered to the management teamwas that there were rumours regarding a possible union organizing campaign. He testified thathis instructions were that they were to stay neutral and not interfere, and if approached byemployees they were to refer those employees to either himself or to Ms. Outerbridge.[20] On June 22, 2011, another conference call was held with corporate legal counseland the Director of Human Resources in Winnipeg and Mr. Sean Lepper, who was the Vice-President and Marketing Director for Sakundiak and Behlen. Mr. Holodryga testified that thepurpose of the call was to determine if there were any issues in proceeding with the planned

6layoffs in light of the information which they had concerning the organizing efforts which wereunderway.[21] Mr. Holodryga testified that the result of that conference call was that they wouldconduct “business as usual” and proceed with the planned layoffs. He testified as well, that itwas left to Ms. Outerbridge and Mr. Riddock, the Plant Superintendent, to determine whichspecific employees would be subject to layoff. Mr. Holodryga testified that he took no part indetermining which employees would be subject to lay off.[22] Ms. Outerbridge testified that based on production estimates for 2011, theEmployer had hired over a dozen new employees in 2011. She testified that she was advisedby Mr. Holodryga and Mr. Riddock in May, 2011, that they would have to cut back their workforce due to lack of orders for finished goods. She testified that it was communicated to her thatfollowing the Farm Progress Show that they would have to initiate lay offs.2011 CanLII 72774 (SK LRB)[23] She testified that following the Farm Progress Show and the conference call onJune 22, 2011, that she and Mr. Riddock reviewed a list of persons hired since January, 2011 toselect those who would be laid off. She testified that they discussed each employeeindividually. She also testified that the only production area impacted was the grain augermanufacturing area. No one was selected for lay off in the grain bin production area of the plantas they had achieved sales at the Farm Progress Show for grain bins.[24] She identified the six laid off employees as being Robin Kinequon, Ha Phan,Gord Polsom, Nat Dunbar, Dusty Copeland and Charlie Racz. The reasons for selection ofthese employees was given as follows 1 :Employee “A”: He was on his probationary period, he had attendance issuesand his department was overstaffed.Employee “B”: He had attendance issues; which were magnified the week ofJune 20 wherein he was absent on the 20 th and 21 st without notice to hissupervisor or the Production Manager, Doug Riddock.Employee “C”: He was on his probationary period, showed little motivation whileperforming tasks and his department was overstaffed. He also refused to worknight shifts when asked by his supervisor.1 To preserve the privacy and anonymity of the impacted employees, we have deleted the names associated witheach comment

7Employee “D”: He was on his probationary period and his department was nolonger in need of additional assembly workers.Employee “E”: He was a junior operator, so we still had a senior operator with20 years experience to keep the machine going.Employee “F”: He was on his probationary period, and had attendance andperformance issues.[25] Following the discussion to identify the employees who would be laid off, Ms.Outerbridge testified that she then prepared lay off letters for each of the chosen employees.To prepare these letters she testified she used a standard template. The lay off letters wereprepared by her for Mr. Holodryga’s signature.2011 CanLII 72774 (SK LRB)[26] That afternoon (June 22, 2011), four employees were asked to come to DougRiddock’s office where Mr. Riddock and Ms. Outerbridge advised them of their permanent layoff. Only four employees were terminated that day, according to Ms. Outerbridge’s testimonybecause one of the employees who was to be laid off, Mr. Dunbar, was away that afternoon at adental appointment and as a result, they determined to withhold the lay off of one of the otheremployees, Mr. Phan, until Mr. Dunbar had returned to work.[27] Ms. Outerbridge testified that the lay off of Mr. Dunbar and Mr. Phan was to haveoccurred on June 23, 2011. She testified, however, that Mr. Riddock was in meetings and couldnot be found by her. As a result, she redid the lay off letters for Mr. Dunbar and Mr. Phan forthe following day.[28] Mr. Lepper visited the Regina plant on June 24, 2011. The evidence disclosedthat he was a frequent visitor to the plant, but his visits were not on a regular schedule. Duringhis visit, Ms. Outerbridge testified that Mr. Lepper participated with her in a series of four “toolbox” meetings with employees.[29] The Agenda for those meetings was hand written by Mr. Lepper. She wasunable to provide a copy of the agenda which he prepared. However, she did produce Minuteswhich she took at the meetings.

8[30] Ms. Outerbridge testified that the purpose of the meetings was to get feedbackfrom the employees which the Employer could use going forward. She testified that during themeetings her Minutes disclosed some significant issues having been discussed at these toolbox meetings.[31] The first item on her notes deals with “Organizational Structure” accompanied bya note; “Doug is to set up a meeting with the ‘Team Leaders’ and discuss the four supervisorstructure we’re moving forward with, as well as explain this decision is not and was notperformance based and that they are still go-to people for the supervisors”.[32] Another note under the heading “Communication” involves an EmployeeAssociation which her notes identified as; “will help communicate the everyday issues occurringon the front line”. Similarly under that heading are notes concerning “Conflict Resolution,Respectful Behaviour, Respecting Coffee and Lunch Breaks, Performance Evaluations, andHealth and Safety Updates”.2011 CanLII 72774 (SK LRB)[33] Under the heading “Continuous Improvement” there are notes concerning theadministration of overtime “equally without favourites”, implementation of weekly overtime signupsheets, overtime being awarded on “seniority and then by skill”. There were notesconcerning Physical Improvements, including “clocks, floor mats, more garbage cans, tools,fans, etc…” as well as comments concerning coveralls provided for employees.[34] Under the heading “Training and Development” there were notes respectingemployee product knowledge sessions, cross training of employees based on “their interest andexperience” and such items as English classes, cultural programs, etc.[35] Under the heading “Pay Scale Structure” were notes respecting a need toevaluate “current wages and quantify increases that need to or should happen”, “overhaul theexisting structure: by job description, training opportunities, dept.” and “formalizing pre-Employment testing”.[36] The final note was with respect to the Employee Newsletter which her notessuggested should be “light and family oriented”.

9[37] The Board did not have the benefit of Ms. Outerbridge’s direct testimonyconcerning these notes as they were tendered as an Exhibit at the commencement of theUnion’s case, by agreement of the parties. Ms. Outerbridge did provide some direct testimonywith respect to the meetings she attended, which testimony was subject to cross-examination byUnion counsel. It was during her cross-examination that it was discovered that she had notesfrom the meetings which she was asked to produce, which the Employer undertook to do.[38] During cross-examination of Ms. Outerbridge, she was challenged with respect tothe use of the term “permanent lay off” used in the letters to the laid off employees. Sheexplained the term was utilized because the Employer had no reasonable expectation that theemployees might be recalled to work. However, she testified that she advised all of the laid offemployees to “keep in touch in case the situation changes”.2011 CanLII 72774 (SK LRB)[39] She testified on cross examination that the “tool box’ meetings on June 24, 2011had been suggested by Mr. Lepper on June 23, 2011. She also testified that these meetingswere the first such meetings which had ever been held at Sakundiak. She testified that themeetings were “confidential” in that no employee names would be attached to any of thefeedback received by the Employer so that employees could speak freely in the meetings.[40] With respect to the “Employee Association”, she testified that this was an ideaput forward by Mr. Lepper for discussion. In the proposal, each department would nominate arepresentative. She likened the proposal to being similar to an Occupational and HealthCommittee structure, but with a smaller group of people.[41] In her cross examination, she confirmed that it was she and Mr. Riddock whodetermined which employees would be laid off and that Mr. Holodryga did not participate in thatdecision. The decision on lay offs was made only following the conference call on June 22,2011. She testified that she had no knowledge of any particular employee’s union involvement.She advised that only newly hired employees were considered for lay off. She also confirmedthe factors that were considered with respect to those employees were (a) the employee’s rateof pay, (b) the employee’s attendance record and (c) the employee’s job performance.

10[42] She testified that, while she had no personal knowledge regarding jobperformance, she was satisfied that Mr. Riddock was qualified, based upon the amount of timehe spent on the shop floor, to make that determination.[43] She testified that she utilized the procedures utilized at their sister operation,Behlen, for lay offs because Sakundiak had not been involved in any lay offs since the Employerhad taken over the facility.[44] She testified that at the meetings on June 24, 2011 there was anacknowledgment that there had been layoffs on June 22, 2011. In particular, she testified thatMr. Dunbar asked a question respecting non-working notice given to those employees whowere laid off, which question was answered by Mr. Lepper, stating that it was company policynot to give working notice.2011 CanLII 72774 (SK LRB)[45] In addition to Mr. Guillet, both Mr. Copeland and Mr. Dunbar testified on behalf ofthe Union. Mr. Copeland testified that he commenced employment with Sakundiak on February14, 2011. He was hired as a welder, but loaded trucks for about a month following his hiring.During that time he also assembled grain augers and helped out as needed.[46] After about a month, he testified that he went to work on the “old flight machine”.This machine was the machine that had been used to manufacture the flighting used within thegrain augers and which had been acquired by Sakundiak from the former owners. Shortly aftercommencing work on the “old flight machine”, Mr. Copeland testified that he began to work onthe “new flight machine” which was installed as a part of the upgrades to the production facilityby the Employer.[47] Mr. Copeland testified that he became proficient in the operation of the “newflight machine” and became its primary operator, replacing the operator that had helped trainhim. He testified that most of his training was on the job and that he received training from theprevious operator for one day and then had training from a representative of the company whichsupplied the “new flight machine” for four and a half days. He then testified that Mr. Holodrygaapproached him about being the primary operator of the flight machine. In his testimony, Mr.Holodryga denied having made any such comment.

11[48] Shortly after Mr. Copeland began operating the “new flight machine”, theEmployer scheduled an afternoon shift. The former flight machine operator was transferred towork on the afternoon shift.[49] Mr. Copeland testified that he met and talked to Gary Burkart of the Union andsigned a union card about a week and a half before he was terminated on June 22, 2011. Thisevidence was supported by the testimony of Mr. Guillet, who testified that the initial meetingoccurred on June 15, 2011.[50] However, Mr. Copeland testified that following that meeting, he decided that hewould attempt to assist with the union drive in the workplace. He testified that he made calls toothers to see if there was interest in forming a union in the workplace. He testified that hetalked to other employees at coffee breaks in the workplace and in the parking lot after work.2011 CanLII 72774 (SK LRB)[51] This evidence was somewhat at odds with the evidence given by Mr. Guilletinsofar as the organizing campaign did not, from his testimony, commence until after themeeting at the Union office on Sunday, June 19, 2011. During his testimony, Mr. Copeland wasextremely vague as to the timelines regarding the organization campaign.[52] Mr. Copeland also testified that while he was talking to an employee in theemployee’s car in the parking lot, Mr. Holodryga came out of the building and walked towardsthe parking lot. He testified that he believed that Mr. Holodryga had seen him obtaining a unionsupport card. Mr. Holodryga denied having seen Mr. Copeland in the parking lot as suggestedby him.[53] He also testified that prior to the day of his lay off, he went to the offices of theOccupational Health and Safety Department of the Ministry of Labour Relations and WorkplaceSafety to report to them regarding safety issues which he observed in the workplace. NeitherMr. Holodryga nor Ms. Outerbridge had any knowledge of any such contact. This was unusualas Ms. Outerbridge was the Health and Safety Coordinator for the Employer and should havebeen contacted by the Ministry concerning any such contact.[54] Mr. Copeland had also filed an Affidavit with respect to the Union’s application foran interim Order for the purpose of restoring himself and others to their positions pending the

12hearing of these applications. In several instances during cross examination, he acknowledgedthat there were mis-statements in his Affidavit.[55] The Union also called Nat Dunbar to testify. He commenced work with theEmployer as a general labourer on April 11, 2011. After orientation, and following about a weekwhere he was assembling tools, he began working on the assembly of grain augers.[56] He claimed that his direct supervisor, Mr. Mike Mason had told him on the day hewas laid off (June 24 th ) that he would be scheduled for forklift or crane training the followingTuesday. In her testimony, Ms. Outerbridge questioned this insofar as all training was arrangedthrough her and she was not aware of any training being scheduled.2011 CanLII 72774 (SK LRB)[57] In his testimony, he testified that at the “tool box” meeting he attended, Mr.Lepper made no mention of the formation of an Employee’s Association. He also testified thathe did not recall any mention of cross-training or wage rates at the “tool box” meeting, buttestified that profit sharing was discussed. He also confirmed that he asked a questionrespecting non-working notice given to those employees who were laid off.[58] With respect to the organizing campaign, he says he spoke to three employeeson Monday and Tuesday (June 20 & 21, 2011), two in the lunchroom and one in the parking lot.He testified that he didn’t know if anyone saw him speaking to other employees.Arguments of the Parties:Employer’s Argument[59] Counsel for the Employer provided the Board with a written argument and caseauthorities which we have reviewed and found helpful.[60] The Employer argued that the purpose of Section 11(1)(e) was to ensure thatEmployers do not use disciplinary sanctions to discourage employees from the exercise of theirright of association under the Act. 2 They argued that in the application of the reverse onusprovision contained in s. 11(1)(e), the Board has used a two part analysis. In the first part of thetest, the Board determines whether the Employer has presented a plausible or coherent and2 SGEU v. Regina Native Youth and Community Services Inc., [1995] S.LR.B.D. No 4 at p. 4 (QL)

13credible reason for the discipline or lay off. The second part of the test is whether or not,despite having a credible reason, it can be established that the decision was accompanied byan anti-union animus. In support of this position, the Employer cited several cases. 3[61] The Employer argued that the Board should not consider if the Employer had“just cause” as that term is understood by arbitrators 4 . They also argued that s. 11(1)(e) doesnot preclude an employer from terminating or laying off employees who are exercising theirrights under the Act for economic or business reasons. 5[62] The Employer argued that while the onus placed upon the Employer in s.11(1)(e) was difficult to meet, it was not impossible to meet. 6 With respect to the onus on theEmployer in s. 11(1)(e), the Employer acknowledged that in circumstances when the reverseonus applies, it is not always sufficient for the employer to prove that an employee was laid offfor lack of work. When there is a choice as to who will be laid off, the employer must go furtherand explain why it chose to lay off one employee and not another. 72011 CanLII 72774 (SK LRB)[63] The Employer argued that the Board has, in numerous decisions, concluded thata layoff coincidental to an organizing campaign, newly established bargaining relationship orother union activity did not constitute an unfair labour practice. 8[64] The Employer argued that it had “good and sufficient” reason for laying off theemployees due to economic conditions and sales shortfalls. They argued that there was noevidence of “anti-union” animus. Nor, it submits, was there any evidence to show that theEmployer was aware of the support for the union or participation by any of the laid offemployees in the organizing drive.3 RWDSU v. Regina Exhibition Association Limited, [1995] 3 rd Qu. Sask. Labour Rep. 37; Patrick Monaghan andDelta Catalytic Industrial Services and Saskferco Products Inc., [1996] S.L.R.B.D. No. 28.4 See RWDSU v. Regina Exhibition Association Limited, supra at 625 Elaine Warne et al. v. Regina Exhibition Association Ltd., [1996] Sask. L.R.B.R. 5.6 See RWDSU v. Regina Exhibition Association Ltd., supra, Note 2; C.U.P.E., Local 4973 v. Welfare Rights Centre[2011] S.L.R.B.D. No. 37 United Steelworkers of America v. Brandt Industries Ltd., [1991] S.L.R.B.D. No. 128 Patrick Monaghan v. Delta Catalytic Industrial Services and Saskferco Products Inc., supra Note 2; C.U.P.E. v.Board of Education of the Kamsack School Division No. 35 of Saskatchewan, [2001] S.L.R.B.D. No. 43; PeterRadoja, Sandie Evans and Colleen Thuen v. Develcon Electronics Ltd., [1985] October Sask. Labour Rep. 62;RWDSU v. Off The Wall Productions Ltd., [2000] S.L.R.B.D. No. 13; International Union of Operating Engineers,Hoisting Portable & Stationary and Points North Services Ltd. and Points North Construction Ltd., [[1995] S.L.R.B.D.No. 59; and Shopmen’s Local Union No. 838 of the International Association of Bridge, Structural and OrnamentalIron Workers and Metal Fabricating Services Ltd., [1990] Spring Sask. Labour Rep. 70.

14[65] With respect to the Union’s application under s. 11(1)(a), the Employer noted thatthe provision had recently been amended by the legislation, which amendment, it submitted,was intended to broaden the scope of permissible Employer communication.[66] The Employer started with the premise that an employer is entitled tocommunicate with its employees 9 . It then noted that the Board had expressly rejected theargument that an amendment to the section in 1994 was meant to prohibit all communication byan Employer with its employees concerning matters which are the subject of collectivebargaining. 10[67] The Employer noted that the Board’s test under the Act prior to the amendmentin 2008 was an “objective” test wherein the Board assessed the impact which a particularcommunication would have on an employee of “reasonable fortitude” or an “employee ofaverage intelligence and fortitude”. 112011 CanLII 72774 (SK LRB)[68] The Employer also argued that decisions from other Labour Relations Boards inCanada which had similar provisions in their Trade Union Legislation should be considered bythe Board in its analysis of the amended provisions of the Act.[69] The Employer argued that even in the context of an organizing campaign, the“tool box” meetings conducted by Mr. Lepper did not cross the line with respect tocommunications with employees such that the Employer committed an unfair labour practice. Insupport of that position, the Employer cited cases from Newfoundland and British Columbia. 12[70] The Employer argued that Mr. Holodryga and Ms. Outerbridge went out of theirway to stress to the management team that they were to remain neutral in the face of theorganizing drive.[71] On the issue of remedy, the Employer argued that certain remedies sought bythe Union were overreaching and were not in accord with the Board’s approach to remedies as9 RWDSU v. Canadian Linen Supply Limited, [1991] 1 st Quarter Sask. Labour Rep. 63.10 RWDSU v. Macdonalds Consolidated, [1995] S.L.R.B.D. No. 5011 RWDSU v. Saskatchewan Centre of the Arts, [1996] L.R.B.R. 67; See also RWDSU v. Dairy Producers CooperativeLimited, [1990] Winter Sask. Labour Rep. 75.12 Griffiths Guitars International Ltd. (Re) [2004] N.L.L.R.B.D. No 6; Ed Klassen Pontiac Buick GMC (1994) Ltd. v.Teamsters Local Union No. 213, [1995] B.C.L.R.B.D. No. 225.

15outlined by the Board in RWDSU v. Loraas Disposal Services Ltd. et al. 13 In particular, itargued, that the request by the Union for captive audience meetings was not appropriate andthe circumstances of the case do not warrant such a remedy.[72] It also argued that it would be inappropriate and the circumstances do notwarrant an Order that the Employer provide the names, phone numbers and home address ofeach of its employees to the Union.Union Argument[73] The Union argued that the Board should draw a negative inference from the factthat Mr. Lepper, who was available to be called as a witness, was not called by the Employer totestify with respect to his participation in the “tool box” meetings. The Union relied upon thedecision in Murray v. City of Saskatoon (No. 2) 14 with respect to this argument.2011 CanLII 72774 (SK LRB)[74] The Union made reference as well to comments contained within the written Briefof the Employer, which the Union argued were presented as facts without any evidentiary basis.These were comments concerning the actions taken by Mr. Lepper in respect to his visit toRegina and the matters discussed at the “tool box” meetings.[75] The Union argued that absent evidence from Mr. Lepper, the Employer wasunable to satisfy the onus of proof required by s. 11(1)(e). The Union also argued that Mr.Lepper was the senior person involved in the lay off decisions and the Board should have heardevidence from him.[76] The Union further argued that there was no evidence that there was not an antiunionanimus with respect to the lay offs. The Union asserted that s. 11(1)(e) cast the onusupon the Employer to prove that there was no anti-union animus, which it had not done.[77] The Union suggested that the evidence of adverse economic conditions was notbelievable or that it did not make sense. It argued that the comparable figures for 2010 to thefigures provided by Mr. Holodryga for 2011 (see paragraph 12 above) showed a similar13 [1998] Sask. L.R.B.R. 556 at 568.14 1951, 4 W.W.R. (N.S.) 234 @ p. 240

16production and inventory levels. They argued that there was no evidence of lay offs in 2010which the Union argued showed similar inventory levels.[78] The Union argued that the lay off of the employees without working notice wassuspicious, insofar as the Employer could have had additional output from these employeesduring a working notice period. They argued that this showed an eagerness on the part of theEmployer to “get them out of the workplace”. The Union was suspicious that the Employerdidn’t want the additional production from these employees and that they were “giving awaymoney”.[79] The Union argued that the layoffs were “sudden”, presumably in response to theorganizing campaign which the Employer was aware of prior to the lay offs. Furthermore, theyargued that the holding of the “tool box” meetings, which it characterized as “captive audiencemeetings” was to propose to the employees that they form an employee association instead ofjoining the Union. They argued that this point was highlighted when Mr. Dunbar attended hismeeting and the matter of an employee association was, according to the testimony provided byMr. Dunbar, not discussed.2011 CanLII 72774 (SK LRB)[80] The Union also questioned why Mr. Mason, who was the direct supervisor ofmany of the employees, was not called to testify. Nor, they argued, was he involved in thediscussion of which employees to lay off. He argued that Mr. Copeland and Mr. Dunbarparticularly were excellent employees who should not have been laid off. The Union arguedthat to lay these employees off went against common sense and logic.[81] The Union suggested that in its analysis of s. 11(1)(a), the Board should do athorough analysis of the section in accordance with the rules of statutory interpretation andanswer some questions which the Union felt were a problem with the wording of the section. Inaddition, the Union proposed the Board should use a more subjective test with respect to howthe communication might impact employees.[82] The Union summarized its requested relief as follows:1. Reinstatement of Nat Dunbar,2. Monetary relief with respect to Nat Dunbar, Dusty Copeland and Ha Phan,

173. Order for captive audience meetings as set out in the Application; and4. An automatic certification of the Union in the workplace, although the Unionacknowledged that the Board has previously determined that it had nojurisdiction to make such an Order;[83] The Union and the Employer agreed that the decision of the Board need not dealwith any issue of monetary loss which could be left to the parties to resolve should the Boarddetermine that monetary loss was appropriate.Relevant Statutory Provisions:[84] Sections 11(1)(a) and (e) provide as follows:2011 CanLII 72774 (SK LRB)11(1) It shall be an unfair labour practice for an employer, employer's agent orany other person acting on behalf of the employer:(a) in any manner, including by communication, to interfere with,restrain, intimidate, threaten or coerce an employee in the exercise ofany right conferred by this Act; but nothing in this Act precludes anemployer from communicating facts and its opinions to its employees;. . .(e) to discriminate in regard to hiring or tenure of employment or anyterm or condition of employment or to use coercion or intimidation of anykind, including discharge or suspension or threat of discharge orsuspension of an employee, with a view to encouraging or discouragingmembership in or activity in or for or selection of a labour organization orparticipation of any kind in an proceeding under this Act, and if anemployer or an employer’s agent discharges or suspends an employeefrom his employment and it is shown to the satisfaction of the board thatemployees of the employer or any of them had exercised or wereexercising or attempting to exercise a right under this Act, there shall bea presumption in favour of the employee that he was discharged orsuspended contrary to this Act, and the burden of proof that theemployee was discharged or suspended for good and sufficient reasonsshall be upon the employer; but nothing in this Act precludes anemployer from making an agreement with a trade union to require as acondition of employment membership in or maintenance of membershipin the trade union or the selection of employees by or with the advice of atrade union or any other condition in regard to employment, if the tradeunion has been designated or selected by a majority of employees in anysuch unit as their representative for the purpose of bargainingcollectively;

18Analysis and Decision:Should the Board draw an inference from the fact that Mr. Lepper was not called to testify?[85] Counsel for the Union argued that the Board should draw an inference that theevidence of Mr. Lepper would not have supported the Employer’s case due to its failure to callhim to testify. In his argument, he referred to Mr. Lepper as a “phantom” who was involved inthe decisions, but failed to testify as to his role. From that, counsel for the Union invited theBoard to invoke the rule in Murray v. The City of Saskatoon (No. 2) 15 .[86] The rule in Murray v. Saskatoon was stated succinctly by the SaskatchewanCourt of Queen’s Bench in Marlowe Smith v. General Recorders Ltd. et al 16 as follows:2011 CanLII 72774 (SK LRB)… When a witness who could testify to facts in issue is not called, an inferencemay be drawn that the testimony would be contrary to, or at least would notsupport, the case of the party making assertions that might best be provedthrough that witness. Murray v. City of Saskatoon (No. 2) (1951), 4 W.W.R.(N.S.) 234….[87] This rule has been established law for some time. The history of the rule wasrecounted by the Supreme Court of Canada in R. v. Jolivet 17 . At paragraph 25 - 28, Mr. JusticeBinnie, speaking for the Court says:25 The general rule developed in civil cases respecting adverse inferences fromfailure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp.63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:It is certainly a maxim that all evidence is to be weighed accordingto the proof which it was in the power of one side to have produced,and in the power of the other to have contradicted.26 The principle applies in criminal cases, but with due regard to the division ofresponsibilities between the Crown and the defence, as explained below. It issubject to many conditions. The party against whom the adverse inference issought may, for example, give a satisfactory explanation for the failure to call thewitness as explained in R. v. Rooke 1988 CanLII 2947 (BC CA), (1988), 40C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbournrev. 1979), vol. 2, at § 290:In any event, the party affected by the inference may of courseexplain it away by showing circumstances which otherwise account15 Supra, Note 1316 [1994] 121 S.L.R. 296, CanLII 5152 (QB)17 [2000] SCC 29 (CanLII); 185 DLR (4th) 626; 144 CCC (3d) 97; 33 CR (5th) 1

19for his failure to produce the witness. There should be no limitationupon this right to explain, except that the trial judge is to be satisfiedthat the circumstances thus offered would, in ordinary logic andexperience, furnish a plausible reason for nonproduction. [Italics inoriginal; underlining added.]27 The party in question may have no special access to the potential witness.On the other hand, the “missing proof” may lie in the “peculiar power” of the partyagainst whom the adverse inference is sought to be drawn: Graves v. UnitedStates, 150 U.S. 118 (1893), at p. 121. In the latter case there is a strongerbasis for an adverse inference.28 One must also be precise about the exact nature of the “adverse inference”sought to be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Lawof Evidence in Canada (2nd ed. 1999), at p. 297, § 6.321, it is pointed out thatthe failure to call evidence may, depending on the circumstances, amount “to animplied admission that the evidence of the absent witness would be contrary tothe party’s case, or at least would not support it” (emphasis added), as stated inthe civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p.506. The circumstances in which trial counsel decide not to call a particularwitness may restrict the nature of the appropriate “adverse inference”.Experienced trial lawyers will often decide against calling an available witnessbecause the point has been adequately covered by another witness, or anhonest witness has a poor demeanour, or other factors unrelated to the truth ofthe testimony. Other jurisdictions also recognize that in many cases the mostthat can be inferred is that the testimony would not have been helpful to a party,not necessarily that it would have been adverse: United States v. Hines, 470F.2d 225 (3rd Cir. 1972), at p. 230, certiorari denied, 410 U.S. 968 (1973); andthe Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998]A.S.O.U. 6529 (QL), and O’Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p.929.2011 CanLII 72774 (SK LRB)[88] At issue here is the testimony which may have been adduced through Mr.Lepper. Counsel for the Employer argued that there was no need to call Mr. Lepper becausethe Employer had provided testimony from both Mr. Holodryga and Ms. Outerbridge respectingthe matters at issue. Ms. Outerbridge was involved in all of the telephone conferences in whichMr. Lepper participated and provided evidence respecting those calls. Similarly she waspresent at all of the “tool box” meetings and provided evidence respecting those meetings.[89] Counsel for the Union did not specify what inference he expected the Board todraw other than a negative inference that Mr. Lepper’s evidence would not support orcorroborate the evidence provided by Ms. Outerbridge.[90] In R. v. Jolivet, the Supreme Court was considering an appeal of a criminalmatter from the Quebec Court of Appeal. At issue was a comment in the opening statement of

20the Crown wherein the Crown stated that it intended to call a particular witness to corroboratethe testimony of other witnesses. In the final result, the Crown decided not to call that witness.[91] Defence counsel indicated to the Court at trial that he wished to comment in hisjury address on the Crown’s failure to call this witness, the trial judge offered the defence theopportunity to call witness “B” and cross-examine him, but that offer was rejected. The trialjudge then indicated that if defence counsel commented on the Crown’s failure to call “B”, hewould instruct the jury that “B” could have been called by the defence as well as by the Crown.The Court of Appeal was unanimous in its finding that this ruling in effect prevented defencecounsel from commenting on the Crown’s failure to call its previously announced witness andthat this was an error of law.2011 CanLII 72774 (SK LRB)[92] The Supreme Court allowed the appeal from the decision of the Quebec Court ofAppeal. In doing so, it commented, as noted above, on the inference that may be drawn when awitness is not called.[93] The Supreme Court ruled that there is no obligation to call a witness it considersunnecessary to the prosecution’s case. While the statements made in opening and in thecourse of trial were consistent only with the Crown’s intention at that time to call “B”, a statementof intention does not necessarily amount to an undertaking and the trial judge found in favour ofthe Crown on that point. The Crown’s conduct called for an explanation, but Crown counselexplained that he believed “B” would not be a truthful witness. As the trial judge acceptedCrown counsel’s explanation, there can be no question here of an abuse of process. Crowncounsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that themodification does not result in unfairness to the accused. Where an element of prejudiceresults (as it did here), remedial action is appropriate.[94] While this decision dealt with a criminal appeal to the Court, and the facts are notcompletely in sync with the matter here, nevertheless, it has some precedential value in thesecircumstances. As noted above, the Supreme Court cautioned against drawing an inference inevery case. It noted that it was open to counsel to explain why the witness was not called.Counsel for the Employer advised that he felt it was unnecessary to call Mr. Lepper as Ms.Outerbridge was able to provide all necessary testimony concerning the “tool box” meetings aswell as the discussions in the conference calls as she was privy to all of them.

21[95] Similarly as noted in the quotation above, the Court cautioned that thecircumstances in which trial counsel decide not to call a particular witness may restrict thenature of the appropriate “adverse inference”. Experienced trial lawyers will often decideagainst calling an available witness because the point has been adequately covered by anotherwitness”. That was precisely the reason provided by the counsel for the Employer as to why thewitness was not called.[96] Counsel for the Employer, as is counsel for the Union, is an experienced counselbefore this tribunal. We find the explanation offered by counsel for the Employer to bereasonable, particularly in light of the Supreme Court’s direction in Jolivet as noted above. Wetherefore, decline to draw any inference resultant from Mr. Lepper’s failure to testify.2011 CanLII 72774 (SK LRB)[97] Another point could also be made, and that is that it was open for the Union tohave called Mr. Lepper, who could have been declared to be a hostile witness. This option wasnot explored by counsel for the Union who could have requested a Subpoena to Mr. Lepper forhis appearance. However, this option was not explored by either counsel, nor suggested by theBoard and accordingly, we decline to rule on this point.The Issues to be Determined[98] There are three principal issues to be determined in this matter. They are:1. Did the Employer commit an unfair labour practice contrary to section11(1)(e) of the Act?2. Did the Employer commit an unfair labour practice contrary to section11(1)(a) of the Act?3. If a breach of the Act has been found to have occurred, what are theremedies which should be ordered by the Board?[99] For the reasons that follow, we answer these questions as follows:1. No2. No3. As a result of no breach having been found, no remedy is required.

22Has there been a breach of Section 11(1)(e) by the Employer?[100] The Board has recently outlined its jurisprudence with respect to the applicationof s. 11(1)(e) of the Act in Canadian Union of Public Employees v. Del Enterprises Ltd. o/s St.Anne’s Christian Centre. 18 That decision referenced the Board’s decision in Canadian Union ofPublic Employees, Local 3990 v. Core Community Group Inc., 19 which decision referenced theBoard’s decision in Saskatchewan Joint Board, Retail Wholesale and Department Store Unionv. Moose Jaw Exhibition Co. Ltd. 20[101] In the Moose Jaw Exhibition case, supra, the Board quoted from para. 123 of itsdecision in Saskatchewan Government Employees Union v. Regina Native Youth andCommunity Services Inc 21 . as follows:2011 CanLII 72774 (SK LRB)It is clear from the terms of Section 11(1)(e) of the Act that any decision todismiss or suspend an employee which is influenced by the presence of tradeunion activity must be regarded as a very serious matter. If an employer isinclined to discourage activity in support of a trade union, there are few signalswhich can be sent to employees more powerful than those which suggest thattheir employment may be in jeopardy. The seriousness with which thelegislature regards conduct of this kind is indicated by the fact that the onusrests on the employer to show that trade union activity played no part in thedecision to discharge or suspend an employee.[102] In United Steelworkers of America v. Eisbrenner Pontiac Asuna Buick CadillacGMC Ltd. 22 the Board made this observation about the significance of the reverse onus found ins. 11(1)(e) of the Act. In that decision, the Board outlined two elements that the Board mustconsider as follows:When it is alleged that what purports to be a layoff or dismissal of an employeeis tainted by anti-union sentiment on the part of an employer, this Board hasconsistently held, as have tribunals in other jurisdictions, that it is not sufficientfor that employer to show that there is a plausible reason for the decision. Evenif the employer is able to establish a coherent and credible reason for dismissingor laying off the employee…those reasons will only be acceptable as a defenceto an unfair labour practice charge under Section 11(1)(e) if it can be shown thatthey are not accompanied by anything that indicates that anti-union feeling wasa factor in the decision.18 [2004] Sask L.R.B.R. 156, [2004] S.L.R.B.D. No 33, LRB File Nos. 087-04 to 092-04.19 [2001] Sask. L.R.B.R. 131, LRB File Nos. 017-00 to 022-0020 [1996] Sask. L.R.B.R. 575, LRB File Nos. 131-96, 132-96 & 133-96.21 [1995] 1 st Quarter Sask. Labour Rep. 118, LRB File Nos. 144-94, 159-94 &160-94.22 [1992] S.L.R.B.D. No. 31, LRB File Nos. 161-92 to 163-92.

23[103] Also, in The Newspaper Guild v. The Leader-Post, a Division of Armadale Co.Ltd., 23 the Board noted that in making its analysis of the decision, it would not enter directly intoan evaluation of the merits of the decision.For our purposes, however, the motivation of the Employer is the central issueand in this connection the credibility and coherence of the explanation for thedismissal put forward by the Employer is, of course, a relevant consideration.We are not required, as an arbitrator is, to decide whether a particular cause fordismissal has been established. … Our task is to consider whether theexplanation given by an employer holds up when the dismissal of an employeeand some steps taken in exercise of rights under The Trade Union Act coincide.The strength or weakness of the case an employer offers in defence of thetermination is one indicator of whether union activity may also have entered intothe mind of the Employer.2011 CanLII 72774 (SK LRB)[104] The explanation offered by the Employer in this case was, firstly, that thedecision to implement layoffs had been taken prior to commencement of the organizationaldrive, but had been postponed by the Farm Progress Show and the Plant Opening Celebrationsin June of 2011. Secondly, the Employer noted that who was to be laid off was determinedsolely by Ms. Outerbridge and Mr. Riddock based upon length of service, attendance issues,performance issues and level of remuneration. Thirdly, the layoffs were restricted to the grainauger production employees since there were still outstanding orders for grain bins. Finally, itnoted that no new employees had been hired since the layoffs to fill the vacancies created whenthe six employees were laid off.[105] Counsel for the Union argued that other choices could have been made withrespect to which employees were chosen for lay off. As noted in The Newspaper Guild v. TheLeader-Post, a Division of Armadale Co. Ltd., it is not for the Board to determine or secondguess the Employer’s decision respecting the lay off or termination, unless it can be shown thatthat decision was, in itself, motivated by some anti-union animus.[106] In United Steelworkers of America and Brandt Industries Ltd. 24 , the Board hasnoted that “where there is a choice of employees to be laid off, the employer must go furtherand explain why it chose to lay off one employee and not the other.” In that respect, Ms.Outerbridge provided a document 25 outlining the criteria utilized by the Employer for those23 [1984] 1 st Quarter Sask. Labour Rep. 242 at 248.24 Supra, Note 625 See Exhibit E-8

24employees not selected for lay off. No issue was taken by the Union regarding this listing ofemployees apart from evidence from Mr. Copeland that he was a better “flight machineoperator” than the operator that was kept by the Employer. However, this ignored the fact thatthe other “flight machine operator” was a long term (20 year) employee of the Employer andwas the first criteria adopted by the Employer to determine who should be laid off.[107] Similarly, Mr. Dunbar began his employment on April 11, 2011. While there weresome employees employed after his start date, these employees primarily worked in the binproduction area, or worked on the night shift as well as one truck driver who was replacing along term employee who was then on disability.2011 CanLII 72774 (SK LRB)[108] Without second guessing the Employer’s decisions with respect to the personschosen for lay off, the explanations given by the Employer as to the choice of persons to be laidoff provide an adequate explanation.[109] Overall, the Board is satisfied that the explanation offered by the Employer wasboth credible and coherent and that the Employer demonstrated that it had good and sufficientreason for the lay offs. There was a shortage of orders for the products produced at theEmployer’s facility, particularly grain augers. A decision was made in May of 2011 thatproduction would have to be reduced, which meant lay offs would have to occur. That decisionwas made by Mr. Holodryga and communicated to Ms. Outerbridge. However, that decisionwas delayed until after the Farm Progress Show in the hopes that further orders for grain augerswould be achieved. Also, the Employer did not want to have the workplace disrupted during itsPlant Opening Celebration. It was not until after the decision had been made, that the Unionbegan its organizing drive. That drive coincided with the previously scheduled lay offs.[110] That leaves the second question to be determined, that is, whether or not anyanti-union animus played a part in the decision to lay off these employees, or, in particular, Mr.Copeland, Mr. Dunbar or Mr. Phan.[111] Union counsel also argued that the reverse onus provision in s. 11(1)(e) of theAct required the Employer to prove that there was no anti-union animus in the Employer’sdecision. With respect, we cannot agree. Under s. 11(1(e), the Employer has the onus to showthat its actions were not intended to coerce or intimidate employees from the exercise of their

25rights under the Act. The Employer must rebut the presumption contained in the reverse onusprovided for in s. 11(1)(e) by showing that the decision was not tainted by any element of antiunionanimus which would have the effect of intimidating or coercing employees from theexercise of their rights under the Act.[112] Mr. Holodryga testified that many of the other plants operated by the WGIWestman Group were unionized facilities. He also testified that he became aware of the unionorganizing drive when approached by some employees upon his arrival at the workplace onJune 21, 2011. He also testified that the Production Manager advised him on June 21, 2011that a production foreman had also been approached about signing a union card.2011 CanLII 72774 (SK LRB)[113] The testimony established that in response to these events, Mr. Holodryga andMs. Outerbridge called a meeting of the senior staff after he had consulted with the Employer’slegal counsel in Manitoba as well as the Employer’s Human Resources Department inWinnipeg. Following those conversations, he called a meeting with Ms. Outerbridge and othermembers of his management team. Mr. Holodryga testified that the message he delivered tothe management team was that there were rumours regarding a possible union organizingcampaign. He testified that his instructions were that the members of the management teamwere to stay neutral and not interfere, and if approached by employees they were to refer thoseemployees to either himself or to Ms. Outerbridge. There was no evidence that they wereapproached by any additional employees following this instruction being given.[114] There was evidence from Mr. Copeland that he had been seen by Mr. Holodrygain the employee parking lot when he was speaking to other employees about signing a unionsupport card. Mr. Holodryga denied having seen Mr. Copeland. In this respect, the Boardbelieves the evidence of Mr. Holodryga that he did not observe any such incident.[115] The Board can, therefore, find no evidence that the lay offs were in any waymotivated by an anti-union animus. As such, we find that the Employer has satisfied the onusplaced upon it pursuant to s. 11(1)(e). The application by the Union under s. 11(1)(e) istherefore dismissed.

26Has there been a breach of Section 11(1)(a) by the Employer?[116] Section 11(1)(a) was amended by the legislature effective May 14, 2008. Prior toits amendment, the section read as follows:11(1) It shall be an unfair labour practice for an employer, employer’s agentor any other person acting on behalf of the employer:(a) in any manner including by communication, to interfere with,restrain, intimidate, threaten, or coerce an employee in the exerciseof any right conferred by this Act;[117] The May, 2008 amendment recast the section as follows:2011 CanLII 72774 (SK LRB)11(1) It shall be an unfair labour practice for an employer, employer’s agent orany other person acting on behalf of the employer:(a) to interfere with, restrain, intimidate, threaten, or coerce anemployee in the exercise of any right conferred by this Act, but nothingin this Act precludes an employer from communicating facts and itsopinions to its employees;[118] In 1991, the Board confirmed that it was settled law in Saskatchewan that anemployer is entitled to communicate with its employees. In Retail, Wholesale and DepartmentStore Union v. Canadian Linen Supply Limited 26 the Board says:It is settled law in this Province that an employer is entitled to communicate withits employees, even with respect to matters that are the subject matter ofcollective bargaining negotiations, so long as the communication:(a)(b)(c)does not amount to an attempt to bargain directly with the employeesand circumvent the union as the exclusive bargaining agent;does not amount to an attempt to undermine the union’s ability toproperly represent the employees; anddoes not interfere with, restrain, intimidate, threaten, or coerce anemployee in the exercise of any rights conferred by the Act.[119] In the Canadian Linen case, the Board determined that the test to be applied bythe Board was an objective one. At p. 68, the Board says:26 [1991] 1 st Quarter Sask. Labour Rep 63 at 67 & 68.

27The determination of whether, in the particular circumstances, a communicationhas interfered with, coerced, intimidated, threatened or restrained an employeein the exercise of a right conferred by the Act is an objective one. The Board’sapproach in such cases is to ascertain the likely effect of the communication onan employee of average intelligence and fortitude. [Emphasis added][120] Similarly, in RWDSU v. Saskatchewan Centre of the Arts 27 , a decision of theBoard following the 1993 amendment to the Act to bring the wording of the section to thewording immediately prior to the 2008 amendment, the same objective test was determined tobe appropriate under that legislation. At p. 73 & 74, the Board says:We have concluded in this case, however, that this communication was wordedin bland enough terms that it would not be coercive to what the Board hasreferred to as “an employee of reasonable fortitude” – even a casual employeeof reasonable fortitude.2011 CanLII 72774 (SK LRB)[121] Just prior to the amendment of the section in 2008, the Board issued a decisionin RWDSU v. Temple Gardens Mineral Spa Inc. and Deb Thorn 28 . In that case, at pp. 101 etseq, the Board said:[31] The first decision of the Board which analyzed the test to be appliedunder s. 11 (1) (a) was the Saskatoon Co-operative Association case[Saskatchewan United Food and Commercial Workers, Local 1400 v.Saskatoon Co-operative Association Limited, [1983] Sask. Labour Rep. 29,LRB File Nos. 255-83 and 256-83]. In that case, the Board examined thelawfulness of several employer communications during the course of theparties’ negotiations for the renewal of a collective agreement. The Boarddetermined that the examination of the communication is not limited todetermining whether the subject matter is prohibited or permitted under the Act,and stated at 37:…but that is not to say that any particular subject is invariablyprohibited (or permitted) under the Act. The result is that theBoard’s inquiry does not end once the subject being discussedis identified and categorized as permitted or prohibited.Instead, it concentrates on whether in the particularcircumstances a communication has likely interfered with,coerced, intimidated, threatened or restrained an employee inthe exercise of any right conferred by the Act.[32] The Board described a two-part test in the following terms at 37:The Board’s approach is designed to ascertain the likelyeffect on an employee of average intelligence andfortitude. That kind of objective approach by its very nature27 Supra Note 1028 [2007] Sask. L.R.B.R. 87, LRB File No. 162-05

28. . .eliminates insignificant conduct, since trivialities will not likelyinfluence an average employee’s ability to freely express hiswishes. It also necessitates an inquiry into the particularcircumstances of each case, because it recognizes thatthe effect of an employer’s words and conduct may varydepending upon the situation.The employers’ communications were directed to theemployees as a group and made no effort to isolate them fromeach other or from their union representatives who had readyaccess to the picket lines.The Board heard a great deal of evidence regarding allegedinaccuracies in the written communications. It finds that thefirst and second communications were substantially accurate,and that in the circumstances they did not likely interfere withthe average employee’s ability to form his own opinion or toreach his own conclusions. Nor were they of the kind thatcould reasonably support an inference of improper employermotive.[emphasis added]2011 CanLII 72774 (SK LRB)[122] Similarly, the Alberta Labour Relations Board uses an objective test to determinethe impact of an employer communication on employees. In The National Automobile,Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) Local No1227 and E.D.O. Canada Limited, 29 the Alberta Board says at p. 13:In evaluating a complaint of this nature, the Board must determine whether theemployees were capable of freely expressing their true wishes in arepresentation vote. The Ontario Board in Greb Industries Limited andTeamsters Local 879 et al., [1979] Can LRBR 56 set out the Ontario Board’sapproach to determining the effects of the conduct upon employees. Theburden of proving the complaint that the conduct has deprived the employees ofthe ability to freely exercise their true wishes rests upon the party alleging thebreach, in this case the CAW. The Board must look at the objective facts ofwhat occurred and draw reasonable inferences as to what is the more probableeffect of this conduct upon the employees in all the circumstances. This is anobjective test. The Ontario Board’s approach is to determine the likely effect ofthe conduct upon the employee of average intelligence and fortitude. We adoptthis approach.[123] Also, at page 12 of that decision, the Alberta Board referred to an earlier boarddecision in International Brotherhood of Electrical Workers v. Stuve Electric Ltd. et al. 30 with29 [1992] Alta L.R.B.R. 20230 [1989] Alta L.R.B.R. 69 at 75

29respect to the section of the Alberta Code which deals with communications between anemployer and its employees. There the Alberta Board says:The employer raises section 146(2)(c) in defense of its conduct. Sections146(1) and 146(2) represent a balancing of interests. The employer’s right tofree speech is balanced against the employee’s right to freely select trade unionrepresentation. Employers are not required to sit gagged and bound during anorganizing campaign. Employees are not like Burns’ “wee timorous beasties”scared off by the slightest expression of employer opposition. However, anemployer is in a position of power, particularly in respect to unorganizedemployees. Free speech must be tempered, as it is in section 146(2)(c), by arecognition that certain conduct emanating from the employer can coerce orunduly influence employees impairing their right to freely select a union.2011 CanLII 72774 (SK LRB)[124] In order for the Union to succeed in this application, they have the onus to provethat the communications which they cite (the “tool box” meetings) has interfered with, restrained,intimidated, threatened, or coerced an employee of “reasonable fortitude” against the exerciseof any right conferred by this Act. The test to be applied by the Board, being an objective testhas not changed due to the 2008 amendment. We do not agree with counsel for the Union thatthe amendment in 2008 converted the test to be utilized to a subjective test.[125] The test, therefore, remains whether the Union has satisfied the Board on theevidence presented, that an employee of “reasonable fortitude” would be interfered with,restrained, intimidated, threatened, or coerced from the exercise of any right conferred by thisAct.[126] The actions of the Employer which are alleged to have violated s. 11(1)(a) wasthe holding of the four “tool box” meetings. These meetings were held on Friday, June 24, 2011following the lay off of Mr. Copeland and three other employees on June 22, 2011 and prior tothe dismissal of Mr. Dunbar and Mr. Phan later that day.[127] In this case, there was no suggestion that the “tool box” meetings amounted toan attempt to bargain collectively with the employees and therefore circumvent the Union as theUnion had not yet achieved a certification for those employees. Similarly, since there was nocertification, there was no argument that the meetings were an attempt to undermine the union’sability to properly represent the employees. At issue was whether or not the meetings interferedwith, restrained, intimidated, threatened, or coerced any employee in the exercise of any rightsconferred by the Act.

30[128] The evidence of Mr. Copeland and Mr. Guillet was that the organizational drivewas rendered ineffective immediately following the lay offs on Wednesday, June 22, 2011. Mr.Dunbar, who attended one of the “tool box” meetings, testified regarding his attendance at themeeting prior to his lay off. He did not at any time during his testimony suggest that thesemeetings interfered with, restrained, intimidated, threatened, or coerced him or any otheremployee in the exercise of any right conferred by the Act.[129] The only evidence regarding these meetings was presented in the form of thenotes provided by Ms. Outerbridge. While characterized as notes from the meeting, they readmore like a “to do” list for Ms. Outerbridge regarding matters raised at the meeting. We accepther uncontradicted testimony that the reference to an Employee Association was similar to aHealth and Safety Committee rather than an Employee Association which might seekcertification of the Employer’s employees.2011 CanLII 72774 (SK LRB)[130] Mr. Dunbar’s testimony was that the concept of an Employee Association wasnot discussed at the meeting he attended. Counsel for the Union invited us to draw theconclusion that this was based on the Employer’s knowledge that Mr. Dunbar was involved inthe Union organizing campaign and it therefore deliberately avoided discussion of this subjectwhen Mr. Dunbar was in attendance. We decline to draw such a conclusion which is notsupported by any evidence and therefore amounts to nothing more than pure speculation as toboth the Employer’s knowledge of who the organizers were, and that the Association wassomehow intended to supplant the Union in the workplace.[131] For the reasons set out above, we conclude that the Union has failed to satisfythe onus upon it to show a violation of s. 11(1)(a) of the Act. We are of the view that the “toolbox” meetings were legitimate communications with the Employer’s employees insofar as anemployee of “reasonable fortitude”, including Mr. Dunbar would not, in our opinion, have feltpressure to abandon or forgo their rights under the Act because of either these meetings beingheld, or because of the nature of the matters discussed at such meetings.[132] These meetings, based upon the objective test utilized by the Board both prior tothe amendment, and which will continue to be applied following the amendment, leads us to theconclusion that the holding of these meetings, as well as the matters discussed at those

31meetings, would have been within the bounds of acceptable communication before thatamendment and remain as acceptable communication now. 31[133] It is therefore, unnecessary to provide any further interpretation of theamendments to s. 11(1)(a) other than those provided above. Counsel for the Union outlined anumber of issues which he found confusing regarding the meaning of the section. I am certainthat the Board will have other occasions, based on other factual situations, where furtherinterpretation may be required.[134] The application under s. 11(1)(a) is accordingly dismissed.2011 CanLII 72774 (SK LRB)Remedy:[135] Based upon the failure of the Applicant Union with respect to its applicationspursuant to s.11(1)(a) and (e), no remedy need be awarded.Decision:[136] The applications are hereby dismissed.DATED at Regina, Saskatchewan, this 16th day of November, 2011.LABOUR RELATIONS BOARDKenneth G. Love, Q.C.,ChairpersonDissent by Member, John McCormick[137] For the reasons set forth below, I dissent from the decision by the majority. Idisagree with the majority particularly with respect to their finding that the explanation for the31 See also Cornerstone Credit Union (Re), [2008] S.L.R.B.D. No. 38, 154 C.L.R.B.R. 135, CanLII 47043, LRB FileNo. 024-08 at paragraph 39

32layoffs given by the Employer was not a credible or coherent reason. I also dissent from themajority’s view of the communications by the Employer at the “tool box” meetings.[138] I believe that the majority has misconstrued the evidence given by both Mr.Holodryga and Ms. Outerbridge that they were unaware of the impacted employees’participation in the organizing drive. Mr. Holodryga testified that he was aware of the organizingdrive from reports from both employees who were concerned about being approached by theUnion to sign a support card and by a manager who reported that one of the production foremenhad been approached to sign a card.[139] Mr. Holodryga was a long term employee and was familiar with union settings. Ifind it hard to accept that, given his experience, he was unaware of the persons behind theUnion campaign, notwithstanding his testimony to the contrary.2011 CanLII 72774 (SK LRB)[140] Furthermore, I find it difficult to accept that someone with the experience that Mr.Holodryga possesses, that he would have waited so long (i.e.: until a union organizing drive wasin progress) to make the employee layoffs. I do not believe his testimony that he had planned tomake lay offs for some time prior to them actually occurring, nor do I accept the excuse givenregarding waiting for possible orders at the Farm Progress Show and for the Plant Openingevent to occur. If there was indeed a surplus of production, he had the experience from hisyears at other plants to have made the decision upon knowing of the increasing production andnot have wasted additional resources hoping for a change of fortune.[141] It also seems incongruous to me that the Employer would have laid off Mr.Copeland, someone who had been provided specialized training as a flight operator when theycould have retained him by bumping him into another position in the workplace which may haveresulted in a reduced salary, but the Employer would have had the benefit of a trained flightoperator available as the need arose, to back up the only other flight operator who had beenwith the Employer for many years.[142] For these reasons, I do not think that the Employer has satisfied the onus placedupon it by Section 11(1)(e) of the Act to justify the lay off of these employees.

33[143] In respect of the complaint under Section 11(1)(a), I disagree with the majorityview as well. It was clear from the evidence of Ms. Outerbridge that Mr. Lepper was in chargeand was leading those meetings. It would have been helpful, in my opinion, to have heard fromMr. Lepper and have his testimony tested through cross-examination by the Union.[144] I find that it is suspicious that the Employer suddenly began to hold “tool box”meetings for the first time on June 24, 2011, when Mr. Lepper visited from Winnipeg. Ms.Outerbridge testified that these were the first such meetings ever held by the Employer inRegina. These meetings were co-incident with the organizing campaign.[145] I am also of the view that the Employer crossed the line when it proposed anemployee association be established. This, in my view was a direct challenge to the organizingcampaign currently ongoing and was intended to dissuade employees from supporting theUnion in its drive.2011 CanLII 72774 (SK LRB)[146] For these reasons, I would have found a breach of s. 11(1)(a) of the Act withrespect to the captive audience meetings held by the Employer.Remedy:[147] By way of remedy, I would have done the following:1) re-instated Nat Dunbar to his position with the Employer effective as ofthe date of his layoff; and2) provide monetary loss, subject to usual mitigation, for Dusty Copeland,Nat Dunbar and Ha Phan, the calculation of which I would leave to theparties to determine, but, in the event they were unable to agree withrespect to the quantum to be paid by way of monetary loss, to have thatamount determined by the Board.John McCormick, Board Member

CITATION: Chartrand v. R. W. Travel Limited, 2011 ONSC 2148COURT FILE NO.: 24015/07DATE: 20110405ONTARIOSUPERIOR COURT OF JUSTICEB E T W E E N: ))SUSAN CHARTRAND ) Michael C. Allemano, for the Plaintiff)))Plaintiff ))- and - )))R.-W. TRAVEL LIMITED ) Brian L. DeLorenzi, for the Defendant)))Defendant )))) HEARD: December 6, 7, 8, 2010 andJanuary 25, 26, 20112011 ONSC 2148 (CanLII)D E C I S I O NWILCOX, J.[1] BACKGROUNDThe defendant company is incorporated pursuant to the laws of Ontario and carries on businessas a travel agency in Sault Ste. Marie, Ontario. It is owned and operated by Walter Pozniak andRoberta Pozniak who are husband and wife.

- 2 -[2] The plaintiff, Susan Chartrand, age 59, began working for the defendant in January, 1990as a travel consultant. She was off work on what is referred to as a “stress leave” from May 31,2006 to October 10, 2006 when she returned to work. Coincident with returning to work, shepresented the Pozniaks with a document dated October 4, 2006 entitled “Expectation on return towork at Carlson Wagonlit Global Travel on October 10, 2006”. It will be referred to in short asher “Expectations”. It is common ground that a meeting between the defendant’s staff, includingthe plaintiff, and the Pozniaks was held on February 22, 2007. The plaintiff’s employment withthe defendant ended on March 1, 2007 when she tendered her resignation. She subsequentlybrought this action for damages, alleging that she was constructively dismissed from her job.She also claimed for vacation pay allegedly owed to her. For reasons that follow, I dismiss theclaim for constructive dismissal, but allow the claim for vacation pay.2011 ONSC 2148 (CanLII)[3] The trial of this matter began on December 6 th , 2010 and extended over several days inDecember, 2010 and January, 2011, ending on January 26, 2011.[4] At the outset, the plaintiff’s counsel moved for and obtained on consent an orderamending the Statement of Claim adding the following as paragraph 22 of the Statement ofClaim: The plaintiff was subjected to harassment by Roberta Pozniak and Walter Pozniak, theprincipals of the defendant during her course of employment with the defendant and suffereddamages arising from this workplace harassment.[5] The title of proceedings was also amended on consent to change the defendant’s namefrom R & W Travel Limited to R.-W. Travel Limited.[6] LAW OF CONSTRUCTIVE DISMISSAL[7] It is helpful before reviewing the evidence to know the test for constructive dismissal. InShah and Xerox Canada Ltd. [2007] O.J. No. 849, the Ontario Court of Appeal agreed with thetrial decision of Cullity J. that the court may find that an employee has been constructivelydismissed without identifying a specific fundamental term (of the employment contract) that hasbeen breached, where the employer’s treatment of the employee makes continued employmentintolerable. In the trial decision, [1998] O.J. No. 4349, Cullity J. said at para. 38:“Where the conduct of management personnel is calculated to cause anemployee to withdraw from employment, it may, in my judgment, amountto constructive dismissal. The test, I believe, is objective: it is whether theconduct of the manager was such that a reasonable person in thecircumstances should not be expected to persevere in employment. As theparticular circumstances are crucial, each case must be decided on its ownfacts. The test should not be lightly applied. An employer is entitled to be

- 3 -critical of the unsatisfactory work of its employees and, in general, to takesuch measures – disciplinary or otherwise – as it believes appropriate toremedy the situation. There is, however, a limit. If the employer’s conductin the particular circumstances passes so far beyond the bounds ofreasonableness that the employee reasonably finds continued employmentto be intolerable, there will, in my view, be constructive dismissal whetheror not the employee purports to resign.[8] In Stamos v. Annuity Research and Marketing Service Ltd. [2002] O.J. No. 1865,Dambrot J. of the Ontario Superior Court of Justice commented at para. 60:[9] An employer owes a duty to its employees to treat them fairly, with civility, decency,respect and dignity. An employer who subject employees to treatment that renders competentperformance of their work impossible or continued employment intolerable exposes itself to anaction for constructive dismissal. Where the employer’s treatment of its employees is ofsufficient severity and effect, it will be characterized as an unjustified repudiation of theemployment contract. Whether such treatment is viewed as a breach of a specified fundamentalimplied term of the employment relationship (see, for example, Lloyd v. Imperial Parking Ltd.,[1996] A.J. No. 1087 (Q.B.), and Sheppard v. Sobeys Inc., [1997] N.J. No. 78 (C.A.)), or as arepudiation of the entire employment relationship (see Shah v. Xerox Canada Ltd., [2000] O.J.No. 849 (C.A.)) the result is the same. The employee is entitled to treat the employment contractas at an end and to recover at least damages in lieu of reasonable notice.2011 ONSC 2148 (CanLII)[10] Also, at paragraph 62, he said:Not only is an employer obliged not to treat an employee in a manner thatrenders competent work performance impossible, or continued employmentintolerable. An employer has a broader responsibility to ensure that thework environment does not otherwise become so hostile, embarrassing orforbidding as to have the same effect. As Chadwick J. put it in Robinson v.Royal Canadian Mint, [1992] O.J. No. 2270 (Gen. Div.), aff’d [1997] O.J.No. 1966 (C.A.), an employer owes a duty “to see that the work atmosphereis conducive to the well-being of its employees”. An employer’s failure toprevent the harassment of an employee by co-employees is an obviousbreach of this duty, and has been held to be capable of amounting toconstructive dismissal (See Sheppard v. Sobeys Inc., at para. 25).[11] EVIDENCE[12] Leyda (Bonnie) Wills gave evidence for the plaintiff. She worked for the defendant forone and one half years in or around 2001 and 2002, and had been a travel consultant for 25 years

- 4 -by the time she finished there. It was very unpleasant to work there, she said. For example, ifone was late returning from lunch, Roberta Pozniak would “go up one side and down the other”.Talking among the staff would bring Ms. Pozniak out of her office saying to get back to work.She did not recall Ms. Pozniak yelling, but said she had a tone of voice even if not yelling. Shestated that Ms. Pozniak was authoritarian, impatient and abrupt, going beyond just a managementstyle. For Ms. Wills, it was the last straw. She quit not only the job with the defendant, but thetravel industry, and went to work in the insurance business.[13] Ms. Wills said that the plaintiff would be upset and cry on a regular basis, even daily.Walter Pozniak knew something of the situation and would tell Roberta Pozniak to back off. Ms.Wills had urged the plaintiff to quit because one could take that office environment only for solong.2011 ONSC 2148 (CanLII)[14] In later years, after the defendant moved to a location near Ms. Wills’ new job, she could,she said, see the plaintiff crying in the parking lot at times. She had talked with the plaintiff onoccasion when their lunches overlapped, knew what the plaintiff’s complaint was, and said that itnever changed.[15] Tina Kennedy also gave evidence for the plaintiff. She had worked for the defendantuntil about February, 2009, including about four years with the plaintiff. She would have quit inFebruary, 2007 if she had had another job to go to. When she did quit, she went on a stress leavefor a while before starting her present job with the Canadian Automobile Association as a travelconsultant. Ms. Kennedy recalled the plaintiff going on stress leave and eventually leaving thedefendant’s employ because of stress caused, she said, by Roberta Pozniak. Prior, she had seenthe plaintiff shake on a regular basis and break down and cry at least two times.[16] Miss Kennedy said she received from Roberta Pozniak treatment similar to the plaintiff’safter the plaintiff left. She referred particularly to stress, yelling, the Pozniaks arguing betweenthemselves, getting blamed for things when she was not at fault, and being yelled at by Ms.Pozniak. She felt that both Pozniaks treated her improperly. She put up with it at first, but saidit built up until she could not take it.[17] Exhibit 1, Tab 8 is a letter dated February 26 th , 2007 that Miss Kennedy confirmed thatshe had written. It is addressed to Walter Pozniak. Miss Kennedy confirmed in court what shesaid in the letter about wanting the office’s atmosphere to be more relaxed, referring to RobertaPozniak’s style of management, and that she would like to have seen less aggression in how thePozniaks dealt with the staff.[18] Testimony was also received from Jim Chartrand, the plaintiff’s spouse of 16 years. Hesaid that he observed that the plaintiff was not herself leading up to the stress leave, but she

- 5 -would not talk much about it then, or while she was off work. He had announced that he wasgoing on strike the day that she left her job. He encouraged her to take the 17 weeks off thatwere allowed by Employment Insurance which she did and, he said, she seemed healthyafterwards. Mr. Chartrand confirmed that there had been a number of phone calls from and fourmeetings with Roberta Pozniak during the plaintiff’s stress leave, and that there was somediscussion about how long the plaintiff expected the defendant to hold the job for her, causingthe plaintiff concern about losing her job. Once the plaintiff returned to work, the situation wasgood for a while but then deteriorated and he became concerned for the plaintiff’s health. Afterthe plaintiff’s resignation, it was six to eight months before her condition improved.[19] The plaintiff’s doctor, Dr. David Beck, testified.[20] He first met the plaintiff on May 1, 2006 when she reported that the work environmentwas causing her stress. It appeared that no help was needed then, but when he next saw her onJune 5, 2006, he felt that she needed relief from the environment and gave her a note to be offwork for medical reasons. On June 28, 2006, he noted she was showing more signs ofdepressive illness and her mental status was deteriorating. So, she was prescribed an antidepressantmedication. He saw her about monthly. After returning to work in October, 2006,she exhibited stress-related phenomena but was being assertive, had a plan in place and waslooking forward to dealing with the situation. In subsequent months, her stress levels appearedto increase, but they showed improvement after her resignation.2011 ONSC 2148 (CanLII)[21] Previous to Dr. Beck, the plaintiff had Dr. Elizabeth Barrett at the same clinic, who shehad last seen on May 9, 2003. In cross-examination, Dr. Beck said he had not read the plaintiff’schart, likely except for the last one or two entries. He could not recall reading Dr. Barrett’s May9, 2003 entry and did not recall discussing with the plaintiff her family history of depressionnoted therein. He did not know if the plaintiff had taken anti-depressants before.[22] Questioned about the factors which can contribute to depression, the doctor said thesewere variable but that family history is important and that financial pressure is one. He wasreferred by counsel to the May 31, 2006 note entitled “Sault area hospital crisisintervention/emergency psychiatric assessment”, found at Exhibit 1, Tab 47, which says, amongother things, “Ct reports increased financial stress as her husband may be going on strike.” Dr.Beck said he could not argue the effect of that on the plaintiff one way or the other.[23] Dr. Beck said that it is the patient’s perception which is important. He did not get intodetails with her. The cause of stress, anxiety and depression vary among people. The plaintiff’sperception of workplace events led to his diagnosis of work-related stress.

- 6 -[24] Testimony was received from Debbie Collins-Maskel. She is a social worker with anMSW from 1993 and 29 years of experience. She had five sessions with the plaintiff from July12 to November 23 rd , 2006. She admitted that she had not seen the plaintiff’s records from crisisintervention nor from the doctors, and that she did not know if the plaintiff had been on antidepressantmedications before, if the plaintiff had other than workplace sources of stress, if theplaintiff had a family history of depression, nor if the plaintiff had taken any previous stressleave. Her role, she said, was not to independently verify nor to delve into other areas, but tohelp the plaintiff with the plaintiff’s perception of the workplace. It was apparent that theplaintiff had raised generally the same concerns with her as she had expressed to Dr. Beck andthroughout the trial. Ms. Collins-Maskel did not observe any other reason for the plaintiff’ssymptoms, and said that the plaintiff’s feelings were real.2011 ONSC 2148 (CanLII)[25] Deborah St. Pierre was a witness for the defendant. She is a sister of Roberta Pozniak.She has worked for the defendant intermittently since the early 1980s, leaving the first time dueto unspecified personal reasons, returning to work for the defendant, but leaving again soon afterthe plaintiff did in March, 2007. She had worked over 10 years with the plaintiff. The defendanthas employed her again since March, 2010.[26] She impressed as a reluctant witness, particularly in cross-examination when she oftenappeared content to be indefinite or not to make much effort to recall things. When pressed, heranswers could evolve and change substantially from her initial position.[27] Ms. St. Pierre indicated that she has not always gotten along well with Ms. Pozniak, butthat they have mended their relationship with the help of other family members. Ms. Pozniakhas forgiven her a $10,000 loan that had been the source of some friction between them.[28] Ms. St. Pierre admitted to having supported the plaintiff vis à vis the defendant and tohoping that the plaintiff would succeed in her case in which Ms. St. Pierre was to have been awitness for the plaintiff. However, she said her position had changed in December, 2009 whenshe had “moved on” because it was the plaintiff’s fight, not hers, and life is too short to holdgrudges, especially with family. She denied that it was because of her relationship with Ms.Pozniak, the forgiving by Ms. Pozniak of the loan, or the job.[29] It was clear that Ms. St. Pierre was disinclined to testify to anything that woulddetrimentally affect her sister, Ms. Pozniak.[30] Ms. St. Pierre described the job with the defendant as stressful because of the timelinesinvolved, details to take care of and multi-tasking in a busy office. Ms. Pozniak, who shedescribed as a strict, tough, demanding boss who is harsh at times, expected a lot of people andran a “tight ship”. Walter Pozniak, she said, was a little more mellow.

- 7 -[31] Ms. St. Pierre generally denied or downplayed the plaintiff’s concerns or said that theplaintiff and other staff were treated the same. She allowed that there was stress in the office andthat the plaintiff clashed with Ms. Pozniak, and claimed that the plaintiff did not like to takedirection from Ms. Pozniak.[32] Ms. St. Pierre said regarding the February 22, 2007 staff meeting that things had not beenrunning smoothly and the staff wanted to address some issues. She disagreed that most of thesewere regarding Ms. Pozniak, except that one might have been about how Ms. Pozniak spoke tostaff about errors. The issues, she said, were referred to in her letter at Exhibit 1, Tab 7.[33] That letter, dated February 26, 2007 was written by Ms. St. Pierre after the meeting. Themeeting had become heated between her and Ms. Pozniak and had been ended by WalterPozniak who had asked for letters from staff. In the letter, she referred to the way “Robbie”,meaning Ms. Pozniak, spoke to the staff and about the atmosphere in the office adding to theinherent stress of the job, among other things. In the letter, she denied that she and the plaintiffspoke about personal issues in the office, but during cross-examination, she admitted that thatwas not so. Also in cross-examination, she said that the reference to the way Ms. Pozniak spoketo the staff had more to do with the tone of voice than the words themselves.2011 ONSC 2148 (CanLII)[34] As previously noted, Ms. St. Pierre left the defendant’s employ in March, 2007, soonafter the plaintiff left. She said that she took a stress leave as recommended by her doctor forhealth reasons. She was having trouble sleeping and experiencing stomach issues. Sheattributed these problems to a combination of the stressful job and her separation. Also, she saidthat her relationship with Ms. Pozniak was not good at that time, but not solely because of workrelatedissues. Indeed, she said, she and Ms. Pozniak were not speaking at the time.[35] Ms. St. Pierre went on to work from July, 2008 to July, 2009 at another job andsubsequently worked at another travel agency until she was laid off. She returned to work for thedefendant in March, 2010 after another sister intervened between her and Ms. Pozniak. Theyrestored their relationship and Ms. St. Pierre learned that Ms. Pozniak had forgiven her the$10,000 loan.[36] A comment on Ms. St. Pierre’s evidence is in order here. The quality of her relationshipwith her sister, Roberta Pozniak, has varied dramatically over time. This, understandably,colours Ms. St. Pierre’s view of situations involving her sister. During the period leading up tothe end of the plaintiff’s employment relationship with the defendant, Ms. St. Pierre’srelationship with her sister appears to have been at a low ebb. Also at that time, she wasallegedly going through a separation. In those circumstances, it is reasonable to conclude thatshe was unduly harsh in her criticism of the Pozniaks and their business at the time. By the timeof the trial, Ms. St. Pierre’s relationship with Ms. Pozniak had been repaired and Ms. St. Pierre

- 8 -would feel grateful for the forgiveness of the loan and dependant for her job. In thosecircumstances, it is reasonable to think that, as appeared from Ms. St. Pierre’s testimony, shewould minimize her criticism of the defendant. Consequently, little reliance can be placed onher evidence.[37] Roberta Pozniak testified at some length. She exhibited a stern, business-like appearanceand had a low, somewhat harsh voice. She said that she and Walter Pozniak had owned thedefendant company since 1978. He, not she, had previous travel business experience.Generally, the staff consisted of them and three employees. She outlined the respective roles ofthe people in the office. She said that her management style had not changed over the years.Her views on the various complaints of the plaintiff are dealt with under those topics elsewherein these reasons. Generally, she denied the evidence of others regarding her mistreatment of theplaintiff.2011 ONSC 2148 (CanLII)[38] Walter Pozniak testified for the defence. He has been in the travel business for 40 years.Along with Roberta Pozniak, he owns the defendant company which opened in 1978. He saidthat Roberta Pozniak is the manager, which could explain why he seemed somewhat detachedfrom events. It is a busy office, he said, where there is work to be done and no time to chat.Losing the plaintiff on sick leave left him in “dire straits”, and he was happy to see her return towork. However, he left it to Roberta Pozniak to deal with the plaintiff. There was someinconsistency in his evidence in that he spoke of the plaintiff’s high value as an employee, butalso of her excessive mistakes which the office paid for.[39] The October 4, 2006 expectation document mentioned above was referred to frequentlyduring the trial and provides a useful tool for organizing the evidence of the plaintiff’scomplaints about the defendant. It consists of 17 paragraphs each of which will be set out anddealt with in turn.[40] 1. Rules apply to everyone equally, such as start times, uniforms, personal calls, etcetera.[41] The evidence on point indicated that the rules about the uniforms and personal calls wereapplied equally to the staff.[42] Although they did not all work the same shifts, some having different hours from others,the plaintiff did not object to this. However, Roberta Pozniak insisted that the employees arrive10 or 15 minutes early so as to be at their desks and ready to work at their start times. On thethree occasions that the plaintiff was not there 10 minutes before her shift, each time for a goodreason, she said that she was yelled at by Ms. Pozniak. These incidents took place within the lastthree years of her employment. She contrasted this with the more lenient treatment of others

- 9 -who, the plaintiff said, were rarely there 10 minutes early but were either not spoken to or werenot reprimanded as severely.[43] More generally, the plaintiff’s evidence was that she felt that she was not treated as wellas the other employees. The evidence of Leyda (Bonnie) Wills and Tina Kennedy agreed withthis assessment.[44] Ms. Wills’ evidence was that the plaintiff was treated badly by the Pozniaks, as a secondclass citizen. She said that the plaintiff was verbally abused by Ms. Pozniak who would say, forexample, “What’s wrong with you?” The plaintiff would be given jobs to do with insufficienttime, and Ms. Pozniak would get furious at her for not keeping up. She added that the plaintiffknew the system, was a fast worker and would help Ms. Wills if she had time. Ms. Willsfrequently heard Ms. Pozniak being angry at the plaintiff, including over the plaintiff’s shoes ondress-down day. There was, she said, regular criticism of the plaintiff by Roberta Pozniak.2011 ONSC 2148 (CanLII)[45] Ms. Kennedy did not recall the plaintiff being treated differently from the others workwise,but noted that Ms. Pozniak had less patience with the plaintiff and picked on her a lot. Shereferred to the plaintiff “walking on eggshells” each day, some of which got worse over time.[46] Roberta Pozniak testified that Ms. Wills and Ms. Kennedy’s evidence that the plaintiffwas poorly treated was wrong, and that she treated all of the employees the same. She did wantemployees to arrive at work ten minutes early so as to be ready to work at their starting time, andhad to bring this to the attention of other employees at times. She recalled speaking with theplaintiff on one occasion about arriving late and being told that it was because the plaintiff hadbeen physically ill on the way to the office. Ms. Pozniak said she told the plaintiff to check herdesk, give her files to the others and go home, but that the plaintiff stayed and worked the day.[47] Ms. Pozniak admitted being strict about the dress code with all of the employees and saidthat she would bring it to the attention of a person not following the code. Walter Pozniak saidthat applied to him, too. She recalled telling all three employees at times that something was notacceptable and asked that they not wear it again. The business was associated with CarlsonWagonlit which had a mandatory uniform from the fall of 1995 until about 2003. After that, andafter consulting the staff, she had ordered suits for them which were worn from September toMay but replaced by business casual wear in the warmer months. She reviewed how they hadinstituted casual Fridays, but that she had maintained some standards and spoken to both DebbieSt. Pierre and the plaintiff asking them not to wear certain items again, but not sending themhome because of it.[48] Personal calls, she said, were acceptable if necessary, but were to be kept short.

- 10 -[49] 2. Comfortable, even temperature in the office.[50] The plaintiff’s counsel submitted that this case is not about small matters such astemperature, but for the plaintiff it was an ongoing issue and it was even referred to in her letterof resignation, and counsel indicated at one point that it was an example of how Ms. Pozniak wasbeing controlling. So, I will address it.[51] According to the plaintiff, some people in the office were cold, some were hot, and thetemperature was set for Ms. Pozniak’s comfort. The plaintiff complained of being cold. Ms.Wills confirmed it was cold, but she expected that if she had asked for a heater, she would havegotten one. Roberta Pozniak testified that some of the staff were cool, some were comfortable,and some were hot. Therefore, she set the temperature at 70 degrees as a happy medium, butwould adjust it as staff requested.2011 ONSC 2148 (CanLII)[52] Defence counsel submitted that the temperature matter does not amount to constructivedismissal. I agree. Human experience shows that not everyone is comfortable at the sametemperature all the time.[53] 3. Even distribution of workload.[54] The plaintiff complained of an uneven distribution of workload. She said that RobertaPozniak would rearrange the plaintiff’s desk, give her more files, and then complain about thework not getting done. She thought that this happened to her more than to the other staff.Regardless of how many files she already had, she said, she was given others’ files and problemfiles. She felt overwhelmed. She could not recall Ms. Pozniak taking files from her and givingthem to others to work on to spread the load. The plaintiff wanted a more even distribution ofthe extra work. She also had a problem with the way Ms. Pozniak spoke to her.[55] Ms. Wills confirmed that the plaintiff would get extra work. She knew the system, wasfast and could help her if Wills was swamped. Wills helped her if she could.[56] Ms. Kennedy was the junior person and said that Ms. Pozniak would give the plaintiff herfiles in addition to the plaintiff’s.[57] Roberta Pozniak testified that the workload was shared according to who was busy andwhat deadlines there were, that she could help the plaintiff such as with invoicing and that shedid not give the plaintiff more work than she gave to Ms. St. Pierre or Ms. Kennedy.[58] Defence counsel argued that, even if defendant’s complaints are accurate, they do notamount to constructive dismissal. I would say that as a senior, experienced employee, the

- 11 -plaintiff would be able and expected to do more work and more difficult work, which appears tohave been the case, and that this complaint does not support a finding of constructive dismissal.[59] 4 - One full hour for lunch, from the time I leave. It is an unpaid lunch from 11:45a.m. to 12:45 p.m. If I am delayed leaving because I am with a client, on the phone with aclient or helping Walter, then I get a full hour from whenever I leave.[60] Employees’ lunch breaks were staggered so there was always someone on duty and theoffice would not be understaffed if one was not back on time, the plaintiff said, and hers was11:45 to 12:45. Her problem was that, even when she was unable because of work demands toleave on time, she was expected to return on time. Ms. Wills confirmed that, if she was late, Ms.Pozniak would “go up one side and down the other”.2011 ONSC 2148 (CanLII)[61] Roberta Pozniak testified that the plaintiff had requested the 11:45 to 12:45 lunch periodto accommodate her banking period. She also said that it was rare for any of the staff to leavelate for lunch. However, the plaintiff started picking her times, which interfered with the other’slunches, so Ms. Pozniak became stricter, requesting that the staff try to be back on time.[62] It seems that this concern was resolved in some fashion, and it was not pursued at trial.[63] 5 - No more derogatory comments or putdowns about my work or my personalappearance. I’m always neat and clean and do not need to be told my jeans or shoes arenot good enough to wear on “dress down” Fridays but good enough for Saturday.[64] The plaintiff did not allege that any vulgarity had been directed at her, but did say thatRoberta Pozniak said on one occasion, “What are you, stupid?”. Ms. Wills claimed that theplaintiff got verbally abused with respect to work-related matters when Ms. Pozniak wouldquestion, “What’s wrong with you?”, and “Why didn’t you get it done?”[65] Also of concern to the plaintiff were comments Ms. Pozniak made about her personalappearance, including that she “looked tired today” or that it was “time for a haircut”, althoughshe did not recall the last time Ms. Pozniak had said to get her hair done. She did recall that, atChristmas around 1995, Ms. Pozniak had given her a gift certificate for that. On anotheroccasion, Ms. Pozniak had told her to wear makeup, which the plaintiff generally did not use.Also, about one or two years after starting to work for the defendant, the plaintiff said, Ms.Pozniak had spoken to her regarding her wardrobe, taken her shopping and bought clothes forher, embarrassing the plaintiff.[66] The office had casual Fridays and the plaintiff complained that Ms. Pozniak was too strictabout what the staff could wear even on them, and that what was acceptable one day was not thenext. Ms. Wills confirmed that Ms. Pozniak could get angry over shoes.

- 12 -[67] Another complaint was that, when the office went to uniforms, Ms. Pozniak insisted thatthe pockets remain sewn closed for appearance. Furthermore, she insisted that the blouses bewhite and that shoes be black or white. The plaintiff found it funereal. She, along with MissKennedy at least, would have liked the option of adding some colour.[68] Ms. Pozniak’s response is set out, in part, under Expectation 1 to do with uniforms andwill not be repeated here. She added that, around 1994 or 1995, she gave the plaintiff a giftcertificate for a haircut and colour after the plaintiff had said she wanted to get her hair done butlacked the money. This certificate was on top of the Christmas bonus. Ms. Pozniak thought thatshe had asked the plaintiff where she went to get her hair done.[69] Ms. Pozniak also recalled that, before the office went to uniforms, she had found outfrom other staff that the plaintiff lacked the money for work clothing. So, Ms. Pozniak took theplaintiff clothes shopping, which she said she had also done for Debbie St. Pierre. Ms. Pozniakpaid for the clothes. She also got hair care certificates for Ms. St. Pierre and pedicures andmanicures for staff as they wanted. She denied ever telling the plaintiff to get her hair done or towear makeup. She did say that the plaintiff should try makeup because, in Ms. Pozniak’sexperience, doing so could make one feel better. She also recalled calling the plaintiff in toinquire because she did not look well, not asking her if she had had a late night, and thensuggesting after some discussion that the plaintiff see a doctor. She denied ever calling theplaintiff stupid.2011 ONSC 2148 (CanLII)[70] Defence counsel submitted that the plaintiff’s comments regarding her personalappearance is the only one of her complaints that might come close to constructive dismissal, if itis serious enough.[71] It is accepted that Ms. Pozniak expressed concern for the plaintiff’s appearance from botha personal and a professional viewpoint. On a personal level, there was concern for theplaintiff’s health and wellbeing. Ms. Pozniak also went to some trouble and expense to help theplaintiff and other employees with their wardrobes and personal care. On the professional side,Ms. Pozniak expected and enforced within reason a standard for the office, as was her right as anowner and manager of the business.[72] In my view, this item does not amount to constructive dismissal. Even if one accepts theplaintiff’s evidence completely and discounts Roberta Pozniak’s, the incidents complained of arenot serious enough or frequent enough to do so.[73] 6 – No more yelling in the office. If you have a disagreement with someone, pleasedo so quietly in the privacy of your office.

- 13 -[74] The complaint about the Pozniaks yelling in the office had two aspects. One involvedyelling at the plaintiff. The other involved the Pozniaks yelling at each other, or on thetelephone.[75] Mention has already been made of Roberta Pozniak yelling at the plaintiff for being lateon three occasions. In addition, she said that Ms. Pozniak had yelled at her about files, readingtravel magazines, or computer issues. If the computers were down, she said, Ms. Pozniak wouldyell at her as if it was her fault.[76] When asked to demonstrate what she meant by “yelling”, the plaintiff raised her voicesomewhat, although it was not particularly loud, falling well short of a yell. However, sheaccused Ms. Pozniak of being angry, aggressive and confrontational, and of using a nasty tone.At some unspecified point, she had yelled back at Ms. Pozniak, “quit yelling at us. It’s nothelping!”2011 ONSC 2148 (CanLII)[77] The plaintiff alleged that the Pozniaks yelled in the presence of the employees andcustomers. This made her cringe and she felt embarrassed, intimidated and afraid. It led toanxiety and panic attacks. She related it to her becoming physically ill on her way to work oneday. That was on one of the occasions when she said Ms. Pozniak yelled at her for being late.Specific examples involved Ms. Pozniak yelling on the telephone in her office at Bell Telephoneand the Public Utilities Commission. Also, she said that the plaintiffs would argue betweenthemselves in raised voices, making it hard to work as she would have to cover the telephone sothat clients could not hear.[78] Ms. Wills did not recall Ms. Pozniak yelling, but said that Ms. Pozniak had a tone ofvoice even if she was not yelling.[79] Ms. Kennedy recalled Ms. Pozniak yelling at the Public Utilities Commission, definitelymaking her feel uncomfortable, the Pozniaks arguing between themselves, and Ms. Pozniakyelling at her and the plaintiff. She recalled Ms. Pozniak yelling at the plaintiff many times,although not necessarily the specifics of each time. For example, if the printer did not work, shesaid that Ms. Pozniak would “get out of control” and blame the plaintiff, or if the internet wentdown, Mr. Pozniak would question why, blaming the plaintiff for things that were not her fault.Ms. Kennedy referred to the demeanour of Ms. Pozniak in such instances, implying it wasunpleasant.[80] Ms. Pozniak denied yelling at the plaintiff or at any employee in 15 to 16 years. Whenone was late, she said, she would say so, but not raise her voice. She added that, if, for example,a computer was down, she would after a while ask if it was back up. If not, she would get to the

- 14 -bottom of the problem and the help desk would be called. She denied ever blaming the plaintifffor the computer or printer being down.[81] Ms. Pozniak did recall yelling or raising her voice to the Bell Telephone and PublicUtilities Commission in the fall of 2005 or spring of 2006 regarding issues that she was havingwith them.[82] I find that occasions of Ms. Pozniak “yelling” at someone on the telephone, whatever“yelling” means to the plaintiff, does not amount to constructive dismissal. Nor does the arguingbetween the Pozniaks in the office. There was no evidence as to the frequency of such events,but one has to remember that the plaintiff worked there for 17 years. Also, the expression“yelling” seems to have been used quite liberally by the plaintiff and one or more of theplaintiff’s other witnesses, taking into account the plaintiff’s demonstration in court of what shemeant by yelling, which was not very voluble, and the repeated comments by the witnesses thatit was not so much the volume as the tone of voice that Roberta Pozniak used. Also, what ischaracterized as yelling at the plaintiff appears to be more in the nature of stern talk by Ms.Pozniak in her role as manager which the plaintiff was uncomfortable with.2011 ONSC 2148 (CanLII)[83] In any event, the evidence under this heading does not rise to the level of demonstratingconstructive dismissal.[84] 7 – If I’ve made an error, or you think I did, don’t just accuse; ask about it and wecan discuss it calmly. Just because a note in a file has my writing or email doesn’t meanthat it’s my error.[85] The plaintiff alleged that being blamed for others’ errors was a regular occurrence andwas upsetting to her. Ms. Kennedy confirmed this and said it got worse over time although shedid not recall the specifics of what the plaintiff got blamed for.[86] The only specific example involved what was referred to for convenience in the trial asthe “Bangladesh ticket”. There was much testimony and discussion about this at the trial, mostof which need not be repeated here. Briefly, a junior employee had reserved a ticket toBangladesh for a client at a low price, but failed to submit payment and lost that reservation.The file was given to the plaintiff to reserve the space again, which she did, but it was no longeravailable at the low price. The difference in price would have to be absorbed by the defendantand amounted to several hundred dollars. The plaintiff was instructed not to issue the ticket yetin the hope that a better price would become available. Before the ticket was issued, thereservation time expired and the reservation was cancelled again. This caused a lot of concern inthe office and Walter Pozniak instructed the plaintiff to correct the situation. Meanwhile,Roberta Pozniak wanted her to deal with other files. It is not clear whether the error leading to

- 15 -the second cancellation was the plaintiff’s or not, but Walter Pozniak thought it was and theplaintiff denied it. Be that as it may, the plaintiff would not have been required to pay for thedifference in price between a reservation that had been lost and one that had been confirmed.Nor would there have been any disciplinary action or probation, according to Mr. Pozniak. Theoffice had other means of making up such differences. Nevertheless, the plaintiff claimed shewas reduced to crying and shaking, and had to leave. That was the point at which she went onher stress leave.[87] Roberta Pozniak’s evidence was that, when an error was detected, she would go to thestaff, ask how it happened and speak to them about fixing it without raising her voice. Sheconfirmed that a list was kept of mistakes made by the staff which had cost the defendant moneyand that there was a mechanism for making this up, not by them paying in cash or having itdeducted from their pay, but by finding lower fares for tickets that clients had already paid for.2011 ONSC 2148 (CanLII)[88] Aside from the Bangladesh ticket, in which it is unclear whether or not the plaintiff madean error, there are no specific examples of her being blamed for the errors of others. It isapparent that errors did occur from time to time, that the defendant had a mechanism for dealingwith these so that the staff were not out of pocket for them and that there was no disciplinaryaction. Indeed, as noted elsewhere in these reasons, Walter Pozniak testified both that theplaintiff made a lot of errors and that she was a valuable employee.[89] Nothing under this heading amounts to a constructive dismissal.[90] The next three expectations can conveniently be dealt with together.[91] 8 – No more hovering over my shoulder or behind me to make sure I’m working.I’m here to work and as always will give 100 %.[92] 9 – A little more relaxed atmosphere in the office. If I make a comment to Debbie orTina or laugh or respond to something a client says, it doesn’t mean I’m not doing my job.[93] 10 – If I am at someone else’s desk, it’s usually for a good reason. I don’t need youcoming out and harshly asking what’s going on or if there’s a problem. If I’m not at mydesk for two minutes, you are out there to see what I’m doing.[94] The plaintiff complained of Roberta Pozniak watching her from her office or standingover her, watching her work, sometimes commenting or questioning her. If the plaintiff was atanother desk, Ms. Pozniak would ask why and if she did not have enough work to do. Theplaintiff spoke of being verbally pushed regarding work. She said that on one occasion, whenshe explained that she was helping a junior with a file, Ms. Pozniak advised that that was notnecessary. Another time, when Ms. Pozniak overheard the plaintiff commenting to another staff

- 16 -member about something amusing, Ms. Pozniak objected. The plaintiff claimed that theemployees had no difficulties among themselves, but that the atmosphere became tense overtime. She became afraid to speak to co-workers.[95] The plaintiff spoke of having, with some regularity, anxiety attacks or panic attacksrelated to her work.[96] Roberta Pozniak denied hovering over the plaintiff. She said that she had to leave herown office many times each day for work-related purposes and be out in the open concept areawhere the staff worked. At times, she would have to go to the plaintiff’s desk to check on filesor re-order the priority of files that she had given the plaintiff.[97] Ms. Pozniak did express concern about the amount of time the plaintiff spent talking toother staff members in the office, and said that she had spoken to the plaintiff about that. Shesaid she often found the plaintiff at Ms. St. Pierre’s desk when Ms. Pozniak had been away fromthe area, and would ask if they needed something. The plaintiff would say no and go back to herdesk. She found the plaintiff leaving her desk several times per day for several minutes at a timeand it was obvious to her that it was not work-related. She noted that the plaintiff wassometimes at Ms. St. Pierre’s desk, whispering. She also found the plaintiff talking on the phoneabout personal matters.2011 ONSC 2148 (CanLII)[98] This appears to be another matter of office management. It was a busy office and thestaff were expected to work. Ms. Pozniak was responsible for managing the staff and it is clearthat she expected them to perform. I do not see that her efforts in this regard amount toconstructive dismissal.[99] 11- Have a little trust in us. At 5:30 p.m., you and Walter are trying to rush us outthe door. We would like to leave on time too, but sometimes there is still work to be done.You don’t have to stay while we finish. We’re not going to cheat you.[100] The plaintiff complained that the Pozniaks would not leave an employee alone inthe office who wanted to stay late to complete some work and said that the employees were notgoing to claim for time not worked. Rather, the Pozniaks would rush them out at closing time,unless they themselves intended to stay late.[101] Roberta Pozniak testified that they would not be rushed out if there was work tobe done. All wanted to leave on time, and work would be shared to try to accomplish that.[102] This appears to be a minor matter not amounting to constructive dismissal.

- 17 -[103] 12 – Travel magazines; we should be able to read these in the office since it ispart of the job. Lunch break and coffee break is for yourself to unwind and clear yourmind so you can do your job more efficiently.[104] The plaintiff testified that travel magazines are produced by the industry, advisingof changes in it that Roberta Pozniak expected the employees to know. Being work-related, theplaintiff thought that they should be able to read these publications at work, but said that Ms.Pozniak would not allow that and, instead, expected that they be read in personal time. Ms.Wills confirmed not being able to read these at work except to get an answer for work purposes.It was alleged that Ms. Pozniak would quiz employees on the contents.[105] Roberta Pozniak testified that reading these was optional although she hadquizzed them one or two times. She encouraged the reading of them on breaks, at lunch or evenat home. One time, a picture of her was in one of the magazines, but, when she asked the staff,none had seen it.2011 ONSC 2148 (CanLII)[106] The idea of reading on one’s own time to keep informed for the purposes of one’sjob is, I suspect, fairly common and, certainly in the degree that it was expected in this instance,does not support a constructive dismissal claim.[107] 13 – Staff meetings: these should be attended by all staff, including Walterwho should be there for the entire meeting, not just part of it. We should all have our sayand issues discussed. Also, we should be compensated for this extra time spent at work.Other businesses hold these meetings during business hours or pay overtime.[108] The plaintiff thought it was reasonable to have meetings to address concerns. Itseems there were meetings at times, but Walter Pozniak would rarely attend and soon leave, orwould attend and soon leave.[109] A meeting was held in the office on February 22, 2007, attended by the Pozniaks,Tina Kennedy, Debbie St. Pierre and the plaintiff. The plaintiff thought that all three of the staffhad approached Walter Pozniak regarding Roberta Pozniak and conditions in the office. She hadtold him that things had to change in the office. She saw that things were returning to the waythat they had been prior to her stress leave.[110] The meeting degenerated into arguing, so Walter Pozniak ended it and soughtletters from the staff that he could take up with Roberta Pozniak. Each of the staff producedsuch letters, but the plaintiff left the defendant’s employ before anything further wasaccomplished.

- 18 -[111] Given that the meeting was arranged at the request of the staff and both of thePozniaks attended, this point does not contribute to a finding of wrongful dismissal. Thequestion of compensation for the time spent in after hours meetings was not dealt with during thetrial.[112] Expectations 14 and 15 can be dealt with together.[113] 14 – Saturday: hours are 10:00 a.m. to 1:00 p.m. You said we get 3 hours nomatter how late we have to stay. If I work until 1:30 or 2:00 p.m., I should get 3½ or 4hours accordingly.[114] 15 – Extra hours: we should be able to accumulate all our extra time. If weare at our desks at 8:50 a.m. and don’t leave until 5:50 p.m., that should be an extra halfhour. This has not happened. You say that we have to be there until 6:00 p.m. for it tocount. All these extra 15, 20, 25 minutes a day sure add up. You say it will all work out inthe wash, but it does not.2011 ONSC 2148 (CanLII)[115] The plaintiff said that the business was open from 10:00 a.m. to 1:00 p.m. onSaturdays from September to May each year and the employees got time off in lieu, but did notconsistently get credit for any time worked over the three hours.[116] Similarly, she added that the staff meetings and travel company presentationswere held after hours without compensation.[117] Number 15, she said, spoke for itself. That is to say, there was no compensationfor extra minutes worked in a day. However, if the plaintiff had to leave early, she was dockedfor that time.[118] These points were not commented on by the plaintiff’s counsel in his submissionsand will not be dealt with further, other than to say they seem more appropriate to anEmployment Standards Act claim than to one for wrongful dismissal.[119] 16 – Breaks: we get a 10-15 minute break in the afternoon. We should alsobe getting a morning break.[120] This was not addressed in evidence nor in the plaintiff’s counsel’s submissions,and will not be dealt with further.[121] 17 – Raise: The last one was in January, 2004. In late January or earlyFebruary, I asked you whether we would be getting a raise. You said you would thinkabout it and discuss it with Walter. When I left on sick leave at the end of May, you still

- 19 -hadn’t made a decision. When I brought it to your attention a few times between Februaryand May, you said you hadn’t had time to think about it.[122] In cross-examination, the plaintiff said that her expectation in this regard was totalk about raises, not get one![123] This point was not commented on in submissions and will not be dealt withfurther.[124] SUBMISSIONS[125] The plaintiff’s counsel, Mr. Allemano, reviewed the evidence and submitted thatthe plaintiff’s case for constructive dismissal is based on the constant abusive conduct of RobertaPozniak towards her as established by all of the items raised by the plaintiff in her expectationsdocument and that no reasonable person would have been required to persevere given thecircumstances in this matter. He described Ms. Pozniak as “the boss from hell” and noted thatother employees had also quit.2011 ONSC 2148 (CanLII)[126] Defence counsel, Mr. DeLorenzi, referred to the test for constructive dismissal,stating that the plaintiff has the burden of proof on the balance of probabilities, and submittedthat she had not made out her case. In support, he reviewed the evidence regarding hercomplaints. His comments about those have been referred to above in reviewing each of theplaintiff’s work expectations. He observed that the evidence of the witnesses for the plaintiffwas “long on the same language” but “short on examples”, and that “nobody had any specifics,but they have a common story”. He reviewed the factual situations in cases filed by both counselwhere constructive dismissal had been found, and argued that they were more serious than in thepresent case. Also, he pointed out that cases such as Gebreselassie v. VCR Active Media Ltd.[2007] O.J. No. 4165 and Giesbrecht-Schalla v. Great-West Life Assurance Co. [2000] M.J. No.30 where the fact situations were somewhat similar to the present case had not resulted infindings of constructive dismissal. I found myself in substantial agreement with defencecounsel’s submissions.[127] DECISION[128] RE: CONSTRUCTIVE DISMISSAL[129] I have listened to the evidence, reviewed my notes and the exhibits, heard andreviewed a transcript of counsel’s submissions and considered the matter carefully as befits acase such as this which is important to both sides. Despite Mr. Allemano’s able presentation ofthe plaintiff’s case, I respectfully disagree with him. I do not find this to be a case ofconstructive dismissal on the balance of probabilities.

- 20 -[130] Some of the plaintiff’s complaints were, indeed, long on generalities and short onspecifics. An example is that she was blamed for others’ errors. She was a long-term employee.Some of her complaints, such as that Roberta Pozniak had taken her clothes shopping or paid forher hair care, seemed dated as well as misguided. Other complaints, such as regarding workdistribution and prioritization and being questioned about her activities in the office seemed tosimply reflect her resentment of Ms. Pozniak’s legitimate efforts to manage the business.[131] Complaints about yelling in the office, aside from those to do with Ms. Pozniak’scommunication with the utility companies over the telephone, appeared when probed to beexaggerated, as frequent mention was made that it was really Ms. Pozniak’s tone of voice thatgot people’s attention.[132] Other comments of mine regarding the various complaints have been madeelsewhere in these reasons as each has been dealt with in turn.2011 ONSC 2148 (CanLII)[133] I accept that the defendant’s is a busy office and there are pressures of deadlinesand volumes to contend with. In addition, Roberta Pozniak’s personality and management stylemight not be to everyone’s liking. She had expectations of the staff and made them known.There is definitely an edge to how she comports herself, which she would describe as “nononsense”. Clearly, it would be uncomfortable to be on the wrong side of her. On the otherhand, her testimony about purchasing clothes or personal services for the staff, for example,reveals another dimension of her, as does a comment recorded by Dr. Beck after the plaintiff hadreturned from stress leave as follows: “Her boss seems to be making some effort to try andaccommodate her”.[134] It cannot be assumed that the plaintiff was a perfect employee and thatmanagement’s conduct towards her, so far as she objected to it, was somehow misguided. Asidefrom management’s role of running the office, both Roberta Pozniak and Walter Pozniakexpressed concerns regarding aspects of the plaintiff’s job performance. Ms. Pozniak noted, forexample, that the plaintiff spent excessive time in personal conversations. Walter referred to thenumber of mistakes that the plaintiff made. This suggests that a degree of oversight wasrequired, which the plaintiff objected to.[135] The plaintiff’s counsel noted that the plaintiff was not the only employee whoquit. Overall, this was the strongest argument that the plaintiff had been constructivelydismissed because the test is objective and this provided insight into how others, not just theplaintiff, viewed the situation. However, each employee’s circumstances were looked at moreclosely. Debbie St. Pierre’s personal relationship with her sister, Roberta Pozniak, fraught withdifficulties arising outside of the work environment, and her troubled marital situation at the timeshe quit cloud the picture such that she does not provide a clear test case. Also, she has returned

- 21 -to work for the defendant. Leyda (Bonnie) Wills quit the travel industry, not just the defendant’semploy, introducing the possibility that she had had enough of the travel business and alsoclouding the picture. Tina Kennedy, the junior person, remained almost two more years beforemoving on. Overall, their circumstances do not provide a clear indication that the objective testfor constructive dismissal is met.[136] There is no dispute that the plaintiff’s symptoms were real. Defence counseladmitted this. However, no definitive cause was established. She attributed them to thedefendant’s office environment. Dr. Beck and Counsellor Collins-Maskel accepted thisuncritically. No further investigation was done. The job was inherently stressful and otherfactors such as financial challenges and pre-existing health conditions were noted. Indeed, hermental condition deteriorated after she went on her stress leave, suggesting other factors exertedsome influence. In any event, the plaintiff’s subjective assessment of her situation is not relevantwhere the test is an objective one.2011 ONSC 2148 (CanLII)[137] VACATION PAY[138] The plaintiff alleges that the defendant has wrongfully refused to pay outstandingvacation pay owing to her for the year 2006.[139] The plaintiff referred to Exhibit 1, Tab 32 which is a series of calendars and notesfrom 2003 through 2006. I understand that the notes are in Roberta Pozniak’s handwriting.[140] The January, 2006 calendar has the notation on it, “Plus 10 vacation days” at boththe top and bottom of the page. The plaintiff said that this was her entitlement from 2005.[141] The February, 2006 calendar has 10 vacation days shown at the top. February 10,2006 is marked as a vacation day and a further notation at the bottom of the February, 2006calendar page says, “Plus nine vacation days”.[142] There is no change until June, 2006 which shows nine vacation days at the topand two days marked “Vac Pd”.[143] The next page is the October, 2006 calendar which shows four vacation days atthe top, one day taken as vacation, and the notation, “Plus three vacation days” at the bottom.[144] The November, 2006 calendar show no vacation days taken, leaving the threedays remaining.[145] The December, 2006 calendar shows these vacation days being taken, and noneremaining.

- 22 -[146] The plaintiff’s explanation was that she had to work a year to earn vacation time.The ten days were earned in 2005 and used up in 2006. In 2006, she earned two more weeks ofvacation for use in 2007.[147] Roberta Pozniak’s evidence was that the pattern the plaintiff alleges in which hervacation pay is earned in one year for use in the next had been in place for a few years, but hadchanged at some point. After that, the plaintiff was using the vacation time in the year that sheearned it. Therefore, the plaintiff had used her 2006 vacation in 2006. She had been paid thevacation pay earned in January and February, 2007 (i.e. up to the day the plaintiff left thedefendant’s employment).[148] However, Exhibit 6 is a January, 2007 calendar showing ten vacation days at thetop of the page.2011 ONSC 2148 (CanLII)[149] Roberta Pozniak’s explanation is inconsistent with the notations on the calendars,and the plaintiff’s explanation is preferred. The plaintiff’s version is also consistent with s. 33(1)of the Employment Standards Act, which says:“An employer shall give an employee a vacation of at least two weeks after eachvacation entitlement year that he or she completes.[150] The plaintiff’s income tax return for 2006, found at Exhibit 1, Tab 27, showsemployment income of $24,450. She is entitled to four percent of that for vacation pay, being$978, payable forthwith.[151] COSTS[152] In view of the mixed success and the apparent modest financial resources of theplaintiff, each party shall bear its own costs.**********___________________________Justice James A. S. Wilcox

- 23 -Released: 201104052011 ONSC 2148 (CanLII)

COURT OF APPEAL FOR ONTARIOBETWEENCITATION: Bowes v. Goss Power Products Ltd., 2012 ONCA 425DATE: 20120621DOCKET: C54173Winkler C.J.O., Simmons, Cronk, Armstrong and Watt JJ.A.2012 ONCA 425 (CanLII)Peter BowesApplicant (Appellant)andGoss Power Products Ltd.Respondent (Respondent)Alex Van Kralingen, for the appellantDavid Rosenfeld, for the respondentHeard: May 25, 2012On appeal from the order of Justice Kevin W. Whitaker of the Superior Court ofJustice, dated July 5, 2011, with reasons reported at 2011 ONSC 4445, 95C.C.E.L. (3d) 228.Winkler C.J.O.:

Page: 2A. INTRODUCTION[1] The issue on this appeal is whether an employee, who is terminatedwithout cause, is required to mitigate his or her loss when entitled to a fixed termof notice or pay in lieu, and the contract of employment is silent with respect tomitigation.[2] The appellant, Peter Bowes, entered into a written contract of employment2012 ONCA 425 (CanLII)with the respondent, Goss Power Products Ltd., which provided that he wouldreceive six months’ notice or pay in lieu thereof if his employment was terminatedwithout cause. The employment agreement, prepared by the respondent, issilent with respect to a duty to mitigate.[3] The respondent terminated the appellant’s employment without cause.The letter of termination stated that the appellant would be paid his salary for sixmonths but was required to seek alternative employment during this period,keeping the respondent apprised of his efforts in this regard.[4] Approximately two weeks after he was terminated, the appellant obtaineda new position at the same salary he had been earning with the respondent.After paying the statutorily required three weeks’ salary, the respondent ceasedmaking salary payments to the appellant. The appellant brought an applicationunder rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, askingfor a determination of rights pursuant to his employment agreement.

Page: 3[5] In his application, the appellant argued that the employment agreement setout the termination payment that was due and owing. He had no duty to mitigateand was accordingly entitled to the amount set out in the employmentagreement. This amount, he stated, should be paid out in a lump sum at the timeof termination. The respondent argued that the appellant’s position was contraryto the settled case law on mitigation and was inconsistent with a reasonable2012 ONCA 425 (CanLII)interpretation of the agreement. The appellant had only suffered two weeks’ lossof salary, which is less than the statutory minimum notice period.[6] The application judge held that, where it contains a fixed severanceentitlement, an employment agreement is subject to a duty to mitigate unless theagreement, either directly or by implication, relieves the employee of thisobligation. Since the agreement at issue provided no such exemption from theduty to mitigate, the appellant was not entitled to the full amount provided forunder the agreement as he had mitigated his loss by finding new employment.The application judge also held that the severance payment was not due as alump sum.[7] The appellant appeals from this ruling. However, he has not appealed thedecision as it relates to the timing of the payment.[8] For the reasons that follow, I would allow the appeal.

Page: 4B. FACTS[9] The appellant began his employment with Goss Industries Inc., thepredecessor of the respondent, in the fall of 2007 in the capacity of Vice-President, Sales and Marketing. He signed an employment agreement onSeptember 26, 2007 (“Employment Agreement”) and commenced work for therespondent on October 9, 2007.2012 ONCA 425 (CanLII)[10] The Employment Agreement was prepared by the respondent andpresented to the appellant for signature. It was signed on behalf of the employerby the respondent’s President.[11] The Employment Agreement contained provisions setting out theappellant’s salary and other aspects of his compensation package. His basesalary was set at $130,000 per annum. There was provision for a bonus of up toone-half of his base salary and he was given a car allowance. The base salaryhad increased to $140,000 by the date of termination.(1) The Employment Agreement[12] The severance provision in the Employment Agreement is set out atparagraph 30(c):30. The Employee’s employment may be terminated inthe following manner and in the followingcircumstances:…

Page: 5(c) By the Employer at any time without cause byproviding the Employee with the following period ofnotice, or pay in lieu thereof:(i) Four (4) months if the Employee’semployment is terminated prior to thecompletion of twenty-four (24) months ofservice;(ii) Five (5) months if the Employee’semployment is terminated prior to thecompletion of thirty-six (36) months of service;(iii) Six (6) months if the Employee’s employmentis terminated prior to the completion of fortyeight(48) months of service; and(iv) Seven (7) months plus one (1) month for eachadditional full year of service over four years ifthe Employee’s employment is terminatedafter forty-eight (48) months fromcommencement up to a maximum of, in total,twelve (12) months notice.2012 ONCA 425 (CanLII)[13] Paragraph 31 of the Employment Agreement provides that the paymentprovided for in paragraph 30(c) is calculated on base salary only.[14] Paragraph 33 of the Employment Agreement provides:33. The Employee agrees that the notice provided [in]subsection 30(c) is in compliance with and in excess ofthe statutory minimum standards owed to the Employeeand set out in the Employment Standards Act andconstitutes full and complete satisfaction of any claimhe/she may have to notice or compensation in lieuthereof, and to any other payments whatsoever(including any and all damages for wrongful dismissal)as a result of the termination of employment and theEmployee agrees to release the Employer from any andall claims whatsoever which the Employee may havearising out of the termination, save and except forcompliance with the terms herein set out. It is agreedthat the notice provided in subsection 30(c) shall be an

Page: 6absolute, full and complete defence to any action orclaim which the Employee may advance against theEmployer as a consequence of any termination withoutcause, including, without limitation, any claim forconstructive dismissal.[15] The Employment Agreement contains a “whole agreement” clause, whichstipulates that amendments must be in writing. The agreement is silent about theduty to mitigate or whether any termination payment is due as a lump sum. It also2012 ONCA 425 (CanLII)states that the appellant had “the opportunity to seek out and obtain independentlegal advice … prior to the execution” of the Employment Agreement, althoughthe appellant did not do so.(2) Termination of Employment[16] On April 13, 2011, the respondent terminated the appellant’s employmentwith immediate effect, that is, without any notice. The letter of termination statedin part:Pursuant to your employment agreement datedSeptember 26, 2007 (the “Employment Agreement”),GOSS Power Products Ltd. (“GOSS”) will provide youwith salary continuance and car allowance for the nextsix (6) months until October 13, 2011 (the “NoticePeriod”). Throughout that time you are required to seekout and locate alternate employment and advise GOSSimmediately should you secure alternate employmentprior to the end of the Notice Period.[17] On April 20, 2011, the respondent issued a record of employment whichstated that the appellant was entitled to six months’ salary, as salary

Page: 7continuation, in the amount of $2,692.31 per week (based on a base salary of$140,000). In the “comments” section of the record of employment it stated thathe was “terminated without cause” and the salary continuance is expressed as“Starting Thursday, April 14/11” and “Ending Wednesday, Oct. 12/11”.[18] The appellant commenced employment with another employer on April 25,2011, at the same salary he had been paid by the respondent.2012 ONCA 425 (CanLII)[19] Upon becoming aware that the appellant had secured alternativeemployment, the respondent took the position that he was only entitled to receivethe minimum entitlement under the Employment Standards Act, 2000, S.O. 2000,c. 41, of three weeks’ pay in lieu of notice. The basis for this position was thatthe appellant had mitigated his loss successfully, which ended the respondent’sobligation to continue the payment of the salary continuance under theEmployment Agreement.C. THE DECISION OF THE APPLICATION JUDGE[20] Because the appellant had only received three weeks’ pay in lieu of notice,he brought an application on May 11, 2011 in the Superior Court, pursuant to rule14.05, for a determination of his rights under the Employment Agreement. Heasserted that he was entitled to receive the entire termination payment asspecified in the Employment Agreement and that the payment was not subject toa duty to mitigate. The application was heard on July 5, 2011 and, in an

Page: 8endorsement released on July 25, 2011, the application judge held that theappellant was “obliged to mitigate” and was entitled to only the statutoryminimum paid by the respondent.[21] The application judge began the analysis section of his endorsement bystating: “It is well established that in wrongful dismissal cases where there is aclaim for damages, employees are obliged to mitigate in the absence of2012 ONCA 425 (CanLII)agreement to the contrary.” He noted that, although it is open to the parties toagree that the duty to mitigate does not apply, either expressly or by implication,this obligation to mitigate does not arise as an implied term of the agreement butrather as a principle of damages. The issue in the present case, he stated, iswhether the same principle applies where an employment agreement contains aspecified “period of reasonable notice.”[22] Applying the decision of Nordheimer J. in Graham v. Marleau, LemireSecurities Inc. (2000), 49 C.C.E.L. (2d) 289 (S.C.), which the application judgefound “at this point to be settled law [in Ontario]”, the application judge concludedthat the duty to mitigate applied to the calculation of damages. He held that:“[T]he mere fact that the parties have agreed on the period of reasonable noticedoes not mean that the obligation to mitigate is ousted by agreement.” In theresult he found that the respondent’s interpretation of the EmploymentAgreement was the correct one.

Page: 9D. ANALYSIS[23] It is well-settled law that employment agreements are subject to theordinary principles of contract law. Peculiar to employment law, however, is theprinciple that, unless otherwise stated, every employment agreement contains animplied term that an employer must provide reasonable notice to an employeeprior to the termination of employment. If the employer fails to provide2012 ONCA 425 (CanLII)reasonable notice of termination, the employee is entitled to damages that flowfrom this breach.[24] However, the employee is bound in law to mitigate such damages as bestas he or she is able. In other words, the employee must make reasonable effortsto mitigate the damages by seeking an alternative source of income: see Bardalv. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (H.C.J.), at pp. 143-44; Evans v.Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661, at paras. 28-29. Laskin C.J., writing for a majority of the Supreme Court of Canada, describedthe duty to mitigate in Michaels v. Red Deer College, [1976] 2 S.C.R. 324, at p.330:The primary rule in breach of contract cases, that awronged plaintiff is entitled to be put in as good aposition as he would have been in if there had beenproper performance by the defendant, is subject to thequalification that the defendant cannot be called upon topay for avoidable losses which would result in anincrease in the quantum of damages payable to the

Page: 10plaintiff. The reference in the case law to a "duty" tomitigate should be understood in this sense.[25] However, the parties to employment agreements can, and often do,substitute a fixed period of notice in the agreement, thereby displacing thecommon law period of “reasonable notice”. Parties are entitled to do so providedthat they do not violate the minimum statutory requirement relating to notice: seeMachtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at pp. 998-1002.2012 ONCA 425 (CanLII)[26] Establishing a pre-determined period of notice in the contract ofemployment has certain distinct advantages. Most notably, it provides certainty.From the employer’s perspective, it has the advantage of “capping” the period ofreasonable notice that a court might otherwise award in a suit for wrongfuldismissal. Likewise, from the employee’s perspective, it ensures a guaranteedentitlement that may be greater than that which a court would award undercommon law. For both parties, pre-determining the period of notice avoids theneed for litigation to assess notice upon termination.[27] The question raised on appeal is this: when an employment agreementfixes the period of notice but makes no specific reference to mitigation, does thisattract the obligation to mitigate in the event of a breach in the same way that theobligation attaches to the common law duty to provide reasonable notice or payin lieu thereof?

Page: 11[28] The appellant submits that a contractually established notice period isdistinct from that which arises at common law. Specifically, he argues that whenan employment agreement specifies a period of notice the parties are merelyinserting a term akin to a pre-estimate of damages that would flow from nonperformanceof the agreement. General principles of contract law permit this aslong as the condition is not so oppressive as to constitute a penalty, and is2012 ONCA 425 (CanLII)reasonable in the circumstances: see H.F. Clarke Ltd. v. Thermidaire Corp. Ltd.,[1976] 1 S.C.R. 319, at pp. 330-31. Courts enforce such provisions outside ofthe employment setting, and, significantly, such damage provisions have beenheld not to be subject to a duty to mitigate: see J.G. Collins Insurance AgenciesLtd. v. Elsley Estate, [1978] 2 S.C.R. 916, at pp. 937-38. The appellant arguesthat the same approach ought to be taken in the employment context where acontract specifies the amount of damages payable upon termination.[29] The respondent argues that the idea of liquidated damages is not appositeto the field of employment law. In the respondent’s words, the “underlyingprinciples of damages for wrongful dismissal are inconsistent with the concept ofliquidated damages.” Thus, mitigation applies in the employment context unlessthe parties stipulate to the contrary in the agreement, either expressly or byimplication. The respondent cites as authority the Graham decision relied uponby the application judge.

Page: 12[30] In particular, the application judge relied upon the following passage fromGraham, at para. 53:I agree with the thrust of the cases that hold that theprinciple of mitigation ought to apply to a contract ofemployment that contains a provision that stipulateswhat notice is to be given, or what payment to be madein lieu of notice, if the termination of the contract occurs.Such a stipulation is nothing more than an agreementbetween the parties as to the length of the reasonablenotice to terminate the contract. I see no reason whythere should be any distinction drawn between contractsof employment where the notice period is not stipulatedand those where it is with the result that there would bea duty to mitigate in the former but not in the latter. Ifthat were the case, it would seem to be an unfair resultfor the employer simply because the parties tried toagree in advance on the proper notice and therebyeliminate that as an issue in the event of a dismissal –subject of course to the court’s overriding right todetermine the reasonableness of such an agreement inany given case.2012 ONCA 425 (CanLII)[31] Relying on Graham, the application judge concluded that parties are freeto contract out of the obligation to mitigate, either expressly or by implication, butthe fact that they have agreed on a period of “reasonable notice does not meanthat the obligation to mitigate is ousted by agreement”. A desire for certainty insetting out a specific term of notice does not mean that the parties intended torelieve the appellant of his obligation to mitigate.[32] The application judge summarized the law as set out in Graham and thecases that followed it, in these words:

Page: 14[37] When parties contract for a specified period of notice or pay in lieu they arechoosing to opt out of the common law approach applied in Bardal. In doing so,the parties should not be taken as simply attempting to replicate common lawreasonable notice. The Alberta Court of Appeal explained as follows in Brown v.Pronghorn Controls Ltd., 2011 ABCA 328, 515 A.R. 128, at para. 47:If the contract entitles the employee to payment ofmoney, howsoever calculated, on termination, that rightto that money is contractual. As such, the parties werenot bound to specify an entitlement that is equal or evenanalogous to the quantum of reasonable notice that thecommon law might require if the contract was silent.2012 ONCA 425 (CanLII)Damages for contractually stipulated notice or pay in lieu should not beanalogized directly to damages for common law reasonable notice. The partieshave specifically contracted for something different; it is an error to simply equatethe two.[38] This case demonstrates this point. Here, the maximum entitlement underthe agreement is twelve months, which is approximately half of the upper end ofthe range of damages for wrongful dismissal at common law. The agreementalso limits the damages to a quantum based on the appellant’s base salary.Therefore, the contractually stipulated damages exclude the bonus (valued at upto one-half the appellant’s base salary), car allowance and other benefits fromthe calculation, which would be included in total compensation under the

Page: 15common law (providing, in the case of the bonus, that the trial judge did not makea finding that it was discretionary, at the employer’s option).(2) Payment in lieu of a fixed term of notice, being liquidated damagesor a contractual amount, is not subject to a duty to mitigate[39] The application judge likewise fell into error when, in following Graham, heconcluded that: “[T]he mere fact that the parties have agreed on the period ofreasonable notice does not mean that the obligation to mitigate is ousted by2012 ONCA 425 (CanLII)agreement.”[40] Having concluded that the damages flowing from the breach of acontractually stipulated term of notice are indistinguishable from damages forbreach of reasonable notice at common law, the application judge found that theduty to mitigate applied to the contractual term as it did at common law. In soreasoning, the application judge’s initial error in conflating these two types ofdamages was compounded.[41] Appellate courts have held that mitigation does not apply to liquidateddamages or contractual amounts: J.G. Collins Insurance, at pp. 937-38. SeeHarvey McGregor, McGregor on Damages, 16th ed., (London, UK; Sweet &Maxwell Ltd., 1997), at pp. 322-23.[42] For instance, the language of the English Court of Appeal in Abrahams v.Performing Right Society Ltd., [1995] I.C.R. 1028 is instructive. Hutchison L.J.,

Page: 16addressing the issue of a contractually fixed entitlement to damages in wrongfuldismissal, stated at pp. 1040-41:[T]he concept of a duty to mitigate is entirely foreign to aliquidated damage claim, the whole object of which Itake to be to fix a certain sum to be paid irrespective ofthe actual damage suffered by reason of the breach.How could it be right to hold a plaintiff, who can showthat his actual damage is greater, to the stipulated sum,but permit an employer who can show that it is less totake advantage of that fact? Why should such anobviously unfair and inconsistent approach be approvedwhen it is open to the additional criticism that to allow itexposes the parties to the risk, expense and uncertaintyof litigation the avoidance of which is to be presumed tobe one of the principal reasons for their stipulating forliquidated damages?2012 ONCA 425 (CanLII)...It seems to me that, as a matter of principle, wherethere is a liquidated damage clause which is valid ...there is no room for arguments on mitigation ofdamages, a concept relevant only in cases wheredamages are at large. [Emphasis in the original.]I note in passing that the respondent’s assertion that Abrahams is in “directconflict” with this court’s decision in Taylor v. Brown (2004), 73 O.R. (3d) 358(C.A.), is misplaced. Among other things, Taylor concerned the relationshipbetween common law reasonable notice and pay in lieu of common lawreasonable notice. It did not purport to address situations where notice and payin lieu are contractually stipulated.

Page: 17[43] In Mills v. Alberta (1986), 46 Alta. L.R. (2d) 157 (C.A.), the Alberta Court ofAppeal dealt with a contract that provided for six months’ notice or payment inlieu of notice upon termination. The court held that no duty to mitigate applied.Prowse J.A., writing for a unanimous court, stated at p. 160:Six months without notice is a period which, dependingupon the circumstances, may be more or less than anemployee in the private sector might be awarded asdamages for wrongful dismissal. To avoid such litigationthe contract provides for six months’ notice or sixmonths’ salary in lieu of notice. This is a contractualright to salary and not damages that the employee relieson when he is dismissed “with or without reasons”. Assuch, it is not in my opinion subject to any duty on thepart of the respondent to mitigate his loss.2012 ONCA 425 (CanLII)[44] The British Columbia Court of Appeal was confronted with a fixed termseverance clause in Philp v. Expo 86 Corp. (1987), 45 D.L.R. (4 th ) 449. On theissue of mitigation, Lambert J.A. stated at pp. 461-62:If Mr. Philp had been properly dismissed, he would havehad no obligation to mitigate his loss. He was absolutelyentitled to the contractual payment, without any offsetfor the contingency of obtaining work in the future. Hewould have received the payment in fulfillment of hiscontractual entitlement and not as damages for thebreach of that entitlement.[45] The Nova Scotia Court of Appeal in Boutcher v. Clearwater Seafoods Ltd.Partnership rejected the notion that a stipulated amount of damages was justanother formulation of Bardal damages at common law and went on to reject the

Page: 18application of mitigation: 2010 NSCA 12, 288 N.S.R. (2d) 177, leave to appeal toS.C.C. refused, [2010] S.C.C.A. No. 144. Fichaud J.A. stated, at para. 61:[A]rticle 19 prescribed a fixed $25,000 to fully and finallysettle Clearwater’s obligations under the employmentcontract. Nothing in the contract varied that sum basedon any factors, such as those summarized in Bardal v.Globe & Mail Ltd …. that affect the calculation ofreasonable notice. As “reasonable notice” is irrelevant, itwould be incongruous to deduct the employee’s actualearnings during a period of hypothetical reasonablenotice. Nothing … varied the $25,000 based on actualor potential earnings of the employee after hisdismissal…. Rather article 19 shows an intent that afixed $25,000 buys closure. Opening a dispute of theemployee’s actual or potential earnings for an ongoingindeterminate period is the opposite of closure.2012 ONCA 425 (CanLII)[46] The respondent argues that Boutcher is distinguishable on the ground thatit specifies a fixed amount of pay as opposed to a sliding scale. I disagree.There is no material difference whether the quantum is fixed or readily calculablefrom the terms of the agreement: see Abrahams, at pp. 1038-40. Both methodsprovide for a stipulated benefit. Moreover, in my view, neither method provides abasis for implying a term to diminish the benefit which has been agreed upon, asthe Alberta Court of Appeal explained in Mills.[47] The underlying rationale was expanded upon by the Alberta Court ofAppeal in Brown, at para. 48:Some employees may be able to negotiate a richgolden parachute on involuntary termination withoutcause which enormously exceeds what the common law

Page: 19might order by way of reasonable notice. It would nothave much logic to say that such a clause ‘mitigates’against the common law damages as such a clausereplaces the common law right in the first place. Theemployer could not claim mitigation or failure to mitigateagainst that contracted for sum of money. The employerhas not waived a damages response. The employer hasmade a covenant.[48] Moreover, it is irrelevant for the purpose of my analysis whether such asum amounts to liquidated damages or a contractual amount. As Abrahams2012 ONCA 425 (CanLII)makes clear, at p. 1041, mitigation applies in neither case: “I consider theplaintiff’s claim is for a contractual sum due and that therefore no question ofmitigation arises, and that if, as the defendant contends, it is for liquidateddamages, the same conclusion follows.”[49] Finally, by adopting the approach in Graham as the law, the applicationjudge found there to be a presumption that mitigation was applicable, requiringan explicit contractual term to negate a duty to mitigate. As pointed out above,the legal underpinnings for this conclusion are flawed in that, because thedamages are liquidated, a duty to mitigate does not automatically attach. Thus,while it is indisputable that the parties could have specifically agreed thatmitigation did apply, no presumption exists in law necessitating that it must becontracted away expressly.[50] The respondent submits that the decisions of this court in Wronko v.Western Inventory Service Ltd., 2008 ONCA 327, 90 O.R. (3d) 547, addendum,

Page: 202008 ONCA 479, 91 O.R. (3d) 447, leave to appeal to S.C.C. refused, [2008]S.C.C.A. No. 294, and Soye v. Corinthian Colleges Inc., 2009 ONCA 297, arebinding authority on point and must be followed. I disagree. These decisions donot decide the issue before the court on this appeal.(3) Concerns regarding an employee’s “golden parachute” or anypotential unfairness to the employer are without merit[51] The respondent raises the spectre of the appellant receiving a double2012 ONCA 425 (CanLII)payment, which they refer to pejoratively as a “golden parachute”. To be clear,there is no “double payment” in the sense that the respondent is paying twice.Nor is the entitlement under the Employment Agreement “golden” as it restrictsdamages to a maximum of 12 months of base salary, and does not include thebonus or other benefits.[52] It is noteworthy that in the sports, entertainment and senior managementfields it is commonplace for such contractual provisions to not be subject tomitigation. Where the rich, famous, and powerful are involved, there is nosuggestion that such payments are unfair to the other contracting party, evenwhere there is, in effect, total mitigation of the loss. A contract is a contract, andit is expected that it will be honoured. Nothing short of this can be countenancedwhere the terminated employee is less privileged.[53] The words of the Alberta Court of Appeal in Brown, at para. 47, bearrepeating:

Page: 21If the contract entitles the employee to payment ofmoney, howsoever calculated, on termination, that rightto that money is contractual. As such, the parties werenot bound to specify an entitlement that is equal or evenanalogous to the quantum of reasonable notice that thecommon law might require if the contract was silent …Some employees may be able to negotiate a richgolden parachute on involuntary termination withoutcause which enormously exceeds what the common lawmight order by way of reasonable notice. It would nothave much logic to say that such a clause ‘mitigates’against the common law damages as such a clausereplaces the common law right in the first place.2012 ONCA 425 (CanLII)[54] Graham raises similar concerns regarding the potential for unfairness tothe employer that could arise if a duty to mitigate were not imposed on theemployee. Graham states, at para. 53, that to not require an employee tomitigate when a fixed term of notice is agreed to in the contract “would seem tobe an unfair result for the employer simply because the parties tried to agree inadvance on the proper notice”. I do not share this concern for a number ofreasons.[55] It is worthy of emphasis that, in most cases, employment agreements aredrafted primarily, if not exclusively, by the employer. In my view, there is nothingunfair about requiring employers to be explicit if they intend to require anemployee to mitigate what would otherwise be fixed or liquidated damages. Infact, what is unfair is for an employer to agree upon a fixed amount of damages,and then, at the point of dismissal, inform the employee that future earnings willbe deducted from the fixed amount.

Page: 22[56] Notably, the concern expressed in Graham seems to disregard the oftobserveddisparity in bargaining power between employee and employer. Onthis point, Iacobucci J. endorsed the following excerpt from K. Swinton, “ContractLaw and the Employment Relationship: The Proper Forum for Reform” in BarryReiter and John Swan, eds., Studies in Contract Law (Toronto: Butterworths,1980) 357, at p. 363, in both his decisions in Wallace v. United Grain Growers2012 ONCA 425 (CanLII)Ltd., [1997] 3 S.C.R. 701, at p. 741, and Machtinger, at p. 1003:[T]he terms of the employment contract rarely resultfrom an exercise of free bargaining power in the waythat the paradigm commercial exchange between twotraders does. Individual employees on the whole lackboth the bargaining power and the informationnecessary to achieve more favourable contractprovisions than those offered by the employer,particularly with regard to tenure.(See also Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp.1051-52.) Moreover, in contrast to the concerns about fairness noted in Graham,the excerpt from Hutchison L.J.’s reasons in Abrahams, above, emphasizes thepotential unfairness to employees inherent in the approach proposed in Graham.(4) Application to the Present Case[57] In this appeal, the clear goals of the parties in entering into theEmployment Agreement, which designates a stipulated sum owed upontermination without cause, were certainty and closure.Interpreting theagreement so as to leave mitigation in play is contrary to these objectives.

Page: 23[58] Indeed, the complete release contained in para. 33 of the EmploymentAgreement dispels any doubt that certainty and finality were the respondent’sgoals. The release makes clear that the respondent intended that the terms ofthe contract would preclude resort to the courts.[59] Despite the care that was taken to prepare an agreement that would avoida dispute over entitlement, the Employment Agreement is silent regarding2012 ONCA 425 (CanLII)mitigation. In my view, the parties did not intend that mitigation would come intoplay in the termination of the appellant.(5) Conclusion[60] In summary, the application judge erred in deciding that an agreementspecifying a fixed notice period, in the event of dismissal without cause, was akinto damages in lieu of reasonable notice at common law. This mischaracterizationled him to wrongly conclude that there was a presumption that the appellant hada duty to mitigate and that, since the agreement was silent in respect ofmitigation, the presumption had not been rebutted. On this basis, he determined– wrongly in my view – that the parties intended, at the point of contracting, thatmitigation would be applicable to the calculation of damages upon termination.[61] Although decisions of trial courts appear to go both ways on the issue inthis appeal, the preponderance of appellate jurisprudence supports the view that,where an employment agreement contains a stipulated entitlement on

Page: 24termination without cause, the amount in question is either liquidated damages ora contractual sum. Either way, mitigation is irrelevant. This conclusion is basedon the following reasoning:• By contracting for a fixed sum the parties have contracted out of the Bardal“reasonable notice” approach or damages in lieu thereof. There is nomaterial difference whether the quantum contracted for is fixed or readily2012 ONCA 425 (CanLII)calculable from the terms of the agreement.• By specifying an amount, the stipulated quantum is characterized as eitherliquidated damages or a contractual sum.• Mitigation is a live issue at law only where damages are at large, i.e.damages in lieu of reasonable notice. Mitigation is not applicable if thedamages are either liquidated or a contractual sum.• It would be unfair to permit an employer to opt for certainty by specifying afixed amount of damages and then allow the employer to later seek toobtain a lower amount at the expense of the employee by raising an issueof mitigation that was not mentioned in the employment agreement.• It is counter-intuitive and inconsistent for the parties to contract forcertainty and finality, and yet leave mitigation as a live issue with theuncertainty, lack of finality, risk and litigation that would ensue as aconsequence.

Page: 25• Thus, where an agreement provides for a stipulated sum upon terminationwithout cause and is silent as to the obligation to mitigate, the employeewill not be required to mitigate.• Moreover, a broad release in an employment agreement, as here,demonstrates an intention to avoid resort to the courts, confirms a desirefor finality, and bolsters a finding that the parties intended that mitigation2012 ONCA 425 (CanLII)would not be required unless the agreement expressly stipulates to thecontrary.[62] I find the decisions of the appellate courts referred to in these reasons tobe persuasive and I adopt their reasoning. From a practical standpoint, it isworth repeating that if parties who enter into an employment agreementspecifying a fixed amount of damages intend for mitigation to apply upontermination without cause, they must express such an intention in clear andspecific language in the contract.E. DISPOSITION[63] I would allow the appeal and set aside the decision of the applicationjudge. A declaration will issue that the appellant is entitled to the amount ofsalary in lieu of notice specified in the Employment Agreement notwithstandingany salary earned from his new employer.

Page: 26[64] The costs on the application shall be reversed in favour of the appellantand the appellant shall have his costs of the appeal fixed in the amount of$6,946.31, inclusive of taxes and disbursements.Released: June 21, 2012 “WKW”“W.K. Winkler CJO”“I agree Janet Simmons J.A.”“I agree E.A. Cronk J.A.”“I agree Robert P. Armstrong J.A.”“I agree David Watt J.A.”2012 ONCA 425 (CanLII)

IN THE MATTER OF AN ARBITRATION UNDER THELABOUR RELATIONS CODE of BRITISH COLUMBIA, R.S.B.C. 1996 c.244BETWEEN:LAFARGE CANADA(Coquitlam Sand and Gravel)AND: TEAMSTERS, LOCAL UNION NO. 213(the “Employer”)(the “Union”)2011 CanLII 85129 (BC LA)(Ken Keen Termination Grievance)ARBITRATOR:David C. McPhillipsCOUNSEL FOR THE EMPLOYER:Gregory J. HeywoodCOUNSEL FOR THE UNION:Bryan SavageDATES AND PLACE OF HEARINGS: August 23 and 24, 2011Vancouver, BCDATE OF AWARD: September 12, 2011

The parties agree this Board has the jurisdiction to determine this matter. TheUnion has grieved the discharge of Ken Keen from his employment at Coquitlam Sandand Gravel on August 23, 2010 for issuing a death threat against another employee.FACTS:Coquitlam Sand and Gravel is a subsidiary of Lafarge Canada and its operationsare on Pipeline Road in Coquitlam, B.C. The Plant Manager is Corey Mutter and theAssistant Manager is Phil Wallace. There are 27 employees at the site and the membersof the bargaining unit are represented by Teamsters Local Union No. 213 for whichChuck Symons is the Business Agent.Ken Keen, the Grievor, is 50 years of age and had been an employee withCoquitlam Sand and Gravel for just over two years at the time of his discharge. He hadpreviously worked as a truck driver but then obtained an excavator operator ticket andwas hired by the Employer. During his employment at Coquitlam Sand and Gravel, hereceived a written warning and a three day suspension for improper operation of theequipment.Mr. Keen operated the “long reach” excavator and worked primarily on theafternoon shift (2:00 p.m. to 10:00 p.m.) until May of 2010. At that point he wastransferred to the graveyard shift (8:00 p.m. to 6:00 a.m.), although he testified he did notlike working ten hour shifts (two hours at overtime) and had arranged with managementto come in at 9:00 p.m. or 10:00 p.m. on some days.In late July, 2010, Mr. Keen went off on sick leave for three weeks and thenreturned to work on Monday, August 16, 2010. The events which led to the discharge ofMr. Keen occurred the following Friday afternoon (August 20) during a meeting in Mr.Mutter’s office. To put what occurred in that meeting into context, some background ishelpful.The first point is that the long reach excavator was being used on the day shiftduring the week of August 16 by an employee, Tanner Gunn, who was substituting forthe regular operator who was on vacation. Mr. Keen felt the cab of the excavator wasbeing left in a messy condition and the tracks were not being properly cleaned by Mr.2011 CanLII 85129 (BC LA)2

Gunn. This upset Mr. Keen and led him to attend at the plant around 3:00 p.m. onAugust 20, five hours before his shift was to commence.The other important piece of background information has to do with Mr. Keen’srelationship with Rod Birch, who was the loader operator on the afternoon shift. Prior toMay, 2010, Mr. Birch and Mr. Keen worked on the same shift although for 80 to 90percent of the time, they worked in different areas of the site. However, on occasion, Mr.Keen would have to perform excavation duties near the plant itself which is where Mr.Birch operated the loader.Mr. Birch, who is a member of Local 213 and appeared pursuant to a summons,testified that he hardly ever spoke with Mr. Keen and only very rarely even saw himduring the afternoon shift. However, Mr. Birch testified he was aware that Mr. Keenapparently had some issue with him at one point quite some time ago and so Mr. Birchgenerally avoided Mr. Keen.The Grievor testified that during the two years that both of them were on theafternoon shift he felt Mr. Birch drove the loader at too fast a speed, and, on occasion,would come within the radius of the swing arm radius of the long reach excavator whichcould be very dangerous for Mr. Birch. Mr. Birch testified he was not aware of comingclose to Mr. Keen on even one occasion over that period and added that “I am verycareful”. He also stated Mr. Keen had never talked to him about any such concerns. Mr.Keen, who kept notes in a book, testified that he had also on occasion observed Mr. Birchparked and observing Mr. Keen while he worked. Mr. Keen’s notes indicate there wasone occasion in November, 2009 where he had made such a record. Mr. Birch deniedthat he had ever stopped his own work to watch Mr. Keen.Mr. Keen testified that he had complained about Mr. Birch to the leadhands and toMr. Mutter but nothing was ever done. For his part, Mr. Mutter testified that each timehe had received a complaint from Mr. Keen, it had been investigated and proved to begroundless. Mr. Mutter testified there had never been any corroboration for any of theallegations made by Mr. Keen and that, in his view and that of others, Mr. Birch was anefficient and safe loader operator.So with that background in place, we return to the afternoon of August 20, 2010.As indicated, at 3:00 p.m. Mr. Keen arrived five hours early at the plant and went to see2011 CanLII 85129 (BC LA)3

Mr. Wallace. The evidence is that Mr. Keen did not know Mr. Wallace very well as thelatter had only been transferred to the Coquitlam Sand and Gravel operation in June 2010after which time the Grievor had worked on the night shift and then was off on sick leavefor three weeks.Mr. Wallace and Mr. Birch both testified they met in Mr. Wallace’s office forabout fifteen minutes. It is agreed that the discussion between the two began with Mr.Keen explaining about the messy cab and uncleaned tracks on the excavator. Mr.Wallace indicated to Mr. Keen that he was aware of the problem as he had read the logbook which Mr. Keen had completed detailing these concerns and Mr. Wallace agreedthat Mr. Keen had a legitimate complaint in that regard.Mr. Wallace testified that then the discussion “somehow turned to Mr. Birch”.Mr. Wallace testified Mr. Keen suddenly became very agitated and stated he hadconcerns with Mr. Birch’s unsafe operation of the loader although there was noelaboration by Mr. Keen about specific incidents. (Mr. Wallace testified that hepersonally had watched Mr. Birch operate the loader on “lots of occasions” and had noissue with his approach to safety”.)Mr. Keen then made three complaints to Mr. Wallace, specifically that Mr. Birchwanted to take his job as the excavator operator, that Mr. Birch was trying to become theleadhand on the afternoon shift and that Mr. Birch had been watching Mr. Keen while hewas working.Mr. Wallace testified that he felt these concerns about Mr. Birch wanting Mr.Keen’s job or to be the leadhand would be easy to resolve as Mr. Wallace knew Mr.Birch was not interested as he wanted to become the loader operator on the day shift.Moreover, Mr. Birch was not qualified to operate the excavator and, in any event, theseare posted positions under the Collective Agreement and employees cannot simplydisplace other individuals who have the right to these jobs.Mr. Keen testified that he brought up these issues about Mr. Birch with Mr.Wallace because “I wanted to explain to Phil the issues I had with Rod Birch” and that “Iwanted Phil to know about the past and the future”. Mr. Keen testified at the hearingthat, although he was not at all specific with Mr. Wallace, he was concerned that Mr.2011 CanLII 85129 (BC LA)4

Birch was constantly “driving into my swing range” and that he drove the loader “at ahigh rate of speed”.Mr. Keen also testified that he had concluded Mr. Birch wanted his job becausehe had heard Mr. Birch make a comment on the radio in May 2010. Mr. Keen alsoindicated in his testimony, however, that the notion that Mr. Birch wanted his job was notreally his concern. Although that is was he stated to Mr. Wallace on August 20, what hemeant to address was that he was concerned Mr. Birch might try to drive the excavatorbetween 6:00 p.m. (when the day shift operator left) and either 8:00 or 10:00 p.m. whenMr. Keen came to work.After the discussion between Mr. Wallace and Mr. Keen had gone on for roughlyfifteen minutes, Mr. Mutter returned to his office next door and he joined in theconversation. There is agreement on some things which occurred then but there isdisagreement about others. It is agreed that Mr. Wallace told Mr. Mutter in front of theGrievor about Mr. Keen’s three concerns about Mr. Birch wanting his excavation job,Mr. Birch wanting to be leadhand and Mr. Birch on several occasions observing Mr.Keen while he worked. Mr. Mutter then indicated that these matters could be easilycleared up by having Mr. Birch join them. Mr. Mutter radioed for Mr. Birch to come upto the office and Mr. Keen testified he neither agreed or disagreed with the suggestion ofMr. Birch coming to the office.Mr. Birch arrived at Mr. Mutter’s office and there is some disagreement aboutwhere everyone was located. Mr. Birch, Mr. Wallace and Mr. Mutter each testified thatthe four of them were seated with Mr. Birch sitting right beside Mr. Keen across fromMr. Mutter, who was behind his desk. Mr. Mutter testified they had to bring an extrachair so that everyone could sit down. However, Mr. Keen testified he never sat down atany time but rather stood in the doorway about ten feet away from where Mr. Birch wasseated.It is agreed that Mr. Mutter explained to Mr. Birch the three concerns that hadbeen raised by Mr. Keen and Mr. Birch then responded to each of them. He indicatedthat he had no desire to be either the excavator operator or leadhand (there was already avery good leadhand on the shift) and also stated that he had never stopped to watch Mr.Keen operate his machine.2011 CanLII 85129 (BC LA)5

Mr. Mutter and Mr. Wallace each testified that it was obvious at that point thatMr. Keen was very agitated and was becoming emotional and volatile. Mr. Mutter andMr. Wallace testified that, at one point, Mr. Keen stood up and Mr. Mutter had to ask himto sit back down which he immediately did.Mr. Wallace and Mr. Mutter testified that when Mr. Birch had finished talking,Mr. Mutter stated that he hoped that had cleared up the matter to which Mr. Keenresponded twice “we agree to disagree”. Mr. Keen testified that he has no recall of thosecomments.It is at this point that the alleged death threat was made. Mr. Birch, Mr. Wallaceand Mr. Mutter all testified that Mr. Keen stood up and was within a foot of Mr. Birchand pointed his index finger directly at him. Mr. Keen testified he was ten feet away andnever pointed his finger at Mr. Birch.There are very slight variations in the recall of each witness as to precisely whatwords Mr. Keen used. Mr. Birch testified that Mr. Keen called him a fool and then stated“I could kill you six times over”. Mr. Wallace’s recollection is that that statement was“You fool! Do you know I could have killed you six times by now”. Mr. Mutter recallsthe comment as “you fool, I could have killed you six times by now”. Mr. Keen testifiedhe stated “you fool, I could have almost killed you six times”.After Mr. Keen’s comment, Mr. Mutter jumped up and indicated to Mr. Keen thathe could not make comments like that and asked him to leave the property. Mr. Mutterthen led Mr. Keen out of the office. When they got to the exit of the building Mr. Keenturned and asked Mr. Mutter if he was working that night. Mr. Mutter testified he said“no”. Mr. Keen testified Mr. Mutter said “yes” but then called him later at home toindicate Mr. Keen should not come to work.Mr. Mutter, Mr. Wallace and Mr. Birch each testified they immediately had areaction to what each felt had been a death threat against Mr. Birch by Mr. Keen. Mr.Birch testified he was “pretty shocked” and in disbelief and it was clear to him the wordswere intended as a threat against him. Mr. Wallace testified it was clear from thedelivery, the tone and the demeanour of Mr. Keen that this statement was meant as athreat. Mr. Mutter testified that he perceived the language as a threat based on the wayMr. Keen was standing, the shaking of the finger, the body language and the tone of2011 CanLII 85129 (BC LA)6

voice. Mr. Mutter also indicated that it was clear Mr. Keen was agitated and was veryemotional.All three categorically denied during each of their testimony that Mr. Keen couldhave meant the words as simply a comment relating to a safety concern.After Mr. Mutter returned to the office, he and Mr. Wallace spoke with Mr. Birchfor a while and then the latter returned to work after about thirty minutes. Mr. Mutter andMr. Wallace called the Union and indicated Mr. Keen would have to be terminated. Theythen phoned the Company’s Human Resources Department and indicated what hadhappened.There was a further call with the HR Department on Monday morning followingwhich Mr. Mutter called Mr. Keen to inform him he was being terminated. A terminationletter was prepared and provided to Mr. Keen and it stated, in part:As discussed with you today, a decision has been made to terminate youremployment with Lafarge Canada Inc., effective immediately.2011 CanLII 85129 (BC LA)You are being terminated for cause. As an employee of Lafarge Canada Inc.,the expectation is that all employees conduct themselves in a manner whichupholds a regard for business professionalism. Your threatening behaviour andverbal utterances on August 20, 2010 showed a complete disrespect for yourfellow colleagues and a disregard for the basic elements of business conduct andprofessionalism. The Company in no way tolerates this type of behaviour andafter careful consideration your employment is being terminated effectiveimmediately. This decision is irrevocable.Any money owing to you for work performed will be paid to you less statutorydeductions on your final payroll cycle…During his testimony the Grievor indicated that in his discussion with Mr.Wallace he had been very vague about his actual concerns with Mr. Birch. He stated hewas not clear in his remarks that Mr. Birch was after his job; his real issue had beenwhether Mr. Birch was operating the excavator during the 2 – 4 hour gap between the endof the day shift and the time Mr. Keen commenced work. He also agreed that when Mr.Wallace summarized Mr. Keen’s concerns to Mr. Mutter after the latter arrived at theoffice, Mr. Keen never corrected Mr. Wallace. The Grievor also agreed his alleged safetyconcerns were mentioned once and only very briefly at the beginning of his conversationwith Mr. Wallace.With respect to the conversation in Mr. Mutter’s office after Mr. Birch arrived,Mr. Keen testified that he could not remember the rest of the conversation after Mr.7

Mutter spoke. He testified he was agitated and “did not expect anything to be done”. Hetestified he does remember Mr. Birch making his denials and then Mr. Keen said “youfool, I could have killed you almost six times”. Mr. Keen stated that when he made thatcomment he was “very frustrated”. He added in his evidence that “I am a very emotionalperson and wear it on my sleeves” and “that time was very emotional”. He testified thathis comment to Mr. Birch was in reference to safety concerns and, specifically, to whenMr. Birch drove the loader into the swing arm range of the excavator and he had notmeant to threaten Mr. Birch. When questioned about why he had not mentioned the issueof his safety concerns in front of Mr. Mutter and Mr. Birch, Mr. Keen stated “it was clearthey would not listen to me”.Under cross-examination, Mr. Keen stated he always tries to avoid confrontationsbut agreed with Employer Counsel that his “outburst” was wrong and added that it was“because of the way I said it”. The Grievor also acknowledged that his comment couldhave been perceived as a threat and that it would make people “uncomfortable” and thatthere is “no place for that in the workplace”. When asked whether he had ever clarifiedhis remarks or apologized to management or to Mr. Birch, Mr. Keen indicated he had notand repeated that he did not like confrontations. He did agree, however, that he hadcertainly had an opportunity to apologize if he had wished to do so.At one point, somewhat later in his testimony, Mr. Keen stated that he actuallydid tell Mr. Wallace the next Monday or Tuesday at the park that he had not intended theremark as a threat but he then subsequently resiled from that position. Mr. Keen alsoadamantly denied that he ever pointed his finger at Mr. Birch in the meeting andreiterated he was ten feet away from him.The Grievor also agreed that he had never filed any reports or filled out anyincident reports about the “near misses”, which is what is expected by the Company. Mr.Keen also agreed with Employer Counsel that there had never been any corroboration ofhis safety complaints and that he was not aware of anyone who had ever observed unsafeacts or speeding by Mr. Birch. Mr. Keen also admitted he had never raised any of hissafety concerns in the regular shift meetings.The Grievor also acknowledged that certain parts of his testimony about themeeting in Mr. Mutter’s office on August 20 were directly contradicted by the three other2011 CanLII 85129 (BC LA)8

individuals who were in the room and Mr. Keen asserted that they were either wrong orlying.When asked in cross-examination why he brought up these issues about Mr. Birchwith Mr. Wallace on August 20 when he had not even worked on the same shift with Mr.Birch for the three previous months, Mr. Keen stated that he had “no reason”. TheGrievor also agreed he had no complaints about Mr. Birch which were “current” at thetime but he admitted he did not make that clear to Mr. Wallace. Mr. Keen was also askedabout his direct testimony that he does not want to be confrontational and that he tries to“avoid conflict”. Employer Counsel put to him that is precisely what he did in going tosee Mr. Wallace on August 20 and that he was “trying to get Rod in trouble”. Mr. Keenagreed that was the case.Mr. Keen testified in direct that he wanted to return to work with the Employer.Under cross-examination it was put to the Grievor by Employer Counsel that he was stillof the view that Mr. Mutter was not a safety conscious manager, that the leadhands werenot observant and did not deal with safety issues and that Mr. Birch was a particularlyunsafe employee. Mr. Keen agreed with that statement and concurred that if he returnedto work it would be very tense and that it would “not be a recipe for success”.There was also evidence relating to Mr. Keen’s attendance at a park across thestreet from the entrance to the plant over the few days following his termination. Thepark is used for flying model airplanes and Mr. Keen testified he often went there forenjoyment. On the Monday evening after the Grievor’s termination, Mr. Wallace wasleaving work and he saw Mr. Keen standing by his truck on the side of the road besidethe park and across from the plant entrance. Mr. Wallace approached Mr. Keen and thelatter indicated he was waiting to talk to the shop steward whose shift was about to end.Mr. Wallace testified he was concerned that Mr. Keen had been waiting near theplant. Mr. Wallace then saw the Grievor standing by his truck again after work onTuesday. He approached Mr. Keen and suggested to him it may be better if he was notthere and hung out elsewhere. Mr. Wallace testified Mr. Keen replied that “I have friendsthat fly planes”. Mr. Keen did not recall those comments but could not deny they mayhave been made. The evidence is the Company hired a security guard to attend at theplant for that week and also contacted the Coquitlam R.C.M. P. Mr. Wallace testified he2011 CanLII 85129 (BC LA)9

saw (or was told by the crew) Mr. Keen there on a few occasions over the next weeks andhis attendance became more sporadic over time. Mr. Birch testified that he had alsoobserved Mr. Keen there on a number of occasions “watching us come in and out”. Mr.Birch testified Mr. Keen on each occasion was by his truck looking at the plant entranceand was not in the park itself.DECISION:In discipline cases, an arbitration board must ask itself three questions:1. Has the employee given and just and reasonable cause for some form ofdiscipline by the employer?2. If so, was the discipline imposed an excessive response in all of thecircumstances of the case?3. Finally, if the discipline is considered excessive, what alternative measureshould be substituted as just and equitable?2011 CanLII 85129 (BC LA)(Wm. Scott and Co. Ltd. and Canadian Food & Allied Workers Union, Local P-162, [1977] 1 Can L.R.B.R. 1 (B.C.L.R.B.).Turning to the first question, the arbitral jurisprudence is clear that death threatsare an extremely serious matter and termination is generally the consequence: BrewersWarehousing Co. Ltd., 6 L.A.C. (3d) 104 (Egan); Greater Vancouver Regional District,147 L.A.C. (4 th ) 319 (Sullivan); Labatt Brewing Co., [2002] B.C.C.A.A.A. No. 414(McPhillips); City of Vancouver (Medeiros Grievance), 148 L.A.C. (4 th ) 406(McPhillips); City of Vancouver (Forber Grievance), [2003] B.C.C.A.A.A. No. 285(Moore); Western Star Trucks Inc., [1998] B.C.C.A.A.A. No. 395 (Blasina); AlcanSmelters and Chemicals Ltd., 135 L.A.C. (4 th ) 226 (Hope). There are also statutoryprovisions requiring employers to maintain a workplace free of violence: Bill C-45: AnAct to Amend the Criminal Code of Canada; Workers Compensation Act of BritishColumbia.In this case, the Union acknowledges that in these circumstances, if it is found bythe Board that a death threat was made by Mr. Keen against Mr. Birch, termination wasthe appropriate response on the part of the Employer.The first point in the analysis of whether the Grievor gave the Company cause fordiscipline is to determine whether objectively the words used by Mr. Keen could be seen10

as a death threat. For that purpose, the analysis will be undertaken based on theconclusion that what Mr. Keen said on April 20 to Mr. Birch was “You fool. I could havekilled you six times”. I reject for reasons detailed below that Mr. Keen included the word“already” in his remark.In my opinion, the words used by the Grievor reasonably bear the inference thatwhat the Grievor meant was that he could have killed Mr. Birch on a number ofoccasions in the past and could do so in the future. Granted, the words could also beparsed as a statement of past reality and I will return to that possibility later.Further, each of the three people in the room with the Grievor at the time thecomment was made testified that he clearly perceived it that way given the context inwhich the remark was made as well as the tone, demeanour and body language of theGrievor. Moreover, their reaction in the office at the time indicates that is certainly howthey took it. Mr. Mutter immediately stated to Mr. Keen that those words were notappropriate and he jumped up and escorted Mr. Keen from the building.Another reason for the conclusion that the words can be viewed objectively as athreat is that Mr. Keen himself acknowledge in cross-examination that they could betaken that way and he agreed it was inappropriate for him to have spoken in that mannerat the workplace.As a result of the above factors, it is concluded on the balance of probability thatthe words used by Mr. Keen would “properly be perceived as a threat”: Ajax PickeringTransit Authority, 123 L.A.C. (4 th ) 151 (Craven); Alcan Smelters and Chemicals Ltd.,supra.The next issue is the subjective intent on the part of the Grievor and whether thecomment made by Mr. Keen on August 20 was actually intended by him as a death threatagainst Mr. Birch. In addressing that question, an assessment of credibility becomescritical. In that regard, the comments by the British Columbia Court of Appeal in itsdecision in Faryna v. Chorny, [1952] 2 D.L. R. 354, at pp. 356 – 7, are helpful:If a trial Judge’s finding of credibility is to depend solely on which person hethinks made the better appearance of sincerity in the witness box, we are leftwith a purely arbitrary finding and justice would then depend upon the bestactors in the witness box. On reflection it becomes almost axiomatic that theappearance of telling the truth is but one of the elements that enter into thecredibility of the evidence of a witness. Opportunities for knowledge, powers ofobservation, judgment and memory, ability to describe clearly what he has seen2011 CanLII 85129 (BC LA)11

and heard, as well as other factors, combine to produce what is called credibility… A witness by his manner may create a very unfavourable impression of histruthfulness upon the trial Judge, and yet the surrounding circumstances in thecase may point decisively to the conclusion that he is actually telling the truth. Iam not referring to the comparatively infrequent cases in which a witness iscaught in a clumsy lie.The credibility of interested witnesses, particularly in cases of conflict ofevidence, cannot be gauged solely by the test of whether the personaldemeanour of the particular witness carried conviction of the truth. The testmust reasonably subject his story to an examination of its consistency with theprobabilities that surround the currently existing conditions. In short, the realtest of the truth of the story of a witness in such a case must be its harmony withthe preponderance of the probabilities which a practical and informed personwould readily recognize as reasonable in that place and in those conditions.In that regard, there are a number of difficulties with many aspects of theevidence provided by Mr. Keen during the hearing. For one thing, the Grievor testifiedthat he could not really remember what was said after the point at which Mr. Mutterstopped talking in the meeting on August 20 and Mr. Birch began his explanations. Onthat basis alone, the reliability of his evidence is compromised. Moreover, on verycritical points, his evidence is at odds with the three other people who were in the roomon August 20. Even with respect to where they were physically situated in Mr. Mutter’soffice, Mr. Mutter, Mr. Wallace and Mr. Birch all were adamant that Mr. Keen wasseated right beside Mr. Birch and that at one point Mr. Mutter had even asked him to sitback down. On the other hand, the Grievor stated he was ten feet away, which wasphysically impossible given the size of the office.As well, the areas where the Grievor’s testimony differs most dramatically relateto such critical issues as where he was sitting, whether he shook his finger and whetherhe included the word “already” in his statement. On more benign matters, the Grievor’sevidence does not differ significantly from that of the others. It is on every key fact thatpoints to his remark being a threat that the Grievor disagrees with the evidence of theother three individuals. The inevitable conclusion from this is that Mr. Keen was tailoringhis evidence in a self-serving way in an attempt to minimize the possibility that hiscomment could be characterized as a death threat.A final point related to credibility is that, while giving evidence, Mr. Keen madecertain statements and then would back off them when pressed. As an example, heinitially asserted that when he was talking with Mr. Wallace on Monday evening he had2011 CanLII 85129 (BC LA)12

explained to him what he had intended by his comment but he later agreed in histestimony that did not actually happen. Mr. Keen also made a number of statementsduring his evidence that were never put to the Employer witnesses earlier during theirtestimony and that is a further indication that his testimony cannot be relied upon.There are a number of other factors which contribute to serious misgivings aboutMr. Keen’s stated lack of intent to threaten Mr. Birch. Based on all the testimony,including his own, Mr. Keen was emotional and highly agitated and that further supportsthe inference that Mr. Keen likely intended to threaten and intimidate Mr. Birch. This isreinforced by the evidence of Mr. Wallace, Mr. Birch and Mr. Mutter that the Grievor’stone of voice was such that it indicated a death threat was being made.As well, I accept the testimony of Mr. Mutter, Mr. Wallace and Mr. Birch overthat of Mr. Keen and determine that the Grievor was standing over Mr. Birch andpointing his index finger when he made the statement. It is very hard to reconcile Mr.Keen’s assertion that he was simply making a comment about past safety problems whenhe was standing over the top of Mr. Birch and pointing his finger directly at him. Thesephysical gestures add significant support to the likelihood that Mr. Keen was intending tothreaten Mr. Birch: Pacific Inland Resources, [2000] B.C.C.A.A.A. No. 117 (Germaine).Another factor to be weighed is the context of the Grievor’s remark. At the timethe statement was made by Mr. Keen, safety was not even being discussed. Thediscussion was focused on Mr. Keen’s allegations that Mr. Birch wanted his job, wantedto be the leadhand and was monitoring Mr. Keen while he was working, each of whichwas clearly an irritant for the Grievor. Mr. Keen had made only one comment thatafternoon about safety and that was at the beginning of his remarks about Mr. Birch toMr. Wallace in the earlier conversation between the two of them in Mr. Wallace’s office.If Mr. Keen’s comments were meant as a statement of safety concern, they would havebeen “completely out of the blue” and did not flow at all naturally from the conversation.There is also no evidence that there were even “six” specific prior safety incidentsto which the Grievor might have been referring in his statement. It is also not clear as towhat the safety concern would have been at the time as Mr. Keen and Mr. Birch nolonger worked on the same shift and that had been the case for the previous three months.2011 CanLII 85129 (BC LA)13

When viewed in that light, it is far more probable that Mr. Keen’s frustration and angerhad boiled up and caused him to attempt to intimidate Mr. Birch by way of a death threat.Another consideration is that Mr. Keen never corrected Mr. Wallace when thelatter was explaining the Grievor’s concerns to Mr. Mutter or again when Mr. Mutterreiterated them to Mr. Birch. Mr. Keen simply allowed what he now says were his badlystated concerns to Mr. Wallace to remain uncorrected. As a result, it appears that eitherhe is now lying about that or that he was so emotionally upset he was not engaged in theconversation at all. Either conclusion places the reliability of Mr. Keen’s testimony infurther jeopardy.The next relevant factor is the absence of any attempt by Mr. Keen to clarify hisremark. If the Grievor had truly meant the comment as merely one of a concern forsafety, it would be reasonable to have expected him to react to Mr. Mutter’s comment inthe office that the statement was inappropriate and immediately state that there had beenno threat intended. As well, he could have spoken with Mr. Mutter after they left theoffice and were in the process of leaving the building. Again, on the following Mondayand Tuesday, the Grievor spoke twice with Mr. Wallace and he did not take thoseopportunities to attempt to clarify his intention. This lack of any attempt on Mr. Keen’spart to clarify or explain his meaning is a significant indication that he had intended theremark in the meeting on August 20 as a death threat against Mr. Birch: Alcan Smeltersand Chemicals Ltd., supra. To borrow a well-used phrase, Mr. Keen’s silence after theremark was made was deafening.In a similar vein, the Grievor has never shown any remorse. Mr. Keen did notapologize to anyone which should have been the case if he had genuinely felt his remarkhad been misinterpreted. The lack of apology is not being used here as evidence of theabsence of a mitigating factor under the second Wm Scott question, but rather as anindication that Mr. Keen meant the words exactly as they had been taken by Mr. Mutter,Mr. Wallace and Mr. Birch, and that he was content to leave the perception of the threatto linger beyond August 20.In conclusion, based on all the above evidence, I conclude, on the balance ofprobabilities, that Mr. Keen did utter a death threat against Mr. Birch in Mr. Mutter’s2011 CanLII 85129 (BC LA)14

office on August 20, 2010 and, therefore, the first Wm Scott question is answered in theaffirmative.As indicated, it was acknowledged that if it was concluded a death threat had beenmade in this instance, then in all the circumstances of this particular case, terminationwas not an excessive response on the part of the Employer. Therefore, the second WmScott question is answered in the negative.AWARD:For all of the above reasons, the grievance filed by the Union on behalf of Mr.Keen is denied.Dated this 12 th day of September 2011.2011 CanLII 85129 (BC LA)“David McPhillips”___________________________________David C. McPhillipsArbitrator15

IN THE SUPREME COURT OF BRITISH COLUMBIACitation:Between:AndBalogun v. Deloitte & Touche, LLP,2011 BCSC 1314Rashid A. BalogunDate: 20111004Docket: 0730664Registry: Prince GeorgePlaintiff2011 BCSC 1314 (CanLII)Deloitte & Touche, LLPDefendantBefore: The Honourable Mr. Justice N. SmithReasons for JudgmentAppearing on own behalf:Counsel for Defendant:Place and Date of Trial:Place and Date of Judgment:Rashid A. BalogunR.G. NicholsonPrince George, B.C.June 6-10, 13-17, 2011Prince George, B.C.October 4, 2011

Balogun v. Deloitte & Touche, LLP Page 2[1] The plaintiff, who is now 49, worked for approximately eight months as a “taxmanager” in the Prince George office of the defendant, a national accounting firm.He says his employment was terminated and he seeks damages for wrongfuldismissal. The defendant says he voluntarily resigned. The plaintiff also seeksdamages for defamation, which the defendant denies.I. The Employment Contract[2] The plaintiff was licensed as a Certified Public Accountant in the UnitedStates, but had not obtained the equivalent Canadian designation as a CharteredAccountant. In October 2005, he was living in Toronto when he was offered andaccepted the Prince George position. He moved to Prince George to begin work inearly November.2011 BCSC 1314 (CanLII)[3] The plaintiff was introduced to the defendant through an employmentconsultant, but the tax manager position had been advertised on the defendant’snational website. The job description included playing “a key role co-ordinatingteams to provide innovative tax solutions to our clients” and “building andmaintaining client relationships”. The plaintiff testified that the term “manager” isgenerally understood in the accounting field to refer to a person leading a team,supervising all aspects of services to a client and assigning portions of the work tosubordinates.[4] At the relevant time, Ronald Fichtner was the managing partner in the PrinceGeorge office and Charles Buchan was the director of the tax department. Theyinterviewed the plaintiff in Toronto before offering him the job. Both testified thatthey did not consider the plaintiff to be fully qualified to be a tax manager, but thetitle was important to him and they hoped he would “grow into” the role. They alsosaid that the job description on the website, with its reference to teams, was ageneric one that could not be rigidly applied to a smaller office like Prince George.[5] The offer of employment was set out in a letter, signed by Mr. Buchan, onwhich the plaintiff acknowledged his acceptance. That document therefore

Balogun v. Deloitte & Touche, LLP Page 3constitutes the contract of employment. It is dated October 29, 2005, but appears tohave been prepared and signed by both parties in advance of that date.[6] One term of the contract was that the plaintiff would, at the defendant’sexpense, take an in-depth tax course offered by the Canadian Institute of CharteredAccountants. That course would likely take two years to complete while the plaintiffwas also working.[7] The contract also provided that the defendant would pay for the plaintiff totake other courses if approved by the defendant. Although not specified in thedocument, this would likely have included the “reciprocity examination” that would benecessary for the plaintiff to obtain his Canadian CA designation. Mr. Buchan saidthe plaintiff was hired too late to begin the tax course or write the examination in2005 and the next opportunity for him to do so would have been in the fall of 2006.2011 BCSC 1314 (CanLII)II.The Parties’ Positions[8] I heard a great deal of evidence about the work done by the plaintiff andvarious incidents and disagreements that occurred while he was employed.Partners of the firm and the plaintiff’s immediate supervisors, who were called by theplaintiff as adverse witnesses, had criticism of his work performance, attitude andCanadian tax knowledge. The plaintiff does not accept the validity of thesecriticisms and says he was not given work or responsibilities commensurate with hisqualifications, the job description or the general industry understanding of the role ofa tax manager. On some occasions, he said, his work was reviewed by employeeswith lesser qualifications.[9] The parties’ respective positions make most of that evidence irrelevant. Thedefendant does not allege that the plaintiff was dismissed for cause. In the absenceof cause, the defendant’s right to terminate the employment contract, if that is whathappened, was subject to the duty to give reasonable notice. The defendant’sposition is simply that there was no termination and no notice requirement becausethe plaintiff decided to quit.

Balogun v. Deloitte & Touche, LLP Page 4[10] The plaintiff says the defendant’s failure to give him appropriateresponsibilities was a breach of the employment contract and he referred inargument to the doctrine of constructive dismissal. The following definition ofconstructive dismissal has been endorsed by the Supreme Court of Canada inFarber v. Royal Trust Co., [1997] 1 S.C.R. 846 (at para. 34), and by the B.C. Courtof Appeal in Lewis v. Terrace Tourism Society, 2010 BCCA 346 (at para. 30):A constructive dismissal occurs when an employer makes a unilateral andfundamental change to a term or condition of an employment contract withoutproviding reasonable notice of that change to the employee. Such actionamounts to a repudiation of the contract of employment by the employerwhether or not he intended to continue the employment relationship.Therefore, the employee can treat the contract as wrongfully terminated andresign which, in turn, gives rise to an obligation on the employer’s part toprovide damages in lieu of reasonable notice. [emphasis added]2011 BCSC 1314 (CanLII)[11] Even if there was a breach of the employment contract in this case, it couldnot amount to constructive dismissal because it did not put the plaintiff in a positionwhere he was forced to resign. The plaintiff denies there was any resignation,forced or otherwise, and says he was fired.[12] I therefore do not need to make any findings on who was right or wrong in thevarious disputes that arose about the plaintiff’s work and it is not in the interest ofeither party that the substance of these disputes be publicized on the internetthrough these reasons if that is not necessary for my decision. The question ofwhether the plaintiff was dismissed or resigned turns on what was said at a meetingthe plaintiff had with Mr. Buchan and Mr. Fichtner on June 16, 2006, and on someevents in the days immediately preceding and following that meeting.[13] There is, however, one work performance issue that must be referred tobecause of the way it may have been discussed at the critical meeting. The PrinceGeorge office had some clients who, because of their business interests orinvestments, were required to file U.S. as well as Canadian tax returns. The plaintiffbecame involved with the U.S. filings, although Mr. Buchan and Mr. Fichtner testifiedthat they represented a very small part of the business of the Prince George officeand the plaintiff was not hired as a U.S. tax specialist.

Balogun v. Deloitte & Touche, LLP Page 5[14] The plaintiff, based on his American qualification, formed the opinion that U.S.tax issues had not been correctly addressed in prior years. His concerns wereultimately referred to U.S. tax experts in the defendant’s Vancouver office and theplaintiff came to believe he was the only person in the Prince George office capableof dealing with U.S. tax matters.III. The Plaintiff’s Departure[15] The employment contract provided for a review after six months for thepurpose of adjusting the plaintiff’s salary, based on performance. The plaintiff washired at a starting annual salary of $64,000 and at the end of the six-month periodwanted a raise to $100,000.2011 BCSC 1314 (CanLII)[16] Mr. Buchan testified that his opinion, as of May 2006, was that the plaintiff’swork to that point did not warrant a raise and that he made his position clear when anumber of issues were discussed at a performance review meeting on May 15,2006. A memorandum by Mr. Buchan, dated May 15, 2006, includes a statementthat he told the plaintiff any salary increase would be based on performance, notmerely on the fact he had been there for six months, and that his performance tothat point had not met expectations. The plaintiff denied that meeting took place andcalled the memo a “fraud”.[17] The issue arose again prior to the June 16 meeting. On June 14, Mr Buchansent the plaintiff an email stating again that there would be no salary increase,although the matter might be reviewed in another six months if the plaintiffsatisfactorily addressed a number of other job performance issues referred to in theemail. The plaintiff replied that, based on Mr. Buchan’s comments about salary, hedid not think the planned meeting would be productive and “it’s really a non-starterfrom my point of view”. He said he could not comment on the other issues “withoutbeing defensive”.[18] At trial, the plaintiff testified that he considered this exchange to be a matter ofnegotiating tactics and hoped at the June 16 meeting to convince Mr. Buchan andMr. Fichtner that he deserved the raise he was seeking. On the other issues, he

Balogun v. Deloitte & Touche, LLP Page 6said he intended to bring files and other documents to refute criticism that had beenmade. The plaintiff clearly had a much higher opinion of his abilities andperformance than what was being expressed by Mr. Buchan and Mr. Fichtner.Whatever the merits of his position, I find that he was so focussed on the salaryquestion that he paid little attention to other issues that were raised.[19] The June 16 meeting took place late in the afternoon, just before the plaintiffwas to begin a scheduled two-week vacation. Mr. Buchan testified that he referredto the issues raised in his earlier email and wanted to know if the plaintiff wasprepared to change his approach to the job. Mr. Fichtner described the meeting asa “broad ranging conversation centred around my concern with respect toconfidence and attitude, performance evaluation and response”. He said he askedthe plaintiff to confirm he understood the concerns and would attempt to addressthem.2011 BCSC 1314 (CanLII)[20] Mr. Fichtner and Mr. Buchan both testified that the plaintiff said no one in theoffice was capable of evaluating his work and when he was asked what that meantfor the future, the plaintiff replied “I’m out of here”. They took that as a statementthat he was resigning.[21] The plaintiff testified that his reference to no one being capable of evaluatinghis work dealt only with the work he did on U.S. tax returns and the fact that he wasthe only person in the Prince George office who held a U.S. accounting qualification.He denied saying “I’m out of here”, but said that if he used any words to that effecthe meant only that he was beginning his vacation and needed to leave for theairport.[22] Dan Faulder was an employee whose responsibilities included office securityand information technology. He testified that, on Mr. Fichtner’s instructions, heretrieved the plaintiff’s laptop computer and office keys. The plaintiff said heunderstood the computer was scheduled for replacement and the keys would beneeded for use by others while he was on vacation.

Balogun v. Deloitte & Touche, LLP Page 7[23] Mr. Fichtner testified he intended to ask the plaintiff for a letter of resignation,which would be the normal practice, but the plaintiff left the office before he could doso, and no further efforts were made to request such a letter.[24] The plaintiff returned to Prince George from his vacation on July 2 and, onarrival at his apartment found a copy of a Record of Employment (ROE) – thestandard document that an employer must file for employment insurance purposeswhen employment ends for any reason. On the portion of the form that states thereason for issuing the document, the code meaning “quit” was filled in. The plaintifftestified he was surprised to see the ROE because, in his view, he had not quit.2011 BCSC 1314 (CanLII)[25] The ROE was prepared by the defendant’s national office in Toronto. Theplaintiff testified that he found it partially sticking out of an opened envelope that hadbeen attached to the door of his apartment. He asserts that it could not have beenmailed because his apartment number was missing from the address on thedocument.[26] The plaintiff testified that he applied for employment insurance but hisapplication was initially rejected on the basis of the statement in the ROE that hehad quit. However, Service Canada subsequently accepted his appeal and providedemployment insurance benefits.[27] Approximately two years later, the plaintiff obtained his Service Canada fileand found that it contained a second ROE stating he had been dismissed. None ofthe defendant’s witnesses knew anything of this document and, unlike the originalROE, it is not signed by any representative of the defendant. It was obviouslyprepared at a later date because it shows the plaintiff’s address as the one in NorthYork, Ontario, to which he moved after his employment in Prince George ended.[28] This second ROE may have been generated by Service Canada for its ownrecords after it allowed the plaintiff’s appeal. Wherever it came from, there is noevidence that the defendant had any knowledge of it and I cannot accept it as anadmission by the defendant that the plaintiff was dismissed.

Balogun v. Deloitte & Touche, LLP Page 8IV. Discussion and Conclusion--Wrongful Dismissal[29] The onus is on the plaintiff to prove, on a balance of probabilities, that he wasdismissed: Osachoff v. Interpac Packaging Systems Inc. (1992), 44 C.C.E.L. 156(B.C.S.C.). In Kalaman v. Singer Valve Co. Ltd., 1997 CanLII 4035, at para. 38(B.C.C.A.), the Court of Appeal said that a notice of termination must be specific andunequivocal, such that a reasonable person will be led to the clear understandingthat his or her employment is at an end.[30] A resignation must also be clear and unequivocal. There must be a clearstatement of an intention to resign, or conduct from which that intention would clearlyappear: Danroth v. Farrow Holdings Ltd., 2005 BCCA 593.2011 BCSC 1314 (CanLII)[31] In Osachoff, the plaintiff responded to negative comments at a meeting byasking whether she was being terminated and, when she received no response,requested her final paycheque. The court found that the plaintiff was in a frame ofmind to interpret criticism as dismissal, but the silence of the defendant’srepresentatives in response to her question did not amount to a dismissal and theplaintiff had failed to prove dismissal on the balance of probabilities.… Events at the meeting were unfolding extremely rapidly and in a veryunexpected fashion from everyone’s point of view. I conclude that there wasvery little time between the plaintiff asking if she was being terminated, andher saying that she could see that they had made up their minds and askingfor her cheque. I also conclude that when the plaintiff was criticized byMr. Robertson she wrongly jumped to the conclusion that she was beingdismissed. …From this highly charged atmosphere, I am unable to conclude that any of theother three participants in the meeting can be deemed to have dismissed theplaintiff simply because they failed to respond to her unexpected question.[at paras. 24-25][32] In McIntyre v. Atlantic Hardchrome Ltd., 1991 CarswellNS 211(N.S.S.C.)(rev’d on other grounds), the plaintiff and his supervisor had an angryconfrontation about the plaintiff’s failure to do certain work that he had beeninstructed to do and the plaintiff walked off the job. The court said that, in those

Balogun v. Deloitte & Touche, LLP Page 9circumstances, the onus was on the plaintiff to contact the employer in order toclarify the situation:... Recognizing the strong position of the employer, it is my opinionnevertheless, in this case that the plaintiff should have made early contactwith his employer to determine their relationships. If he was to learn that hewas discharged, without notice or pay in lieu thereof, I would call it a wrongfuldischarge. On the evidence before me, I find that the plaintiff being upsetover the dispute with Ferguson, walked off the job. The fault giving rise to thedispute was his. If he had wanted to keep his job, he should have been theone, after the heat had subsided, who made contact with the employer. Nothaving done so, in the situation I have before me this was not a wrongfuldischarge. [at para. 52][33] In this case, the plaintiff did not “walk off the job” in the way that the plaintiff inMcIntyre did. His departure from the office on June 16, 2006, standing alone, wasconsistent with the fact that it was the end of the normal workday and he was due tostart a previously authorized vacation. Nor did he make an unequivocal statementconsistent with resignation, as the plaintiff in Osachoff did when she asked for herfinal paycheque.2011 BCSC 1314 (CanLII)[34] I find that the plaintiff likely did say something to the effect of “I’m out of here”,but in the circumstances that statement was ambiguous and not a clear statement ofan intention to resign. That ambiguity was not, in my view, overcome by the fact theplaintiff turned in his computer and keys as requested. In hindsight, the plaintiffshould perhaps have realized that this request was not consistent merely with thefact he was leaving on vacation and should have asked why it was necessary.However, I cannot fault him for failing to fully consider the implications of thatrequest, given the emotional and somewhat angry circumstances and the fact thathe was in a hurry to get to the airport.[35] I find that Mr. Buchan and Mr. Fichtner, although they believed the plaintiffhad resigned, recognized the ambiguity in the situation when they discussedrequesting a letter of resignation. Mr. Fichtner testified that requesting such a letterwould be the normal practice and I find that normal practice existed for the verypurpose of clarifying situations such as this. It was not followed on June 16 becausethe plaintiff left the office, but there has been no satisfactory explanation of the

Balogun v. Deloitte & Touche, LLP Page 10defendant’s failure to follow the matter up with a later request by letter or telephonemessage.[36] Instead of asking the plaintiff to confirm his resignation and eliminate anyuncertainty, the defendant simply sent the record of employment to the plaintiff andto Service Canada. Although neither Mr. Buchan nor Mr. Fichtner said anything onJune 16 that amounted to or was intended to amount to a notice of termination, thesubsequent delivery of the ROE clearly communicated to the plaintiff that theemployer considered the employment relationship to have ended.[37] Counsel for the defendant argues that, on seeing the ROE’s reference toresignation, the plaintiff should have made greater effort to contact the defendantand clarify his position. I do not accept that submission because, by that point, theemployment contract had been terminated and even if the plaintiff had made thoseefforts, Mr. Fichtner made clear in his testimony that he would not have consideredreinstatement.2011 BCSC 1314 (CanLII)[38] I therefore find that the plaintiff has met the onus of proving, on a balance ofprobabilities, that he was dismissed without notice.V. Damages for Wrongful Dismissal[39] Damages for wrongful dismissal are normally based on the income theplaintiff would have received during the appropriate notice period. A non-exhaustivelist of the factors to consider in determining a reasonable notice period are set out inthe frequently quoted passage from Bardal v. The Globe and Mail Ltd., 1960 24D.L.R. (2d) 140:There can be no catalogue laid down as to what is reasonable notice inparticular classes of cases. The reasonableness of the notice must bedecided with reference to each particular case, having regard to the characterof the employment, the length of service of the servant, the age of the servantand the availability of similar employment, having regard to the experience,training and qualifications of the servant. [at p. 145][40] Of particular importance in this case is the very short length of service. Theplaintiff worked for the defendant for only seven and a half months, although he was

Balogun v. Deloitte & Touche, LLP Page 11also paid for an additional two weeks when he was on vacation. That considerationis balanced to some extent by the professional nature of the work and the fact theplaintiff moved across the country to take the job.[41] Of the many cases cited to me, the most comparable is Lim v. Delrina, 1995CarswellOnt 296, where a chartered accountant was dismissed from a position ascorporate controller after seven months. The court found that the appropriate noticeperiod in the circumstances to be three months, but extended it to five monthsbecause of depressed economic conditions at the time of dismissal and theemployer’s unreasonable failure to provide a letter of reference. There is noevidence of similar aggravating factors in this case and the position from which theplaintiff in Lim was dismissed was one of greater responsibility.2011 BCSC 1314 (CanLII)[42] In all the circumstances of this case, I find a reasonable notice period to betwo months, and award the equivalent of two months’ salary, based on the annualincome of $64,000. In addition to that, the defendant concedes that the plaintiff isowed $2,517.29 for overtime work that was not paid for.[43] The plaintiff also seeks aggravated damages arising from the manner ofdismissal and punitive damages. The distinction between those two heads ofdamage was explained by the Supreme Court of Canada in Honda v. Keays, 2008SCC 39:... Damages for conduct in the manner of dismissal are compensatory;punitive damages are restricted to advertent wrongful acts that are somalicious and outrageous that they are deserving of punishment on theirown. This distinction must guide judges in their analysis. [at para. 62][44] Damages resulting from the manner of dismissal are available only if theemployer engages in conduct that is “unfair or is in bad faith by being, for example,untruthful, misleading or unduly insensitive”: Wallace v. United Grain Growers Ltd.(c.o.b. Public Press), [1997] 3 S.C.R. 701, at para. 98.

Balogun v. Deloitte & Touche, LLP Page 12[45] There is no evidence in this case of any conduct that comes close to meetingthe test for either additional damages arising from the manner of dismissal orpunitive damages.[46] The plaintiff claims damages for certain benefits that he says he was entitledto under the contract, including a laptop computer, the cost of taking the in-depth taxcourse and the cost of taking the reciprocity exams. These are benefits thedefendant was required to provide under the contract for the purpose of allowing theplaintiff to do the job and enhancing his value to the employer. There is nothing inthe contract that can reasonably be interpreted as requiring these obligations tocontinue after the contract has been terminated.2011 BCSC 1314 (CanLII)[47] The plaintiff claims he is entitled to vacation pay. Section 58 of theEmployment Standards Act, R.S.B.C. 1996, c. 113 reads:58 (1) An employer must pay an employee the following amount of vacationpay:(a) after 5 calendar days of employment, at least 4% of the employee'stotal wages during the year of employment entitling the employee to thevacation pay;(b) after 5 consecutive years of employment, at least 6% of theemployee's total wages during the year of employment entitling theemployee to the vacation pay.(2) Vacation pay must be paid to an employee(a) at least 7 days before the beginning of the employee's annualvacation, or(b) on the employee's scheduled paydays, if(i) agreed in writing by the employer and the employee, or(ii) provided by the collective agreement.(3) Any vacation pay an employee is entitled to when the employmentterminates must be paid to the employee at the time set by section 18 forpaying wages.[48] The plaintiff’s last day of work was June 16, but he was paid for the followingtwo weeks when he was on vacation. The defendant therefore satisfied its vacationpay obligation.

Balogun v. Deloitte & Touche, LLP Page 14... The letter does no more than recite that Mr. Bailey is no longer associatedwith the firm, that he goes with the good wishes of the firm and that thosewho receive the letter are asked to contact other members of the firm in theinterim. That being so as a matter of law, I have concluded that the wordsused in the letter are not capable of defamatory meaning and thereforecannot support an action for libel. [at para. 17]VII. Summary and Order[53] The plaintiff is awarded damages for wrongful dismissal in the total amount of$13,184.29, consisting of $10,667 as two months’ salary in lieu of notice, plusunpaid overtime of $2,517.29. The claim for damages for defamation is dismissed.The amount I have awarded falls within the jurisdiction of the Provincial Court underthe Small Claims Act, R.S.B.C. 1996, c. 430, and, pursuant to Rule 14-1(10) of theSupreme Court Civil Rules, the plaintiff is not entitled to costs, other thandisbursements.2011 BCSC 1314 (CanLII)“N. Smith J.”

Page 1Case Name:United Food and Commercial Workers Union,Local 401 v. Canada Safeway Ltd.(Watson Grievance)IN THE MATTER OF an ArbitrationBetweenUnited Food and Commercial Workers Union, Local 401, andCanada Safeway Ltd. with respectto the Grievance of Ian Watson[2011] A.G.A.A. No. 61215 L.A.C. (4th) 183109 C.L.A.S. 126AlbertaGrievance ArbitrationPanel: William D. Mcfetridge (Arbitrator)Award: December 9, 2011.(94 paras.)Labour arbitration -- Discipline and discharge -- Available sanctions -- Dismissal.Labour arbitration -- Discipline and discharge -- Grounds -- Dishonesty.A part-time grocery clerk/cashier at a major supermarket grieved his dismissal for dishonesty. Acustomer had reported the grievor for giving away two bunches of asparagus without charge becausehe had a problem scanning them into the cash register. The employer argued that any act oftheft or dishonesty was cause for dismissal. The union argued that the grievor had no motive to bedishonest; rather, he was frustrated and confused by his problem with scanning the asparagus, andhe just wanted to get the customer through without delay. The grievor did not profit from his conduct.It was simply an error in judgment, for which he should be disciplined but not dismissed.HELD: Grievance dismissed. The employer had a strict honesty and integrity policy of which thegrievor was aware. Even though the grievor did not benefit financially, he did benefit by getting rid

Page 2of the immediate problem that faced him. The grievor did not hesitate to sacrifice his employer'sentitlement to payment in order to solve his own immediate concerns. It was a breach of faith and aviolation of an essential condition of his employment.Appearances:Representing the Union:Kevin Tamblyn, Counsel.Laura Lowrie, UFCW Business Agent, Advisor/Witness.Ian Watson, Grievor/Witness.Representing the Employer:Joyce Mitchell, Counsel.Dale Hladiuk, Director of Labour Relations, Canada Safeway, Advisor/Witness.Darrell Randall, Witness.AWARDPRELIMINARY MATTERS1 At the outset the parties agreed that I was properly appointed and had jurisdiction over theissues in this case. The parties agreed to waive time lines stipulated in the Collective Agreement forthe issuance of the Award. There were 6 exhibits entered by consent including Exhibit 2 which includeda total of 7 separate documents. A full list of the Exhibits is attached.THE ISSUE2 The Grievor's employment was terminated for cause when it was discovered that he hadplaced two bunches of asparagus in a customer's cart without charging him. The misconduct is admittedand the sole issue here is whether, in all the circumstances, dismissal was the appropriatedisciplinary response.FACT SUMMARY3 1. None of the essential facts are in dispute.4 2. The Grievor was employed part-time by Safeway as a General Clerk II assigned to theProduce Department. He began his employment in June, 2008 and was dismissed for cause in July,2010. At that time he was working 28 to 35 hours per week.5 3. Although his primary responsibilities were in the Produce Department, it was a regular partof his job to perform cashier relief. His cashier assignments might be for just a few minutes or formost of a shift. The cashier work was not predictable and depended on how busy the store was andwhether there was an unexpected absence.

Page 36 4. The Grievor preferred working in the Produce Department and was part of a small teamwho maintained the Department to a high standard.7 5. He did not like the cashier work in part because it took him away from what he regarded ashis "real work" in the Produce Department.8 6. He had taken the cashier training course but had not passed the exam. Notwithstanding hispoor results on the exam, he had been assigned cashier duties on a regular basis for approximatelytwo months since completing the cashier training.9 7. On July 23, 2010 the Grievor began his shift at 2:30 in the afternoon. When he arrived hisco-workers in the Produce Department were just leaving for lunch. The Produce Department hadbeen fully staffed in the morning and was in good shape. There were some tasks which the Grievorplanned to complete however he was immediately assigned to perform cashier duties for the afternoon.10 8. He encountered a problem with his first customer. He was unable to get the cash registerto ring in two bunches of asparagus. The code was printed on an elastic band around each bunchand he entered it twice. Each time the cash register made a beeping noise to notify the operator thatthe item had not been charged to the order.11 9. The customer was a long term Safeway employee who knew the code for asparagus andthat it is sold by weight not by the bunch. He also knew that the cash register could not accept thecode because the Grievor had not put the asparagus on the scale. The customer told the Grievor toput the asparagus on the scale and enter code 4080. Instead of doing so, the Grievor simply baggedthe asparagus and put it in the customer's shopping cart without entering it in the cash register.12 10. The customer again asked the Grievor to scale the asparagus and to enter the code 4080,this time the Grievor looked to the right and then to the left, put his finger to his lips and said"shhhh, it's alright".13 11. This was not acceptable to the customer. He took the asparagus out of the cart, removedit from the bag and put it on the scale. He again directed the Grievor to enter the code 4080 andwhen the Grievor did so the amount of $5.90 was recorded on the customer's bill. The customerpaid for his grocery order and left the store.14 12. This incident concerned the customer and before leaving the parking lot he telephonedhis wife, who is also a Safeway employee and happened to be at that store interviewing prospectiveemployees. He advised her what had just happened and the information was passed on to the storeManager.15 13. Less than an hour later the customer got a call from a Safeway security employee whoasked him to write out a statement and send it to him. The customer did so and emailed his statementto the security employee.16 14. The next day the Grievor was interviewed in the presence of his Union Steward. The interviewwas recorded and the recording and a transcript of the recording were in evidence at thehearing.17 15. The Grievor did not initially recall the transaction however when confronted with detailsof the incident, he did not deny any of the essentials.

Page 4- He admitted that he had placed the asparagus in a bag withoutcharging the customer for it and acknowledged that he "probably"did say "shhh, it's all right". He explained that "sometimes I say stupidthings."- He admitted that he was aware of the Safeway Employee Honestyand Integrity Policy.- He admitted that he had taken the PAUL training. PAUL is anacronym for Product Accuracy Using Lookup, a program to ensurethat cashiers understand the importance of accurately keying in produceand instructing them how to recognize various types of produceand look up the proper codes.- He explained that he thought that asparagus was sold by the bunchand didn't think to weigh it.- He said that he was sorry and acknowledged that he should be reprimandedin some way.- He said he was so busy he didn't think to ask for help.- He said that there was a cashier working next to him but that he"can't understand him half the time" because of his accent.18 16. The Grievor was suspended and advised that a decision would be made within the nextfew days. He was told that if he needed to talk to somebody, the Employee Assistance Program wasavailable to him.19 17. On July 27, 2010 the Grievor received a telephone call from his Store Manager advisinghim that his employment was terminated effective immediately for "sweethearting and violation ofCompany policies including the Honesty and Integrity policy". A letter of termination was sent tohis home address with a copy to his Union. Although nothing turns on it, the Grievor had movedand the termination letter was never received by him.20 20. The Safeway Employee Honesty and Integrity policy states:We insist that Safeway employees be honest in all of their dealings andmaintain the highest standards of ethics and integrity.Dishonesty can take many forms, for example:- theft by not paying for merchandise;- consuming or "grazing" unpaid for product;- under-ringing merchandise;

Page 5- taking customer's Air Miles for personal credit;- fraudulent W.C.B. claims;- faking illness in order to receive sick pay;- lying about hours worked; or- misrepresenting any company financial or operating reports orrecords.If an employee commits any act of theft or dishonesty termination of employmentwill result.In addition, theft is a criminal offence and such an employee may be subjectto criminal prosecution.21 21. During his testimony the Grievor indicated that he worked as a cashier regularly althoughnot every day. He indicated that he was not good at it but that he was assigned cashier dutieseven though he'd received a failing grade in the cashier training program. He indicated that cashierwork is also stressful to him because it takes him away from what he considers his "real job" andwhen he spends part of his shift working as a cashier, he is "running for the rest of his shift" to gethis work done in the Produce Department.22 22. He said that he is not very computer savvy and found the beeping noise obnoxious. Heassumed that customers would also find it annoying. He said that he was frustrated by the cash register'srefusal to accept the asparagus and just wanted to get the customer through. He said that hisreaction to the beeping noise was "to heck with it" and he threw the produce in a bag so that hecould move on. He said that he wanted to get the customer through quickly so he could "get back towhat he was paid to do, selling vegetables."23 23. The Grievor did not regard his conduct as dishonest "at all" and testified that he was justtrying to get the customer out and happy. He said that Safeway had impressed upon him the importanceof good customer service and he did not want to delay the customer. He indicated that he receivedno benefit from his misconduct but acknowledged that it was wrong and warranted discipline.24 24. When asked "how can the Arbitrator be certain you won't do this again if he sends youback to work?" he replied "I can't be certain but hope I won't". He testified that he'd like to get anote from a Doctor saying he couldn't do cashier duties because of an earlier wrist injury. He testifiedthat his wrists were crushed in an accident 15 years ago and "cramp up easily."EMPLOYER ARGUMENT25 25. It was the Employer's position that the undisputed facts support a finding that there wasjust cause for termination. The Grievor attempted to give merchandise to a customer without chargingfor it. He did it knowingly and his conduct must be characterized as dishonesty therefore dischargeis the proper remedy.

Page 626 26. The Grievor's conduct likely would have gone undetected but for the fact that the personhe attempted to give the merchandise to was a long term Safeway employee.27 27. Cashier duties were part of the Grievor's job as a General Clerk and he had receivedcashier training. Although he received poor marks in the test given following his training, he wascleared to do cashier work and had worked as a cashier on many occasions.28 28. He'd completed PAUL training (Product Accuracy Using Lookup) the purpose of whichis to impress upon cashiers the importance of using the proper code and looking up prices as necessaryso that customers are charged the correct amount for the merchandise they purchase.29 29. The asparagus which the Grievor had a problem with was sold by weight and he couldn'tring it through without putting it on the scale. He tried twice but when the system wouldn't accept it,he just put the asparagus in a plastic bag and placed the bag in the customer's cart. He made no effortto get help or ask another cashier.30 30. The customer recognized the problem, gave the Grievor the code and told him that theasparagus had to go on the scale. Instead of doing so, the Grievor looked right and left, put his fingerto his lips and told the customer "shuss, don't worry, it's all right". Even though the Grievor hadreceived instruction as to how to properly ring in the asparagus, he refused to do it.31 31. In order to get the Grievor to charge him for the asparagus, the customer had to tell himtwice and actually take the asparagus out of his cart, remove it from the bag, place it on the scaleand insist that the Grievor weigh and charge him for it.32 32. Counsel argued that if the customer hadn't been honest this would have gone undetected.Counsel stressed that this is a highly unsupervised employment situation and the Employer needs tobe able to trust its employees.33 33. The Employer has a written policy regarding honesty and integrity. The Employer insistson the highest standards of ethics and integrity and that dishonesty in any form will not be tolerated.The policy is clear that under-ringing is a form of dishonesty and that the penalty for any act of theftor dishonesty is termination. The Grievor signed off on the policy and knew the consequences ofsuch conduct.34 34. According to the Employer, this was theft through an extreme form of under-ringing. Nocharge at all was recorded for the product. This practice is commonly referred to as "sweethearting"and even though it normally involves friends and family, the fact the customer was unknown to theGrievor, does not alter the essential nature of the conduct. The Grievor was in a position of trust andhe abused that trust when he took something that didn't belong to him and attempted to give it tosomeone who hadn't paid for it.35 35. Counsel argued that the Grievor knowingly gave away a product which he knew belongedto the Employer and his conduct cannot be characterized as a mistake. There was evidenceof a dishonest intent in that he attempted to conceal his conduct: he looked both right and left beforeputting his finger to his lips and telling the customer to keep quiet ("Shush") and it would be alright.36 36. It was the Employer's position that this is not like the cases where the employee thoughthe had authority to mark down the product.

Page 737 37. The Grievor admitted that the beeping sound of the cash register was very annoying soinstead of figuring out or asking how to correctly enter the asparagus he simply said "screw it",threw the product in a bag and gave it to the customer without charge.38 38. The Employer argued that the Grievor was motivated by personal benefit because thiswould have permitted him to clear the customer more quickly without having to take the time tolearn the proper way to ring in the asparagus. The Grievor admitted that he hoped this would gethim out of the cashier job sooner and back to the work he preferred in the Produce Department.39 39. According to Counsel, even if the Grievor's claim that he did not benefit from this misconductwas true, it does not alter the fact that he gave away a product that he is supposed to sell. Itis still theft even if he gives it to a stranger. The fact that he gave it to a stranger would normallymake it harder for the Employer to detect and this misconduct would not have been detected if thecustomer hadn't been a Safeway employee and reported it.40 40. According to Counsel, the Grievor was caught "red handed" committing an act of theftand under these circumstances dishonesty results in dismissal and the cases support the Employer'sdecision to terminate this employee.41 41. Counsel argued that the Union's defense that it was busy and the Grievor was stressedand confused by the pressure of work is not supported by the facts. At the time of this incident hisshift had just begun and the store was not particularly busy. This was the first customer he servedand there was no one in line behind him. When he finished this order, there were only one or twocustomers waiting in line which, according to Counsel, is about normal and can not be characterizedas a stressful or extra ordinary work situation. The Produce Department had been fully staffed allmorning and was in good shape, another employee would be working in the Produce Departmentuntil 6pm. There was no reason for the Grievor to believe that he would return to a mess in theProduce Department or be "yelled at" by the Produce Manager.42 42. Counsel argued that even if it was busy and he was under pressure, that is no excuse tostart giving product away. Furthermore, Counsel suggested that if the Grievor's solution to stress isto start giving product away, he is not a good candidate for reinstatement.43 43. It was the Employer's position that the Grievor's explanation just doesn't make sense.There are only two possible choices when ringing in produce, it is either sold by weight or at acoded price per item. When the Grievor found that the item price code would not work, the obviousthing to do was to weigh it. Furthermore, he had a phone and there was another cashier at the nexttill. He could have asked someone. According to Counsel, even if the closest cashier was difficult tounderstand, there were other people he could have asked. He never tried to find out how to do itproperly, it was just easier for him to give the product away.44 44. Counsel argued that the Grievor's conduct reveals his attitude: he just didn't care whetheror not the customer was charged for the asparagus. Initially, he wouldn't even accept the customer'shelp. It was necessary for the customer to take the asparagus out of his cart, put it on the scale andinsist that he be charged for it.45 45. Counsel pointed out that the Grievor admitted that he didn't like the cashier job andwanted to get back to the Produce Department as soon as possible. However, his job includes doingcashier work and he is expected to do it well. It is not acceptable for him to give away productswhen he doesn't know how to properly charge the customer for it. Counsel pointed out that the item

Page 8he had a problem with was from the Produce Department where he works and, on this same order,he properly rang in other produce items that needed to be weighed as well as produce items thatwere sold per item. Counsel argued that it is more likely that this was intentional misconduct ratherthan any real confusion or reaction to stress.46 46. It was the Employer's position that the Grievor's conduct in the interview revealed thathis real concern that day was to get out of the cashier duties as quickly as possible and his explanationthat he was acting in the interest of customer service is not believable. Counsel argued that thiswas not an error in judgement motivated by a desire to offer prompt customer service nor was it aresponse to the pressures of a busy work assignment, it was dishonesty and grounds for dismissal.47 47. According to Counsel the cases make it clear why zero tolerance is the accepted standardin the retail food industry. The requirements for high standards of honesty have been well publicizedby the Employer, the Grievor knew what was expected and he knew the consequences if hedid not meet those standards. Trust is of paramount importance and because of his dishonesty theEmployer can no longer trust this employee.48 48. Counsel pointed out that in the retail food industry, losses due to theft are a significantproblem and that because of the Employer's vulnerability, the cases recognize the need for deterrence.49 49. According to Counsel, there is no basis in this case to mitigate the penalty. This is ashort service employee who provided only a cursory apology and recited a list of excuses whichwere really nothing more than a diversionary tactic to try and shift the blame onto others. He didn'twant to do cashier work because it would be on his head if the Produce Department fell apart in hisabsence. He inferred that his problem with the asparagus was the Company's fault since he shouldn'thave been assigned cashier duties because he'd failed the cashier exam. He said that if he was reinstatedhe'd get a doctor to say he couldn't work as a cashier due to a wrist injury 15 years ago. Hecouldn't ask the cashier next to him because of his accent. Counsel suggested that the Grievor hasnot accepted responsibility for his misconduct and is not a good prospect for rehabilitation.50 50. Counsel argued that the most telling piece of testimony was the Grievor's response whenhe was asked by Union Counsel "How can the Arbitrator be certain that this won't happen again?".His reply was "I can't be certain, I hope it won't".Counsel indicated that this answer provides littlecomfort to both the Arbitrator and the Employer.51 51. The Employer relied on the following authorities: Canada Safeway Ltd. and U.F.C.W.,Local 1518 re Evans, [1995] B.C.C.A.A.A. No. 257, 40 C.L.A.S. 415 (Chertkow), Canada SafewayLtd. and U.F.C.W., Local 401 re Hodson et als, [2004] A.G.A.A. No. 71, 79 C.L.A.S. 372 (Ivankowich),Canada Safeway Ltd. and U.F.C.W., Local 401 re Szakszon, [2004] A.G.A.A. No. 21, 76C.L.A.S. 284 (Jones. D.P.), Canada Safeway Ltd. and U.F.C.W., Local 401 re Brandse, [2000]A.G.A.A. No. 75, 63 C.L.A.S. 12 (Smith, P.A.), Canada Safeway Ltd. v. United Food and CommercialWorkers, Local 401 re Schlekewy, [2003] A.G.A.A. No. 40 (Power), Canada Safeway Ltd.and U.F.C.W., Local 401 re Fedor, [2002] A.G.A.A. No. 24, 68 C.L.A.S. 311 (Moreau), Great Atlantic& Pacific Co. of Canada and U.F.C.W re Duhaime, [2001] A.G.A.A. No. 18, 63 C.L.A.S. 13(Stephens), U.F.C.W., Local 401 v. Canada Safeway Ltd. re Jensen and Moxley, [1989] A.J. No.142 (Jones, D.P.), and Canada Safeway Ltd. and U.F.C.W., Local 401 re Daniel et als, 34 C.L.A.S.628 (Moreau).UNION ARGUMENT

Page 952 52. The Union argued that despite the Employer's repeated accusations of dishonesty, this isnot a case which falls neatly into what the arbitral authorities have held to be dishonesty in the past.53 53. The Union referred to numerous cases where employees had been dismissed for dishonestyand argued that the recurring theme running through them is that the employee or a friend receiveda benefit as a result of the employee's dishonesty.54 54. Counsel did not dispute the Employer's definition of "sweethearting" and accepted that itdoesn't require the employee to act on behalf of a relative or a friend. It was acknowledged thatwhat the Grievor did was wrong and warranted some discipline but that here the facts do not supporta finding of dishonesty.55 55. Counsel argued that it was a busy day, otherwise the Grievor would not have been calledup to work as a cashier. When he was called over to work as a cashier, the Grievor was alone in theProduce Department and had some tasks he intended to complete. It was frustrating to be calledaway to work as a cashier and he was stressed and frazzled as a result. Because he was so stressed,the beeping of the computer "drove him nuts".56 56. Counsel pointed out that the Grievor was busy enough and stressed enough that the nextday he could not remember this incident or what the customer looked like.57 57. Counsel indicated that it should not be difficult to understand why the Grievor found itstressful. He was not properly trained to work as a Cashier and he was being forced to do it withouthaving passed the test. There was a growing line up behind his customer and he couldn't get thecash register to accept the code for the asparagus. In addition, he knew that his manager would beunhappy with him the next day because the Produce Department would be a mess with no one thereto stay on top of things. These were the things going through his mind.58 58. The Union acknowledged that the Grievor's conduct was wrong but when the cash registertwice refused to accept the asparagus he was stressed and confused and out of frustrationtossed the asparagus into a bag and put it in the customer's cart. The question isn't whether this waswrong, that is admitted. The question is, was it dishonest?59 59. Counsel acknowledged that the Grievor's behaviour was stupid, careless, inappropriateand wrong but there was no dishonest intent. He was not trying to steal a $6.00 bunch of asparagus,he was just trying to extricate himself from his situation and get the customer through without delay.He was wrong to do so as cashiering is part of his job but it is important to recognize that heacted out of frustration not dishonesty.60 60. The Union indicated that this does not excuse his conduct but does go to his motive.61 61. The Union pointed out that this employee has a relatively clean record with only awarning concerning an attendance matter and no history of anything remotely similar to what wesee here. It was acknowledged that he was a hard worker and basically a good employee. It was theUnion's view that there is no reason why this single incident should result in him losing his job.62 62. Counsel argued that progressive discipline ought to be tried to ensure that behaviour ofthis type does not happen again. According to the Union, the Grievor's record and the nature of theoffence suggest that a lesser form of discipline would be appropriate.63 63. Counsel indicated that the case authorities say that dismissal should be reserved for onlythe most serious offences: serious fraud; industrial espionage; serious violence toward a manager or

Page 10supervisor. Counsel argued that it is only in these types of cases where dismissal without progressivediscipline is acceptable and even in serious cases the penalty is often mitigated.64 64. According to Counsel, the misconduct here is not nearly serious enough to permit theEmployer to skip progressive discipline. He pointed out that it was acknowledged that progressivediscipline wasn't even considered in this case.65 65. According to the Union, the Employer is attempting to characterize this behaviour as"under-ringing" in order to squeeze it into its Honesty and Integrity policy in the hope that this willjustify termination.66 66. Counsel pointed out that the Honesty and Integrity Policy was unilaterally established bythe Company and should not be confused with a negotiated specified penalty clause. It is not bindingand the Employer must meet the usual principles of just cause for the termination to stand.67 67. Counsel argued that progressive discipline is about fairness and common sense. It has apurpose and recognizes that people make mistakes and in most cases they are capable of learningfrom their mistakes, correcting their behaviour and continuing as productive employees.68 68. According to the Union, progressive discipline balances the interests of the employerand employees. It allows the employer to have a workplace free of turmoil and misconduct and respondsto the employee's interest in job security. Progressive discipline is corrective discipline designedto fix problems and only where warnings, suspensions and more severe suspensions don'twork is termination appropriate.69 69. The Union strongly disagreed with the Employer's claim that the Grievor's conduct wastantamount to theft and argued that it wasn't remotely like theft. Counsel argued that the Grievormade an error in judgment when he put the asparagus in the customer's cart without ringing it in buthe did it out of frustration because he was unable to get the cash register to accept the code. What hedid was wrong but he did it because he was under stress, flustered and confused and not because hewas dishonest or trying to gain a personal benefit.70 70. The Union argued that this isn't a case where termination was an appropriate disciplinaryresponse to the Grievor's misconduct: discipline was warranted but termination was too harsh. Hesuggested that discipline at the low end of the progressive scale was warranted: a short suspensionor a written warning.71 71. The Union relied on the following authorities: Brown and Beatty, Labour Arbitration inCanada, para. 7:4422, Simon Fraser University and A.U.C.E., Local 2, 17 L.A.C. (4th) 129 (Munroe),Canada Post Corp. and Canadian Union of Postal Workers re Venosa, 15 L.A.C. (4th) 418(Adell), Re Government of Alberta and A.U.P.E. re Froehlich, 23 C.L.A.S. 346 (McFetridge,W.D.), April 16, 1991, Re C.W. Carry Ltd. and U.S.W. re Orsini, 22 C.L.A.S. 309 (Lefsrud, ErikS.), March 8, 1991, Ontario Store Fixtures and C.J.A., Local 1072 re Phinn, [1993] O.L.A.A. No.70 (MacDowell), Greyhound Lines of Canada Ltd. and A.T.U., Loc. 1374, [1991] C.L.A.D. No. 25(McFetridge), Canada Safeway Ltd. v. United Food and Commercial Workers, Local 401 reChampagne, [2007] A.G.A.A. No. 27 (Hornung), Canadian Union of Public Employees, Local5111 v. Saskatchewan Assn. of Health Organizations re Priest, [2011] S.L.A.A. No. 9 (Williams),Re New Dominion Stores and Retail Wholesale Canada (U.S.W.A., Local 414 re McCaul, 60 L.A.C.(4th) 308 (Beck), McKinley v. BC Tel [2001] 2 S.C.R. 161, Brown and Beatty, Labour Arbitrationin Canada, para. 7:4400, Re United Steelworkers of America, Local 3257 and The Steel Equipment

Page 11Co. Ltd., 14 L.A.C. 356 (Reville), Wm. Scott & Co. and Canadian Food and Allied Workers Union,Local P-162, BCLRB Decision No. 46/76 (Weiler), Re United Automobile Workers, Local 127, andOntario Steel Products Ltd. 13 L.A.C. 197 (Beardall), Re Nova Scotia Liquor Commission and NovaScotia Liquor Commission Employees Union, Local 470 C.L.C., 5 L.A.C. (2d) 117 (Richard),Home Hardware Stores Ltd. and Home Hardware Co. Employees Assn., 32 L.A.C. (3d) 129 (Tadman),Maple Leaf Potatoes, a Division of Maple Leaf Foods and United Food and CommercialWorkers, Local 401, unreported, (McFetridge, W.D.), July 31, 2006, and United Food and CommercialWorkers Union Local 401 and Canada Safeway Limited, unreported, (Beattie, AlanV.M.)(Q.C.), December 14, 2010.DECISION72 72. The Employer has the onus to demonstrate that the Grievor's conduct justified the impositionof discipline and, if that is established, the Union has the onus to prove that a lesser penalty isappropriate in all of the circumstances. (Canada Safeway Ltd. and U.F.C.W. Local 401 re Brandse(supra).73 73. There were few facts in dispute and the Grievor admitted that he did what the Employeraccused him of doing. Furthermore, he also admitted that he had received and was aware of theEmployee Honesty and Integrity Policy. The Policy contained the warning: "If an employee commitsany act of theft or dishonesty termination of employment will result."74 74. The focus of much of the argument was whether the Grievor's misconduct constituted aform of "dishonesty". It is well established that dishonesty requires proof of intent. (See Re Berto'sRestaurant and Hotel, Motel & Restaurant Employees Union, Local 442 8 L.A.C. (4th) 87 at p. 94as quoted in Canada Safeway Ltd. and U.F.C.W., Local 401 (Brandse) (supra).75 75. The Union argued that the Grievor was flustered and confused and acted out of frustrationand not dishonesty. This would be a compelling argument if it were supported by credible evidence.However, as Counsel for the Employer pointed out, the reasons given as to why the Grievorwas under stress do not stand up to scrutiny. There was no evidence that he was tired or that hisability or mood was affected by circumstances in his personal life, the incident occurred at the verybeginning of his shift, it was his first customer of the day, there were no other customers in linewhen he began the order and only one or two by the time he finished it. Although he'd not achieveda passing mark on the cashier test, that was more than two months ago. He'd been working as a reliefcashier on a regular basis since completing his training and had plenty of time to learn the job.There was evidence that he knew how to do what was required of him: on this same order he'dproperly rung through a bunch of bananas which is sold by weight and must be placed on the scaleto ring through; he'd also entered other produce that was sold by the item. These are the only twoways in which produce is sold; if its not sold by the item, its sold by weight. There was also no reasonfor the Grievor to fear a backlog of work or the disapproval of the Produce Manager when hisstint as a cashier was over. The Produce Department had been fully staffed all morning, it was ingood shape and there was another employee scheduled to work there that afternoon. There was nocredible evidence that there were any extra ordinary demands placed on the Grievor. It was a normalday and the store was not unusually busy. There was no basis for the Grievor to be flustered,confused or stressed.76 76. The Union attempted to distinguish the Grievor's conduct on the basis that, unlike mosttheft cases, there was no hope of financial benefit for the Grievor. Although the Grievor did not

Page 12hope to gain a financial benefit, he was motivated by self interest and an expectation of personalbenefit. His decision to give the customer the asparagus without charge, was his response to the difficultyhe was having with the cash register. His problem was being broadcast to everyone in thearea by the "obnoxious" beeping of the cash register. Just getting the cash register to stop beepingwas a benefit to him and he was able to do that simply by skipping the step of charging the customerfor the product. That step is fundamental to his job responsibilities. By stepping around his obligationto charge the customer for the asparagus, the Grievor was able to benefit in at least two ways:he could silence the obnoxious beeping and thereby hide his lack of skill in the operation of the cashregister from his employer and co-workers and he could get through the customer's order morequickly and possibly get back to the Produce Department sooner.77 77. The Grievor did not hesitate to sacrifice his employer's entitlement to payment in orderto solve his own immediate concerns. He was employed as a cashier, his job was to receive paymentfor the goods. His first and only response to his problem with the cash register was inconsistent withhis obligation to his employer, it was a breach of the faith inherent in the employment relationshipand a violation of an essential condition of his employment.78 78. Although what he attempted was not "sweethearting" in the usual sense, merchandisewhich should have been paid for was given to a customer without charge. The essential character ofthe conduct is not altered by the fact that the customer was a stranger and the Grievor had no expectationof financial benefit. If someone takes your watch without your consent and gives it to astranger, the watch has been stolen and a theft has occurred. The fact that here, an honest customerprevented the theft from taking place, has no bearing on the question of the Grievor's honesty. Thecustomer had to demand that the produce be weighed and rung through. To overcome the Grievor'sinitial resistance, he had to physically remove the produce from the cart, take it out of the bag, put iton the scale and insist that he be charged for it. The Grievor knew that his conduct was wrong becausehe looked right and left, he put his finger to lips and told the customer" Shuss, it's all right".He thought he could get away with this and would have but for the honesty of the customer.79 79. I am not persuaded that customer service was a motivating factor in the Grievor's decisionto give the customer the produce without charging for it. As stated previously, the store was notparticularly busy, there were only one or two customers in line at his till and if he was so concernedabout customer service why did he resist the customer's demand that he be charged for the produce.I believe it more likely that this explanation occurred to the Grievor some time later and at the timeof the incident, he was focused on getting the obnoxious beeping to stop and putting through thecustomer's order so he could return to the Produce Department.80 80. I acknowledge that the Employee Honesty and Integrity Policy was unilaterally introducedby the Employer and is not binding on this process. It does not have the same force as if itwere a negotiated specified penalty clause but it is a policy which has been in place for many years,has been publicized widely by the Employer, was known to the Grievor and has been applied consistentlysubject to review through the arbitration process. The Employer has the onus to establishjust cause81 81. It has long been recognized that the obligation of arbitrators is to examine each case onits unique facts. As Arbitrator Hope stated in Re Canada Safeway Ltd. and U.F.C.W., Loc. 2000(1997), 29 L.A.C. (3d) 176 at p 186-187:

Page 13...accepting that each dismissal must be examined on its unique facts, andaccepting that reinstatement is available for all acts of misconduct, howevergrave, it must be acknowledged that an act of theft or other dishonesty inthe retail food environment places extreme strain on the relationship. Anemployee who admits dishonesty or is found to have acted dishonestly inthat environment must, as stated, establish mitigating facts consistent witha maintenance or restoration of the essential element of trust. . .[The] authorities acknowledge that dishonesty, by its very nature, usuallyresults in an irreparable compromise of the employment relationship. In theretail food industry the opportunity and the temptation for employees tocommit dishonest acts is great. Thus the relationship is generally acknowledgedas having a fiduciary cast wherein all employees can be takento understand that theft or other acts of dishonesty will invite dismissal.82 82. The Supreme Court of Canada in McKinley v. BC Tel (supra) addressed the issue at para48:at para 49:at para 57:... I am of the view that whether an employer is justified in dismissing anemployee on the grounds of dishonesty is a question that requires an assessmentof the context of the alleged misconduct. More specifically, thetest is whether the employee's dishonesty gave rise to a breakdown in theemployment relationship. This test can be expressed in different ways. Onecould say, for example, that just cause for dismissal exists where the dishonestyviolates an essential condition of the employment contract,breaches the faith inherent to the work relationship, or is fundamentally ordirectly inconsistent with the employee's obligations to his or her employer.In accordance with this test, a trial judge must instruct the jury to determine:(1) whether the evidence established the employee's deceitful conducton a balance of probabilities; and (2) if so, whether the nature and degreeof the dishonesty warranted dismissal.... I favour an analytical framework that examines each case on its ownparticular facts and circumstances, and considers the nature and seriousnessof the dishonesty in order to assess whether it is reconcilable withsustaining the employment relationship. Such an approach mitigates thepossibility that an employee will be unduly punished by the strict applicationof an unequivocal rule that equates all forms of dishonest behaviourwith just cause for dismissal. At the same time, it would properly emphasizethat dishonesty going to the core of the employment relationship carriesthe potential to warrant dismissal for cause.

Page 1483 83. McKinley is an important case as it put to rest a line of cases which held that dismissalfollows automatically where theft or dishonesty is proven. The Supreme Court of Canada indicatedthat the question whether an employer is justified in dismissing an employee on the grounds of dishonestyrequires an assessment of the context of the alleged misconduct. Here the context was thepoint of sale in a retail environment where the employees handle cash, supervision is limited andinternal theft may be difficult to detect.84 84. Following the tests set out in McKinley (supra), the evidence here is that the Grievor'smisconduct did violate an essential condition of the employment contract, it was a breach of thefaith inherent to the work relationship and directly inconsistent with the employee's obligations tohis employer. As a cashier, it was his job to receive payment for the goods the customer had selectedand placed in his cart. The Employer was trusting him to do it honestly and accurately. Whenhe encountered difficulty ringing in the asparagus, he made no effort to solve the problem and justgave it away. That is a breach of the trust which the Employer had placed in him.85 85. The facts here are quite unlike the facts in McKinley where the dishonesty was with respectto a collateral matter unrelated to the employee's job duties. Mr. McKinley was an accountantwho suffered from high blood pressure and hypertension. The alleged dishonesty concerned hismedical condition and the treatments available for it.86 86. As stated in the Brown and Beatty text, Canadian Labour Arbitration at para. 7:4400Mitigating Factors:An assessment by an arbitrator of the fairness of a disciplinary penalty willof course depend on the facts of the case. Consideration is invariably givento the nature of the misconduct, the personal circumstances of the employee,the way in which the employer has managed the situation or acombination of all three. (Footnotes omitted).87 87. The authorities recognize that discharge is the appropriate discipline for certain types ofmisconduct even for a single occurrence:Arbitrator Monroe Q.C. stated in Re Simon Fraser University and Association ofUniversity & College Employees, Local 2 (supra) at p. 134:No doubt, the presumption favouring a disciplinary progression is not absolute.Indeed for some offences in some circumstances, the employer's legitimateinterests will demand arbitral acceptance of the penalty of dismissalfor even a single occurrence.Arbitrator Lefsrud in C.W. Carry Ltd. and United Steelworkers of America, Local5575 (supra) recognized that certain offences were serious enough to warrantdischarge without progressive discipline, at p. 10:...if an employer is to terminate an employee for an offence that, of itself,does not warrant discharge, there should be a record of written warningsalong with the imposition of progressive discipline

Page 1588 88. There are many cases involving these parties where dishonesty has been grounds fordismissal even where small sums and long service employees are involved. The following exampleswere provided by the Employer:Safeway and UFCW Local 401 re Szakszon - a 9 year employee was terminatedfollowing a series of incidents where goods were obtained at improperdiscounts. The value of the improper discounts totaled approximately$43.00.Safeway and UFCW Local 401 re Schlekewy - a 22 year employee wasterminated after marking down a packaged ham and then purchasing itherself. The value of improper mark down was $4.99.Safeway and UFCW Local 401 re Fedor - a 24 year bakery employee wasterminated when he was caught eating a pastry without paying for it. It waslater determined that this was not an isolated act.Safeway and UFCW Local 401 re Daniel, Hall and Kaiser - a 7 year and a3 year employee were dismissed when it was discovered that they had improperlydiscounted cheese. The value of the improper discount was$12.28. Ms. Kaiser, the cashier who rang the goods through was reinstatedas it was determined that she was not part of the conspiracy.89 89. I return to Arbitrator Hope's statements in Re Canada Safeway Ltd. and U.F.C.W., Loc.2000 (1997), 29 L.A.C. (3d) 176 at p 186 - 187:...accepting that each dismissal must be examined on its unique facts, andaccepting that reinstatement is available for all acts of misconduct, howevergrave, it must be acknowledged that an act of theft or other dishonesty inthe retail food environment places extreme strain on the relationship. Anemployee who admits dishonesty or is found to have acted dishonestly inthat environment must, as stated, establish mitigating facts consistent witha maintenance or restoration of the essential element of trust.90 90. The case of Wm Scott & Co., [1977] 1 C.L.R.B.R. 1, 1976 CLB 1780 (P.C. Weiler) providesa blueprint of how arbitrators should review disciplinary penalties at pp 5 -6:(I)(ii)How serious is the immediate offence of the employee which precipitatedthe discharge (for example, the contrast between theft and absenteeism)?Was the employee's conduct premeditated, or repetitive; or instead was it amomentary and emotional aberration, perhaps provoked by someone else(for example, in a fight between two employees)?(iii) Does the employee have a record of long service with the employer inwhich he proved an able worker and enjoyed a relatively free disciplinaryhistory?

Page 16(iv)Has the employer attempted earlier and more moderate forms of correctivediscipline of the employee which did not prove successful in solving theproblem (for example, of persistent lateness or absenteeism)?(v) Is the discharge of this individual employee in accord with the consistentpolicies of the employer or does it appear to single out this person for arbitraryand harsh treatment (an issue which seems to arise particularly incases of discipline for wildcat strikes)?91 91. When these principles are applied to the facts before me there is little to suggest that thepenalty of discharge should be mitigated:(I)(ii)Although the amount was small, the duties of the employee and the natureof the retail industry in which he was employed, make this a serious offence,which of itself, often warrants discharge.This was not planned or premeditated and there was no evidence that theemployee had done it before however this was a not case where the employee'smisconduct was an emotional reaction to provocation or unusualstress. The Grievor was performing his regular duties under normal circumstances.(iii) The employee does not have a record of long service although his shortservice is free of any serious misconduct; there is a single but unrelatedprior incident on his record.(iv)The Employer has not attempted more moderate forms of discipline althoughit has for many years publicized its policy of "zero tolerance" foracts of dishonesty or theft.(v) The Employer has consistently applied its zero tolerance policy for acts ofdishonesty or theft and the discharge of this employee was consistent withthis policy. It has not singled out this employee for arbitrary or harshtreatment.92 92. The Grievor said he was sorry as soon as he was confronted with his misconduct butthere was very little evidence that he understood the seriousness of his misconduct or accepted responsibilityfor it. He seemed to believe that this was something that happened to him rather thansomething he did. This was exemplified by his response to Union Counsel's final question as towhat assurance could he provide that this would not happen again if he were reinstated. His answerthat he could not be certain (that it would not happen again) but hoped it wouldn't was undoubtedlyas disappointing to his Counsel as it was to me.93 93. I think the closing comments of Arbitrator Jones in his decision in Szakszon (supra) involvingthese same parties are applicable here:

Page 17...In my opinion, an employer (and particularly an employer in the retail grocerybusiness) has to be able to trust the absolute honesty of each of its employees.While it is true that dishonesty may not always, inevitably and automatically resultin termination (as the Supreme Court of Canada has noted in McKinley), thepossibility of a lesser penalty necessarily presupposes the possibility ofre-establishing the trust relationship. I am satisfied that this cannot be done in thepresent case, particularly given the Grievor's attitude at the hearing and lack oftaking responsibility for her actions.94 94. The Grievor's misconduct was inconsistent with the obligations of his position and violatedan essential term of his employment. It undermined the trust necessary to continue the employmentrelationship. He is not a good candidate for reinstatement as he failed to grasp the seriousnessof his misconduct or take responsibility for it. I can see no reasonable possibility of reestablishingthe necessary trust. Accordingly, the grievance is dismissed.Dated at Calgary, Alberta this 9th day of December 2011.William D. McFetridge* * * * *EXHIBIT LIST1 Collective Agreement between UFCW, Local 401 and Canada Safeway Ltd.2 Agreed Exhibit Book - Tabs 1 - 73 Discipline Notice - July 24/104 Discipline Notice - Oct 26/085 Confidential Statistics re losses due to theft6 Disc recorded interview with Grievor, transcript of which is at Tab 6 of Exhibit 2 (15 minutes)qp/e/qlspi/qllxr/qlhcs/qlced

HUMAN RIGHTS TRIBUNAL OF ONTARIO______________________________________________________________________B E T W E E N:Mike Gary Hummel-and-Transport Training Centres of Canada Inc. and NorthwesternTransport Training and Heavy EquipmentApplicantRespondents______________________________________________________________________2012 HRTO 1489 (CanLII)DECISION______________________________________________________________________Adjudicator:Kevin CleghornDate: July 31, 2012File Number:2010-05710-ICitation: 2012 HRTO 1489Indexed as: Hummel v. Transport Training Centres of Canada Inc.______________________________________________________________________

APPEARANCES)Mike Gary Hummel, Applicant ) For Himself))Transport Training Centres of Canada Inc. ) John Beaudryand Northwestern Transport Training and )Heavy Equipment ))2012 HRTO 1489 (CanLII)

[1] This is an Application under section 34 of Part IV of the Human Rights Code,R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employmenton the basis of disability. The Application alleges that the applicant experienceddiscrimination when his employment was terminated specifically due to his disability.ISSUES FOR DETERMINATION[2] I must determine the following after consideration of all of the evidence:(a) Was the applicant disabled within the meaning of the Code at thetime of the alleged breach? and2012 HRTO 1489 (CanLII)(b) Was any real or perceived disability the applicant may have had afactor in the respondent, Transport Training Centres of Canada Inc.’sdecision to terminate the applicant’s employment?FACTS AND BACKGROUND[3] The applicant acted as the operations manager for Northwestern TransportTraining and Heavy Equipment (hereinafter “Northwestern”) commencing in 1997.Northwestern was purchased by Transport Training Centres of Canada Inc. (hereinafter“TTC”) in 2009. The applicant had a slip and fall accident in the parking lot of hisworkplace on February 3, 2010. He was laid off by his employer approximately twoweeks later. The lay-off was permanent. The applicant indicates that he had no noticeprior to that time that his job was in jeopardy.[4] The applicant testified that eight months prior to the purchase of Northwestern byTTC he was asked by Megan Jones of TTC to open up a school for them. He declinedthe offer but indicates that it is indicative of the respect TTC had for his qualificationsand experience in the industry. The applicant was informed on November 27, 2009 thatNorthwestern had been sold to TTC. He spoke with John Beaudry, president and ownerof TTC, on one occasion prior to December 2, 2009. On December 2, 2009, he hadanother conversation with Mr. Beaudry who advised him that TTC was a nationalcompany which could go one year without revenue being earned by the Thunder Bay

operation. He was asked by Mr. Beaudry to obtain a quote to “glass-in” the building. Hehad no indication at the time that he might be terminated in the near future.[5] The applicant stated that he had been a good, reliable worker at all times. In aconversation with Sarah Fitchett, general manager of TTC, he was informed that TTCmight expand its operation in the region.[6] The applicant was told by his Workplace Safety and Insurance Board (hereinafter“WSIB”) case worker that he was laid off by his employer two weeks after his injury wassustained. He stated that the company at no time informed him of his lay-off and thatthere was no advance warning that he would not have a job at TTC. He had sustained aconcussion and was off work after February 3, 2010. The applicant attended at a walkinclinic for treatment of his injury. He never worked for TTC again after his injury.2012 HRTO 1489 (CanLII)[7] The applicant earned $26.00 per hour, or $700 per week (gross) at TTC at thetime of his lay-off. He also had use of a company vehicle. He worked 45-50 hours perweek. The applicant has an AZ licence. There were no restrictions on his licence at thetime, nor are there any at the current time.[8] The applicant was on WSIB benefits from February 3, 2010 to September 17,2011. He received 80% of his regular wages during that time. He became employed byTaranis, a heavy equipment and truck operator training company, as a recruiter inSeptember, 2011, earning $65,000.00 per year as well as having the use of a companyvehicle. The applicant eventually made a complaint to the Ministry of Labour under theEmployment Standards Act, 2000. He was awarded $10,000.00 plus an additional eightweeks of pay in lieu of notice.[9] John Donald Harris testified on behalf of the applicant. He was employed by TTCas a heavy equipment trainer. He ceased working for TTC in September, 2011 and nowworks for Taranis. He was never asked to evaluate the applicant during his time withTTC as a possible heavy equipment trainer.

[10] Sean McKay also testified on behalf of the applicant. He was employed byNorthwestern and TTC as a classroom instructor and in-cab instructor. He was neverasked to evaluate the applicant as a possible classroom instructor or cab instructor. Theapplicant claims that the failure of TTC to evaluate his potential for other jobs within theorganization demonstrates its desire to terminate him by any means. The injurysustained by the applicant, in his view, provided the means for TTC to improperlyterminate him.[11] John Beaudry testified on behalf of the respondent, TTC. He advised that TTChas 22 locations throughout Ontario. The business model of TTC involves having onemanager and one secretary. The company has a centralized management structure.2012 HRTO 1489 (CanLII)[12] He stated that the applicant was offered reduced pay for a different position inDecember, 2009. The company saw no benefit to continuing the applicant in theoperations manager position he occupied at the time because it was not in accordancewith its business model. The management of TTC’s Thunder Bay branch was to occurfrom Sudbury. The TTC branch in Thunder Bay had five employees in December, 2009,with the applicant as the operations manager in addition to three trainers and onesecretary. After the applicant’s employment was terminated, there were no otherpersons hired. The secretary went on maternity leave thereafter and she eventually wasreplaced with another person.[13] The TTC branch in Thunder Bay has three employees now, specifically a heavyequipment trainer, a truck trainer and an administrative/sales/trainer. Since one personhas to be listed as a campus manager, Dave Robinson has been designated such. Thetwo other trainers report to Debbie McConnell in Sudbury. Mr. Robinson reports to Ms.McConnell as well as to Megan Cunningham in sales and administration.[14] Mr. Beaudry testified that the decision to terminate the applicant was made inDecember, 2009. The applicant was advised verbally by Dan Laroque of that decision.The applicant convinced TTC to look at other options and an additional month was

given to consider the possibility of the applicant assuming a different role for TTC. Theapplicant claimed that no such conversation ever occurred with Mr. Laroque.[15] Mr. Beaudry denied being aware of any disability that the applicant had at thetime of his termination. He rejected the notion that the applicant’s injury sustained inFebruary, 2010 had any bearing on the decision to terminate the applicant.[16] Twenty-two exhibits were provided by the applicant, all of which were filed onconsent of the parties. All of the exhibits were reviewed and considered, but onlyinformation which is relevant to the issues in dispute shall be directly referred to herein.2012 HRTO 1489 (CanLII)[17] Exhibit 2 has attached to it an e-mail from Trish Whittal to John Beaudry datedFebruary 12, 2010. It refers to a conversation which Ms. Whittal had with the WSIB caseworker and it states “I told her that Mike was told over a month ago that his position wasbeing terminated however we tried to change his job to accommodate him and it wasn’tworking out.” The evidence of Mr. Beaudry is that it did not work out because the TTCbusiness model would not be profitable with an additional employee. The applicantlacked the qualifications to handle the additional responsibilities necessary for him toremain at TTC in another, albeit lesser, role.[18] Exhibit 8 includes various documentation relating to the proceeding commencedagainst TTC by the applicant under the Employment Standards Act, 2000. He wasseeking severance pay and claimed reprisal by TTC for the filing of his WSIB claim afterhis slip and fall accident. Employment Standards Officer Cindy Scott wrote in herdecision:“Reprisal discussed with the (applicant) and (TTC), as the (applicant)stated he may have been terminated due to his WSIB claim of February 3,2010, or his knowledge of the previous owner’s financial business, but itwas determined not to be a reprisal. (TTC) was unaware of the(applicant’s) alleged business knowledge and discussions for changes tothe (applicant’s) position/job duties began in December, 2009, previous tothe WSIB claim being filed.” (at page 3)

THE LAW[19] Section 5 of the Code provides as follows:5. (1) Every person has a right to equal treatment with respect toemployment without discrimination because of race, ancestry, place oforigin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age,record of offences, marital status, family status or disability.(2) Every person who is an employee has a right to freedom fromharassment in the workplace by the employer or agent of the employer orby another employee because of race, ancestry, place of origin, colour,ethnic origin, citizenship, creed, age, record of offences, marital status,family status or disability.2012 HRTO 1489 (CanLII)[20] Section 10 of the Code defines disability as follows:(a) any degree of physical disability, infirmity, malformation ordisfigurement that is caused by bodily injury, birth defect or illness and,without limiting the generality of the foregoing, includes diabetes mellitus,epilepsy, a brain injury, any degree of paralysis, amputation, lack ofphysical co-ordination, blindness or visual impediment, deafness orhearing impediment, muteness or speech impediment, or physical relianceon a guide dog or other animal or on a wheelchair or other remedialappliance or device,(b)a condition of mental impairment or a developmental disability,(c) a learning disability, or a dysfunction in one or more of the processesinvolved in understanding or using symbols or spoken language,(d)a mental disorder, or(e) an injury or disability for which benefits were claimed or receivedunder the insurance plan established under the Workplace Safety andInsurance Act, 1997.…Past and presumed disabilities

(3) The right to equal treatment without discrimination because ofdisability includes the right to equal treatment without discriminationbecause a person has or has had a disability or is believed to have or tohave had a disability.[21] The first issue is whether the applicant was disabled at the time of his terminationfrom employment. The applicant was in receipt of WSIB benefits for nearly eighteenmonths in the aftermath of his slip and fall accident. The definition of disability in theCode includes an injury or disability for which WSIB benefits were claimed or received.Accordingly, in the circumstances of this case, the applicant did have a disability at thetime of the termination of his employment. The real issue in this case is whether theapplicant’s disability was a factor in the respondent’s decision to terminate hisemployment.2012 HRTO 1489 (CanLII)[22] The applicant must prove on a balance of probabilities that the respondentdiscriminated against him based on his disability. It is well-established in human rightslaw that the protected ground need only be one factor in the decision made thatadversely affected the applicant; it does not have to be the only or primary reason: seeJanzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.[23] The respondent TTC’s actual termination of the applicant’s employment withintwo weeks after his slip and fall accident may raise suspicions of discrimination, andunderstandably so. The principal question is: was the applicant’s disability in any way afactor in the decision to terminate his employment?[24] The respondent TTC asserts that the decision, made in December, 2009, wasbased on legitimate business reasons and it was not a pretext for discrimination of anysort. I find that the decision to terminate the applicant was, in fact, made in December,2009, a full month or more before the injury that resulted in the disability. I find that therespondent TTC has established that the decision to terminate the applicant’semployment was a business decision in the aftermath of its purchase of Northwestern.This is supported by the totality of the employer’s actions in terms of not hiringreplacement employees, re-assigning responsibilities and/or the general re-structuring

that ensued. There is no evidence that other employees who were treated the same asthe applicant were subsequently hired back or that new employees were hired in theirstead. There is no evidence that, save for the applicant’s suspicions and the unfortunatetiming of his termination, the applicant’s disability was a factor in the decision, directly orindirectly. The position of TTC is buttressed by its internal e-mail communicationbetween Ms. Whitall and Mr. Beaudry which confirms the timing of the discussions onhis possible termination. The respondent TTC started the restructuring before theapplicant was injured. The respondent TTC has provided a non-discriminatoryexplanation for why the applicant’s position, in particular, was selected for termination.To that extent, the rationale I have adopted is similar to that expressed by this Tribunalin McClendon v. Standard Insurance Brokers, 2009 HRTO 2072. I find the evidence ofMr. Beaudry to be credible, uncontradicted and not challenged in any meaningful wayduring cross-examination. In that regard, I have applied the test for credibility asoriginally enunciated in Faryna v. Chorny [1952] 2 D.L.R. 354 (BCCA).2012 HRTO 1489 (CanLII)[25] Although I am not bound by the decision made by Employment Standards OfficerCindy Scott, I find that it is consistent with all other evidence that I have reviewed in thismatter. As such, I am further persuaded that the rationale offered by TTC for itstermination of the applicant does not amount to any breach of the Code. The decision toterminate the applicant was made in December, 2009; it was merely delayed andultimately executed in February, 2010. The fact that it coincided with the injurysustained by the applicant is merely coincidental.[26] Therefore, I find that the applicant’s disability was not a factor in the respondentTTC’s decision-making and that his injury in the workplace did not put him at anydisadvantage thereby. In essence, I find that if the applicant had not had a disability atthe relevant time, the outcome would have been the same.[27] The Tribunal lacks the authority to provide remedies for unfair treatmentgenerally: see Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para.27. The Tribunal also does not have the general power to decide whether therespondent TTC treated the applicant fairly and appropriately: see Tubquabo v.

University of Ottawa, 2010 HRTO 477, at para. 6. This is not about whether theapplicant was a “good” employee; nor is it about whether the respondent TTC should orshould not have created a new position for the applicant or found some other way tokeep the applicant employed. There is insufficient evidence to find, on the balance ofprobabilities, that there was any discriminatory or Code-related basis for the respondentTTC’s decision to terminate the applicant.CONCLUSION[28] I find that the applicant did satisfy the threshold for establishing a disability. Histermination, unfortunately, coincided with the employer’s completion of its plan to adoptits usual business model.2012 HRTO 1489 (CanLII)[29] It was the respondent TTC’s view that the applicant was not disabled in anyevent. Notwithstanding that, there was no position available for the applicant as ofFebruary, 2010 regardless of whether he was fit for work or not. The decision toterminate him was simply not based upon any prohibited ground of discrimination underthe Code.DECISION[30] For all the foregoing reasons, the Application is dismissed.Dated at Toronto, this 31 st day of July, 2012.“Signed by”________________________________Kevin CleghornMember

HUMAN RIGHTS TRIBUNAL OF ONTARIO______________________________________________________________________B E T W E E N:Tony Lagana-and-Saputo Dairy Products Canada G.P.ApplicantRespondent______________________________________________________________________2012 HRTO 1455 (CanLII)DECISION______________________________________________________________________Adjudicator:Eric WhistDate: July 25, 2012File Number:TR-0419-09; 2008-00897-ICitation: 2012 HRTO 1455Indexed as: Lagana v. Saputo Dairy Products Canada G.P.______________________________________________________________________

APPEARANCES)Tony Lagana, Applicant ) Self-represented))Saputo Dairy Products ) Ranjan Agarwal,Canada G.P., ) CounselRespondent ))2012 HRTO 1455 (CanLII)2

[1] The applicant has filed two Applications under the Human Rights Code, R.S.O.1990, c. H.19 as amended, (the “Code”). Application TR-0419-09 was a complaintoriginally filed with the Ontario Human Rights Commission on November 19, 2007. Thiscomplaint was brought before the Tribunal through an Application made under section53(5) of the Code. This Application alleges discrimination in employment on the basisof disability and age and focuses on the applicant’s employment during the period Aprilto December 2007.[2] Application 2008-00897-I is an Application filed under section 34 of Part IV of theCode on December 8, 2008. This Application alleges that the termination of theapplicant’s employment on December 10, 2007 was in reprisal for the applicant havingfiled Application TR-0419-09.2012 HRTO 1455 (CanLII)[3] In an Interim Decision dated November 17, 2009, 2009 HRTO 1943, the Tribunaldetermined that these two Applications would be heard together. In an Interim Decisiondated January 26, 2010, 2010 HRTO 155, the Tribunal removed the named personalrespondents from both Applications and amended the style of cause for bothApplications to make Saputo Dairy Products Canada G.P. the sole respondent.[4] At the hearing I heard testimony from the applicant and three witnesses for therespondent, Pat Roehl, Frank Zbaraschuk, and Rob Castellano. I heard detailedevidence about a series of events that took place during the period April to December2007. I also had extensive documentary evidence before me including medicaldocumentation related to the applicant’s disability, return to work plans, case notesrecorded by the applicant’s Workplace Safety and Insurance Board (WSIB) claimsmanager and correspondence exchanged between the applicant and respondent. Bothparties submitted case law for my consideration. Both parties provided oral and writtensubmissions.[5] Both parties agreed with the basic chronology of events in this case. I havereferenced the respondent’s submissions to set out this chronology and otheruncontested background information.3

[6] I also determined that the hearing would be bifurcated, that I would be decidingwhether the applicant’s rights under the Code were violated and only if I found a Codeviolation would the hearing resume to consider evidence and submissions relating toremedy.BACKGROUND[7] The respondent produces a variety of food products including cheese and dairyproducts. The applicant worked in the respondent’s Woodbridge facility which suppliesthe respondent’s products to pizzerias. The facility includes a warehouse with a fridgeand freezer for food storage. The warehouse operates with three shifts; a day, afternoonand night shift.2012 HRTO 1455 (CanLII)[8] The applicant began working for the respondent in September 2004. He wasemployed as an order picker on the afternoon shift. As an order picker, the applicantwas responsible for preparing orders to be shipped to the respondent’s customers. Hisduties included “picking” products from the warehouse shelves based on a customer’slist, stacking the selected products on a pallet or skid (usually by using a forklift), andthen shrink wrapping the skid. Products weigh up to 40 pounds. Some products haveto be retrieved from the fridge or freezer. In a normal shift an order picker may pickproducts that require 10-15 skids.[9] Some employees and supervisors have an additional duty of “checkingsummaries” which involves checking skids to ensure that customer’s orders wereaccurately filled. All employees are expected to contribute to keeping the facility clean.Some employees are given additional cleaning duties which required riding a sit downsweeper.[10] Rob Castellano was the warehouse supervisor on the afternoon shift and theapplicant’s direct supervisor. Pat Roehl was the Human Resources Advisor responsiblefor human resource issues at the Woodbridge facility. She reported to FrankZbaraschuk, the respondent’s Vice-President for Human Resources-West.4

CHRONOLOGY OF KEY EVENTS[11] The applicant was off work with an injured back in August 2005. He testified thathe also injured his back in December 2006 and at the beginning of 2007 and that hetold Mr. Castellano of this injury. The applicant was clearly of the view that thedifficulties he had with his back were attributable to the demanding nature of his jobpicking orders. The applicant was of the further view that he was assigned particularlychallenging jobs including picking orders for “Enzo’s Truck”.[12] Mr. Castellano acknowledged that the applicant told him in early 2007 that hehad back pain. He testified that it was not unusual for order pickers to have occasionaldifficulties, including difficulties with their backs, given the physically demanding natureof their jobs.2012 HRTO 1455 (CanLII)[13] Mr. Castellano testified that he had an established informal system ofaccommodation. He testified that his practice as a supervisor was to accommodateemployees who informed him that they had an injury or pain by allowing them to carryout the jobs and tasks they felt they were capable of doing and by choosing not to carryout tasks they were unable to. He testified that he would usually talk to the employeeexperiencing a problem and have them identify what they felt they could and could notdo. He testified that an employee would only be expected to provide a doctor’s note ifan injury was serious or persisted and that in these cases he would follow the directionsprovided in the medical note. He testified that he would confer with human resources, ifrequired.[14] Mr. Castellano testified that he recalled accommodating the applicant in early2007 when the applicant identified that he was having back pain by telling him to carryout only the duties he felt he was able to do.[15] On April 23, 2007 the applicant submitted three medical documents to therespondent. One was a doctor’s note stating that “due to a severe spinal condition Ihave advised Mr. Lagana to perform modified duties until further notice. He will be re-5

evaluated within four weeks”. The second note was a WSIB functional abilities form,“Form 7”, that had been filled out by the applicant’s doctor recommended that theapplicant continue with full time hours but with certain limitations including avoidingshrink wrapping pallets/skids, avoiding exposure to the freezer and limiting bending,twisting or repetitive movement. The third document was a note from a physiotherapistwho had been treating the applicant for eight weeks who indicated that the applicantshould avoid any sustained or repetitive bending or heavy lifting.[16] The applicant testified that on April 22 he told Mr. Castellano that he felt theinjury was work related. Mr. Castellano testified that the applicant had told him that hehad injured his back working at home.2012 HRTO 1455 (CanLII)[17] Mr. Castellano testified that the applicant was provided with modified duties. Mr.Castellano testified that the applicant was assigned to cleaning duties that required himto drive a sit down sweeper. He was also assigned to pick special orders. Specialorders required the applicant to pick lighter items for customers who came to thewarehouse facility. Mr. Castellano testified that these were often packages of cheeseweighting less than 5kg. Mr. Castellano testified that the applicant was also loading andunloading trucks (which require no lifting). Mr. Castellano testified that he believed theapplicant went into the fridge on one occasion and that he did not have to go into thefreezer. He testified that he communicated to the applicant if there was a job he couldnot do that he shouldn’t and that he should request help. He testified that he did notrecall the applicant asking others for help and never came to him to complain about hisjob duties.[18] The applicant submits that the respondents failed in their duty to accommodatehis injury during this period. The applicant testified that while he was assigned to domodified duties he was also required to undertake tasks that exceeded his functionallimits as described in his functional abilities form. He testified that he did have to go intothe freezer. He denied that Mr. Castellano ever told him that he could decline toundertake certain tasks. The issue of whether the applicant was required to undertake6

tasks beyond his functional limits in the period April 23 to and May 31, 2007 is animportant issue in this case.[19] On April 27 Ms. Roehl faxed a copy of the applicant’s Form 7 along with the threenotes provided by the applicant on April 23 to the WSIB. She identified on the form thatthe applicant had an illness rather than an accident as it was the respondent’s positionthat the applicant had not been injured at work. The applicant’s WSIB claim waseventually allowed for both health care and lost time and the applicant received loss ofemployment benefits during the period June 1 to September 4, 2007, a period duringwhich he either was not working or was working reduced hours.2012 HRTO 1455 (CanLII)[20] The WSIB was actively involved in the applicant’s return to work efforts duringthe period of April to September 2007. The applicant accessed his WSIB file and thisdocumentary evidence including records of the contact between the WSIB, the applicantand respondent over the period of May to September 2007 was before me. I haverelied on this documentation to make certain findings.[21] On May 22 the applicant provided a further medical note from his doctor sayinghe was able to continue with light duties until June 4.[22] On May 22 the applicant also met with his supervisor, Mr. Castellano. Theapplicant testified that during this meeting Mr. Castellano made a number of commentsthat the applicant found to be harassing and discriminatory in nature. He testified thatthese comments indicated that Mr. Castellano did not accept that the applicant had asignificant injury, that he was opposed to having to continue to provide accommodationfor the applicant, that Mr. Castellano was of the view that the applicant was too old forhis job. Mr. Castellano denied these comments, contending that the applicantmisunderstood or misconstrued the comments he did make. An important issue in thiscase is whether Mr. Castellano’s behaviour on May 22 can be considered harassmentand evidence that he treated the applicant in a discriminatory manner.7

[23] The applicant continued to work until May 31 at which time he provided a furthermedical note from his doctor recommending that the applicant be off work until June 18.[24] The applicant met with Ms. Roehl on June 4 to discuss concerns the applicanthad about Mr. Castellano and his future return to work. It is agreed that the applicanttold Ms. Roehl that he was of the view that Mr. Castellano was requiring him to carry outtasks beyond his medical restrictions. The applicant contends that he also told Ms.Roehl about his meeting with Mr. Castellano on May 22 and that Mr. Castellano hadharassed him. The applicant testified that Ms. Roehl told him that she would raise thisconcern with Mr. Zbaraschuk.2012 HRTO 1455 (CanLII)[25] Ms. Roehl denies that Mr. Castellano raised any allegations of harassment anddiscrimination. She testified that Mr. Castellano’s concern focused on his workassignments including his contention that he had been assigned to pick orders forEnzo’s truck, a job the applicant considered to be particularly demanding and had beenrequired to wrap pallets, go into the freezer and to pick 500 items per shift. Ms. Roehltestified that she spoke to Mr. Castellano who maintained that he had assigned theapplicant modified duties after the applicant provided his doctor’s note and the Form 7on April 22 and that he explicitly indicated to the applicant that if a task was beyond hiscapacity because of his back that he should not do it.[26] Ms. Roehl testified that she reported the applicant’s complaints about the natureof his work assignments as well as the subsequent information she received from Mr.Castellano to Mr. Zbaraschuk. Mr. Zbaraschuk testified that Ms. Roehl did report to himthat the applicant had complained about Mr. Castellano and that he subsequently spoketo Sam Bianco, the day shift supervisor. He testified that Mr. Bianco told him thatemployees are expected to pick 500 items per shift and that while filling orders forEnzo’s truck is a major job (it requires 1800 picked items) three employees usually pickitems for it, suggesting, in effect, that it was not a more onerous job assignment. Mr.Zbaraschuk testified that he also spoke to Mr. Castellano who told him that he had aninformal practice of accommodating employees with minor injuries by allowing them to8

do what they can and that if someone came with a medical note he would look at whatthe person could do.[27] On June 7 the applicant’s doctor completed a new functional abilities form whichstated that the applicant was physically unable to return to work at the time. The doctorindicated that this assessment would apply for approximately 8-14 days and that thedoctor was recommending a further appointment with the applicant in mid-June toreview the applicant’s abilities and/or restrictions. The applicant provided this form to therespondent on June 12. On June 28 the applicant provided a note from his doctorstating that he was able to start work on July 3, 2007 with light duties for four hours aday with breaks.2012 HRTO 1455 (CanLII)[28] I also heard evidence as to whether the respondent had modified work for theapplicant for the month of June. The respondents initially indicated to the applicant thatthere was no modified work they could offer him past June 1. There is further evidencethat there were discussions during the month of June involving the applicant, therespondent and the WSIB claims manager about identifying modified work for theapplicant that I will refer to later. The applicant contends that the respondent failed in itsduty to accommodate him during June 2007.[29] The applicant returned to work on July 3. When the applicant returned to work hewas placed on the day shift in a modified position with reduced hours, pursuant to hisdoctor’s note of June 28. The applicant reported to the day shift supervisor, SamBianco. The applicant was in this modified position on the day shift from July 3 to Aug31. The applicant testified that he had no health related issues while working in thisposition. The applicant testified that while on the day shift he was mainly loading andunloading trucks using a pallet mover or forklift.[30] The applicant provided a further functional abilities form from his doctor to therespondent dated July 20. The applicant’s doctor recommended that the applicantcontinue with modified duties for four hours a day until September 4. On August 16, theapplicant underwent an assessment at the Humber River Hospital in response to a9

equest from WSIB. This assessment recommended that the applicant continue withhis current modified duties for the next four weeks and then over the next two weeksincrementally increase his hours to full time.[31] On August 27 the respondent presented the applicant with a return to work planthat continued his modified duties and reduced hours on the day shift until August 31but then indicated that the applicant would return to modified duties with reduced hourson the afternoon shift beginning September 4 with the applicant reporting to Mr.Castellano. The plan called for the applicant to gradually increase his hours of workfrom September 4 to October 5 at which time he would return to his full time regularduties on the afternoon shift.2012 HRTO 1455 (CanLII)[32] The applicant objected to this return to work plan, complaining that he had notbeen consulted, that Mr. Castellano and Mr. Bianco had not been consulted, that heinterpreted the Humber River’s assessment that he continue with current modifiedduties as recommending that he stay on the day shift and that he believed that Mr.Castellano would violate the requirements of the return to work plan by requiring him todo work that exceeded his physical limitations.[33] The respondent provided the applicant with a revised return to work plan onAugust 31 and indicated that Mr. Bianco and Mr. Castellano had reviewed the revisedplan and had agreed to it. The plan still required the applicant to return to the afternoonshift on September 4 but slightly altered how returning to full time work would be phasedin. Mr. Zbaraschuk testified that the respondent did not agree with the applicant that theHumber River Hospital’s assessment that the applicant should continue with currentmodified duties required that the applicant remain on the day shift. Mr. Zbaraschuktestified that he reviewed the return to work plan with Mr. Castellano and communicatedthe respondent’s expectations that Mr. Castellano would meet his obligations toaccommodate the applicant under this plan.[34] On September 4 the applicant returned to a modified position on the afternoonshift as directed to do. The applicant worked for approximately two and half hours10

checking summaries before stating that he had reinjured his back and was unable tocontinue. The applicant was of the view that checking summaries was a job task beyondhis functional limitations. This was the last day the applicant worked.[35] On September 7 the applicant, Ms. Roehl and the applicant’s WSIB casemanager held a conference call. The applicant indicated that he was of the view thatthe day shift was more suitable noting that it did not require him to check summaries. Itwas agreed that a WSIB ergonomist would visit the warehouse and assess whether theproposed work duties for the applicant on the afternoon shift, in particular checkingsummaries, were within the restrictions set out in the Humber River Hospitalassessment and the applicant’s July 20 functional abilities form.2012 HRTO 1455 (CanLII)[36] On September 12 WSIB ruled that it would not provide the applicant with loss ofearnings benefits past September 4 because it was of the view that the modified job onthe afternoon shift as described in the August 31 return to work plan was suitable.[37] On September 21, a WSIB ergonomist visited the warehouse to conduct anassessment of the applicant’s job duties. The ergonomist then told the applicant andthe respondent that he had determined that the duties offered to the applicant on theafternoon shift, including checking summaries, were within the applicant’s medicalrestrictions.[38] Later in this September 21 meeting the applicant stated that he had been subjectto harassment and discrimination by Mr. Castellano. The respondent submits that this isthe first time these allegations were raised with the respondent contrary to theapplicant’s contention that he raised these allegations with Ms. Roehl on June 4. Mr.Zbaraschuk indicated at the meeting that he would conduct an investigation into theapplicant’s allegations. Mr. Zbaraschuk testified that it was further agreed at themeeting that the applicant’s return to work plan would be modified so that when theapplicant returned to work (following his September 4 injury) the applicant would stillreturn to the afternoon shift but would report to Sam Bianco or Jerry Perritore (another11

supervisor) rather than Mr. Castellano until the allegations of harassment anddiscrimination raised by the applicant were investigated and addressed.[39] On September 24 the applicant met with Mr. Zbaraschuk and Mr. Bianco todiscuss his allegations of discrimination and harassment. Mr. Zbaraschuk testified thatat this meeting the applicant stated he would never report to Mr. Castellano no matterwhat the outcome of the investigation. He testified that the applicant indicated he waswilling to report to Mr. Bianco on the day shift.[40] Mr. Zbaraschuk met with the applicant again on October 1 to discuss theapplicant’s allegations of harassment and discrimination and asked the applicant againto return to the afternoon shift. He testified that again the applicant refused to return tothe afternoon shift saying he would never work for Mr. Castellano. Mr. Zbaraschuktestified that the respondent’s goal was to return the applicant to his pre-injury positionon the afternoon shift and that placing him in a position on the day shift was not analternative that the respondent considered reasonable as it would have requireddisplacing a person on that shift.2012 HRTO 1455 (CanLII)[41] Mr. Zbaraschuk testified that consideration was given to putting the applicant inanother position. He testified that in October the applicant was told about two full timewarehouse positions that were becoming available that the applicant could compete for.Mr. Zbaraschuk testified that the applicant told him these positions were not appropriateas he still required modified duties. Mr. Zbaraschuk testified that he was surprised bythis as the applicant’s July 25 function abilities form and the Humber River HospitalAugust 16 assessment suggested that the applicant would have been able to return tofull time duties by October.[42] In a letter dated December 3, 2010 Mr. Zbaraschuk advised the applicant of hisinvestigation findings. Mr. Zbaraschuk advised the applicant that based on theinterviews he conducted with staff that the applicant’s allegations of discrimination andharassment were unfounded and that there was no evidence to support the applicant’scontention that he brought these allegations of discrimination and harassment to Ms.12

Roehl in June or to the respondent at any time prior to the September 21 meeting withthe WSIB ergonomist. The applicant submits that the investigation was not broadenough in scope and that there was documentary evidence to support his contentionthat Ms. Roehl was aware of his allegations prior to September 21.[43] Mr. Zbaraschuk concludes his December 3, 2009 letter to the applicant by statingthat in light of the investigation findings it was the respondent’s expectation that theapplicant would report for the afternoon shift on December 10, 2007 and if the applicantfailed to do so the respondent would consider the applicant to have resigned hisposition.2012 HRTO 1455 (CanLII)[44] The applicant did not report to work on December 10. The respondent then sentthe applicant a letter dated December 10 stating that it considered that the applicanthad abandoned his position and, accordingly, his employment was terminated as ofDecember 10, 2007.[45] The applicant testified that he filed his complaint, T-0419-09, with theCommission on November 19, 2007 and was of the view that the respondent wouldhave been aware of this complaint prior to its decision to terminate his employment onDecember 10. The applicant submits that the decision to terminate his employmentwas in reprisal for his filing of a complaint with the Commission.[46] Mr. Zbaraschuk testified that the respondent did not receive a copy of theapplicant’s Commission complaint until sometime later in the week of December 10-14and as such, it could not have been a factor in the respondent’s decision to terminatethe applicant’s employment.ANALYSIS AND DECISION[47] There was no dispute at the hearing that the applicant’s back injury constitutes adisability within the meaning of the Code. The key issues in this case relate to whether13

the respondent met its duty to accommodate the applicant’s disability. Failure to do sowould constitute discrimination on the basis of disability.[48] The applicant’s allegation of discrimination on the basis of age was raised in thehearing in one specific context which is when the applicant alleged that Mr. Castellanomade an offensive comment about his age during a conversation on May 22. I will dealwith allegations of age discrimination in the context of this incident.[49] The applicant’s allegation of reprisal arises in relation to the termination of theapplicant’s employment and I will address it in this context.2012 HRTO 1455 (CanLII)The Application relates to sections 5, and 17 and 8 of the Code. Section 5 provides:5. (1) Every person has a right to equal treatment with respect toemployment without discrimination because of… disability.(2) Every person who is an employee has a right to freedom fromharassment in the workplace by the employer or agent of the employer orby another employee because of… disability and age.Section 17 sets out an employer’s duty to accommodate a disability. It provides:17. (1) A right of a person under this Act is not infringed for the reasononly that the person is incapable of performing or fulfilling the essentialduties or requirements attending the exercise of the right because ofdisability.(2) No tribunal or court shall find a person incapable unless it is satisfiedthat the needs of the person cannot be accommodated without unduehardship on the person responsible for accommodating those needs,considering the cost, outside sources of funding, if any, and health andsafety requirements, if any.Section 8 sets out the Code’s provisions on reprisal. It provides:8. Each person has a right to claim and enforce his rights under this Act,to institute and participate in proceedings under this Act and to refuse toinfringe the right of another person under this Act without reprisal or threatof reprisal for doing so.14

Section 10 of the Code defines harassment. It states:10(1) “harassment” means engaging in a course of vexatious commentor conduct that is known or ought reasonably to be known to beunwelcome[50] The applicant has the onus of proving, on a balance of probabilities that aviolation of the Code has occurred. A balance of probabilities means that it is morelikely than not a violation has occurred.Clear, convincing and cogent evidence isrequired in order to satisfy the balance of probabilities test. See F.H. v. McDougall,2008 SCC 53, at para.46.2012 HRTO 1455 (CanLII)[51] It is also appropriate to note here that in determining credibility, I follow theTribunal’s usual practice of relying on the test set out in Faryna v. Chorny, [1952] 2D.L.R. 354 (B.C.C.A.):The credibility of interested witnesses, particularly in cases of conflict of evidencecannot be gauged solely by the test of whether the personal demeanour of theparticular witness carried conviction of the truth. The test must reasonablysubject his story to an examination of its consistency with the probabilities thatsurround the currently existing conditions. In short, the real test of the truth of thestory of the witness in such a case must be its harmony with the preponderanceof the probabilities which a practical and informed person would readily recognizeis reasonable in that place and in those conditions…The principal issues to be decided in this case are:1) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in April and May 2007?2) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in June 2007?3) Did Mr. Castellano subject the applicant to harassment during their meetingon May 22?15

4) Did the respondent meet its duty to investigate the applicant’s complaint ofharassment and discrimination under the Code?5) Did the respondent meet its duty to accommodate the applicant up to thepoint of undue hardship when it required that the applicant return to a positionon the afternoon shift?6) Was the decision to terminate the applicant’s employment discriminatory or inreprisal for the applicant exerting his rights under the Code?1) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in April and May 2007?2012 HRTO 1455 (CanLII)[52] An employer must reasonably accommodate the needs of an employee with adisability unless accommodation would result in “undue hardship”. The Supreme Courtof Canada has accepted that the duty to accommodate has both a procedural and asubstantive component. See British Columbia (Public Service Employee RelationsCommission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) andBritish Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council ofHuman Rights), [1999] 3 S.C.R. 7868. The procedural component requires that therespondent employer take steps to understand the employee’s disability-related needsand undertake an individualized investigation of potential accommodation measures toaddress those needs. The substantive component of the analysis considers thereasonableness of the accommodation offered or the respondent's reasons for notproviding accommodation. It is the respondent who bears the onus of demonstratingwhat considerations, assessments, and steps were undertaken to accommodate theemployee to the point of undue hardship, see Meiorin.[53] In deciding whether the respondent met its duty to accommodate the applicantduring the period April 23 to May 31, 2007 I would first note that I am satisfied, basedon the evidence before me that the respondent did assign the applicant modified dutiesin response to the functional abilities form the applicant provided on April 22. Theevidence is that the applicant was assigned to pick special orders that required reducedlifting. He was assigned additional cleaning duties and, it appears, additional workloading and unloading trucks. However, the more difficult issue is whether the applicant16

was assigned duties that required him to work beyond the restrictions outlined in hisfunctional abilities form and that would lead me to find that the respondent failed in itsduty to accommodate?[54] Mr. Castellano testified that he did not assign duties that exceeded theapplicant’s medical restrictions. He testified that the applicant was not required to shrinkwrap and never had to go into the freezer, tasks that were beyond the applicant’srestrictions. The applicant indicated that he was required to enter the fridge and freezerduring this period. Mr. Castellano testified that the applicant was told he could declineto do a task if he was of the view he could not do it. The applicant denied that he wasgiven this discretion. These differing accounts raise an issue of credibility. Whoseaccount do I find to be more credible?2012 HRTO 1455 (CanLII)[55] I do not find either account to be entirely credible on all points. I do not find theapplicant’s contention that Mr. Castellano never told him that he could decline work thatmight affect his back to be credible. I prefer Mr. Castellano’s testimony that he did saythis to the applicant as it was his general practice to tell an employee that they coulddecline work when injured. I accept that this was part of an informal accommodationpractice used by Mr. Castellano in a work environment where it appears there was anongoing need to manage short term and informal requests for accommodation becauseof the physical demands of the work.[56] That said, I do not find Mr. Castellano credible when he testified that in April andMay the applicant only entered the fridge on one occasion and never entered thefreezer and that the applicant never performed tasks beyond his medical restrictions. Iprefer and accept the applicant’s testimony that there were indeed occasions where hewas required to carry out work beyond his restrictions that included, for example, havingto go into the freezer.[57] In making this credibility assessment in favour of the applicant’s testimony thathe did carry out work beyond his restrictions, I find it significant that it was agreed byboth sides that the applicant told Ms. Roehl on June 4 that he was required to work17

eyond his restrictions. This was the testimony of the applicant, Ms. Roehl and Mr.Zbaraschuk. In other words it was not disputed that the applicant was claiming that hewas obliged to work beyond his restrictions shortly after the period in question.[58] In making this credibility assessment I have also relied on the fact that thequestion of whether the applicant had to carry out work beyond his restrictions in Apriland May 2007 was very much an issue that was considered by the applicant’s WSIBcase manager, as documented in her case notes. The case manager makes thefollowing notes after a conversation with Ms. Roehl on June 12:2012 HRTO 1455 (CanLII)IW [Injured Worker] informed her [Ms. Roehl] that he didn’t feel that workhe was doing previously was suitable–he had medical restrictions that he could not go into freezer and couldn’tdo the shrink wrapping job but was asked to do this–she asked his supervisor about this who denied that he was being askedto do this; he was only responsible for light order picking[59] On June 14 the WSIB case manager has a conversation with the applicant andmakes the following notes:With regard to the modified duties IW was doing until he stopped workingit consisted of the following:-Ist 3 hrs was required to pick orders in the fridge/freezer-lifting restriction was to 10 kilos-did not exceed thisWhen getting product he’s required to bend and forward reach-thisaggravates his backHe would also do some forklift driving and when driving backwards thetwisting of his back would increase soreness-he was required to shrink wrap which involved pulling a roll of wraparound the skid manually –this increased his back pain18

-last portion of the day he levels and picks up cardboard from floor-cardboard is large pieces and could range up to 300 pieces-leveling involves adjusting boxes on skids –he’s required tosqueeze through tight areas to get to certain boxes-the awkward back positions aggravate his backI will verify with AE [accident employer] whether Job Description isaccurate if versions are inconsistent I will have ergonomist perform ass’t[assessment]2012 HRTO 1455 (CanLII)[60] On June 19 the case manager spoke to the applicant’s doctor and records in hernotes:I explained that AE has modified duties and explained what they were:general clean up sit down sweeper, forklift, standing and writingsummaries, filingDr. Nagdhi responded that IW is able to do office type work, and agreedwith standard back precautions that I tend to follow-she explained that IW was doing OK, but his condition had worsenedwhile doing the modified work as she felt it wasn’t suitable…I explained due to different versions of the job description I wouldarrange for an ergonomist to visit the worksite with wpps [workplaceparties] present to make a ruling on the risk factors for aggravating a lowback conditionShe strongly agreed with this-in the meantime I will clarify IW had appropriate modified duties for IW[61] On June 20 the WSIB case manager leaves a message for Ms. Roehl to contacther about the details of the modified position as described to her by the applicant onJune 14. It appears the case manager was unable to make contact with Ms. Roehl andsubsequently contacts Mr. Castellano by telephone and records that:19

Rob confirmed the IW’s duties as described-he agreed the job may not be suitable for someone with a backinjury but said that was all he had available and the IW is willing totry the job[62] Mr. Castellano testified that his conversation with the WSIB case manager wasvery short, that he did not recall being given a list of the applicant’s job duties to confirmor that he indicated that the applicant’s job duties may not be suitable for the applicant.[63] I find the WSIB case manager’s notes to be corroborating evidence that supportsthe applicant’s contention that he performed tasks beyond his medical restrictions inApril and May. It is relevant, in my view, that the WSIB case manager is an independentthird party making contemporaneous notes of her phone conversation with the applicantand Mr. Castellano.2012 HRTO 1455 (CanLII)[64] I find that the fact that these prior statements were made goes to the consistencyof the applicant’s testimony and is evidence that contributes to my preferring thetestimony of the applicant that he was working beyond his restrictions. I find itparticularly significant that the WSIB case manager also records that Mr. Castellanoacknowledged that the applicant was working beyond his restrictions.[65] The respondent submits that the applicant should have called the WSIB casemanager if he wanted to rely on the case manager’s notes, particularly given that Mr.Castellano did not agree with the case manger’s account of their telephoneconversation on June 20. I do not agree that this was necessary. I am of the view thatthe applicant is entitled to admit these notes as evidence that the statements weremade and as discussed above, I am also of the view that it is reasonable for me toattach some weight to the WSIB case manager’s contemporaneous notes about aseries of related conversations about the specific issue of whether the applicant wasworking beyond his restrictions. This is particularly so in light of the testimony of Mr.Castellano who testified that he did not recall the particulars of his conversation with theWSIB case manager.20

[66] I recognize that some of the concerns that the applicant expressed to the WSIBcase manager were about tasks that appear to be within his restrictions and their impacton his back, for example complaints that driving a forklift and bending and lifting productless than 10 kilos. Nonetheless, the applicant was also clearly raising concerns abouttasks beyond his restrictions.[67] I also recognize that some of the applicant’s complaints to Ms. Roehl on June 4were about tasks Mr. Castellano assigned to the applicant that occurred before April 22,most notably having to work on Enzo’s truck. But again I am satisfied that the applicantwas also complaining about what was happening after April 22.2012 HRTO 1455 (CanLII)[68] The respondent maintains that there was a standard proviso that the applicantdid not have to undertake a task he felt he could not do, that Mr. Castellano had told theapplicant he could decline to do a task. This respondent submits this is, in effect, aprocedural safeguard to help protect the applicant from injury and as such is anappropriate accommodation.[69] As stated earlier I am of the view Mr. Castellano did have an informal practice ofletting employees decline work and, in my view, a reliance on employees self-regulatingtheir work may be a reasonable accommodation measure when employees havereported a minor injury and when there are no clearly identified medical restrictions. Itmay also be a reasonable accommodation with an employee who has identified medicalrestrictions when they are told that they can decline to undertake a task that is withintheir restrictions in order to protect them from aggravating their condition. However, thisinformal approach is not so appropriate in situations, such as the applicant’s, where anemployee has defined medical restrictions and has job functions that potentially extendto tasks beyond these restrictions. It is not appropriate, in my view, to have anemployee potentially undertake tasks beyond their modified duties with a proviso thatthey do not have to do these tasks if it further aggravates their condition. In my view theapplicant did have tasks that took him into the fridge and freezer and I accept his claimthat there were occasions that he had to shrink wrap product during this period. In myview the respondent needed to have a more formal established protocol that expressly21

made it clear that the applicant should not perform tasks beyond his medicalrestrictions.[70] I do agree with the Tribunal’s decision in Colella v. Toronto Catholic DistrictSchool Board, 2010 HRTO 2224, that the Code does not require a standard ofperfection, and every technical violation of a medical restriction will not necessarilyamount to a finding of a breach of the Code. However, I am satisfied, based on theevidence before me, that the applicant’s duties in April and May included some tasksthat were beyond his restrictions and consequently the respondent failed in its duty toaccommodate the applicant during this period. This constitutes a violation of theapplicant’s rights under the Code.2012 HRTO 1455 (CanLII)[71] I would briefly note here that the applicant also complained that other personswho were given modified duties were not required to undertake modified duties tasksassigned to the applicant, for example, using the sit down sweeper. I accept therespondent’s testimony that this was because modified duties were assigned accordingto the nature of the injury and that these other two employees who respectively had ashoulder injury and a foot injury were not given a job using the sit down sweeperbecause of the difficulty they would have in driving the sweeper.2) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in June 2007?[72] There was evidence before me to suggest that the respondent was not initiallygoing to offer the applicant modified work in June. Mr. Castellano testified that therewas limited modified work available in June because of the number of persons on theafternoon shift who had injuries requiring accommodation. Ms. Roehl submitted a formto WSIB in May (page four of the WSIB Form 7) stating that “Saputo will be able toaccommodate the modified light duties until June 1 (inclusive) but will not have theselight duties after this date and that this is due to the light duties not being designated toone employee each day. The light duties are shared with all employees. Mr. Lagana22

was made aware on May 22/07 that his modified duties would not be made availableafter June 1, 2007.”[73] The fact that the respondent was of the view that they could and would notprovide modified duties for the applicant after June 1 could potentially give rise to afinding that the respondent did not meet its duty to accommodate the applicant in June.However, in my view there is evidence that the respondent was attempting toaccommodate the applicant after June 1. There is further evidence that raises aquestion as to whether the applicant was available to work in June and, if so, with whatrestrictions.2012 HRTO 1455 (CanLII)[74] According to the WSIB case manager’s notes of June 1, 2007 the respondentoffered the applicant a modified position driving a forklift beginning June 4 but theapplicant was concerned that he could not perform this job because he believed drivinga forklift in reverse would aggravate his back. On June 4 Ms. Roehl provided theapplicant with a blank functional abilities form for his doctor to fill in to clarify whatmodified work the applicant would be able to do.[75] The applicant’s doctor completed a functional abilities form for the applicant onJune 8. The doctor indicates that the applicant is physically unable to return to work andthat his next assessment is scheduled for mid-June. This functional abilities form doesnot identify the applicant’s abilities and/or restrictions and provides no expected returnto work date.[76] The efforts to accommodate the applicant continued. According to the WSIBcase manager’s notes of June 21 the respondent offered the applicant a sit downsweeper position for four hours a day and that the applicant was agreeable to thisarrangement and was prepared to return to work on Monday June 24. I heard noevidence as to why the applicant did not return to this offered modified position.However, shortly thereafter, the applicant provided the respondent with a doctor’s notedated June 28 stating that the applicant could return to light duties with reduced hourson July 3.23

[77] The applicant did contend that he was cleared to return to work on June 18,pursuant to the May 31 note from his doctor and the respondent failed in its duty toaccommodate him after this date. However, following his May 31 note the applicant’sdoctor provides a functional abilities form on June 8 indicating that the applicant wasunable to work, provides no date of expected return and indicates that the applicantwould be subject to a further assessment in mid-June. The functional abilities form doesnot identify the applicant’s abilities and restrictions. In my view the applicant has notshown that he had medical clearance to return to work on June 18 or, as importantly,what his functional abilities and limitations were at that time that the respondent wouldneed to accommodate. Information about the applicant’s restrictions was not provideduntil June 28 when the applicant’s doctor indicates that the applicant is able to return tolight duties with modified hours.2012 HRTO 1455 (CanLII)[78] I do not find that the respondent failed in its duty to accommodate the applicant inJune given its efforts to find a modified position for the applicant and the fact that theapplicant does not provide medical information about what work he could do upon hisreturn to work until June 28.3) Did Mr. Castellano subject the applicant to harassment during their meeting onMay 22?[79] The applicant detailed his allegations regarding his meeting with Mr. Castellanoin his September 24, 2007 letter to Mr. Zbaraschuk.The applicant identified Mr.Castellano as making the following comments during their May 22 meeting:“How do you know you didn’t hurt your back building your pond?”“When you applied for this job I was supervisor, I would never have hiredyou because of your age”.“When I became supervisor I could have let you go because you did notmeet my numbers”“When you get back to full time duties you will be doing exactly the samething, nothing changes”24

“To be honest Tony I don’t know what you are doing here. You’re such agreat landscaper… Why don’t you do thatMr. Castellano told the applicant that he was looking for handouts and that“What do you think, the company will hand you a job because you arehurt”Mr. Castellano questioned the applicant’s medical notes and commented“What is this? What are you going to bring me next… another note formore time? What do you think… we have light duties forever?[80] The applicant testified that he asked Mr. Castellano why he was not helping himand that he was of the view that Mr. Castellano essentially did not believe that he had asignificant injury and that this explained the way in which Mr. Castellano was treatinghim. The applicant testified that he was distraught. He testified that the meeting lastedan hour to an hour and a half.2012 HRTO 1455 (CanLII)[81] Mr. Castellano testified that he did not make the statements attributed to him bythe applicant. He testified that he did ask the applicant about whether he had hurt hisback building his pond on another occasion, on a Monday when the applicant had cometo work and had complained about working on his pond over the weekend and hadasked for modified work. Mr. Castellano denied stating that he would never have hiredthe applicant for his age. He testified that the applicant was a good worker and that theonly time age was discussed was when he was explaining the difference between ageand seniority to the applicant and that older workers were not at a disadvantage inpromotions now that the company was no longer relying on seniority in makingpromotional decisions. Mr. Castellano testified that the applicant raised the issue of notmeeting an expectation to pick 500 items per shift and that Mr. Castellano had assuredthe applicant that not to worry that picking 500 items per shift was a goal, that he hadnever fired a person for low production but that he had spoken to employees whopicking less (for example between 250-300 items) to say that they needed to be moreproductive. He testified that he had spoken to the applicant once, soon after becominga supervisor in 2005 about low production but that this had not continued to be an issuewith the applicant. Mr. Castellano testified that the issue of “handouts” came up in the25

context of a discussion about recent internal job postings for a warehouse clerk and asalesperson with the applicant believing Mr. Castellano had some authority to help theapplicant get these jobs with Mr. Castellano explaining that he did not. Mr. Castellanodenied having made the comment “what do you think the company will hand you a jobbecause you are hurt” and a comment in response to the applicant bringing a medicalnote and asking the applicant if he believed that the respondent would provide lightduties forever.[82] Mr. Castellano testified that the whole tenor of his conversation with the applicantwas his trying to console the applicant who was distressed about the fact that he had aninjured back, was worried about his future and was feeling dejected and depressed. Mr.Castellano estimated that the meeting lasted for two hours.2012 HRTO 1455 (CanLII)[83] It is difficult to determine what exactly took place during this meeting. It isentirely possible, in my view, that during this conversation the applicant did complainabout his work and that Mr. Castellano tried to console the applicant who wasexpressing concerns about his injured back and his future. I find it significant that themeeting on May 22 was at least an hour in duration which supports, in my view, that itwas a broad ranging conversation addressing multiple issues.[84] However, ultimately I do not find the applicant’s claim that he was harassedduring this conversation to be credible. To begin with I am not prepared to accept theapplicant’s verbatim recollections of the conversation and the alleged harassingcomments that he recorded in a letter to Mr. Zbaraschuk four months later onSeptember 24, 2007 and which I have quoted above. In my view these are more likelyapproximations of comments the applicant identifies as occurring. Moreover, theapplicant has not shown how a number of these alleged harassing comments wouldconstitute harassment under the Code. It is not clear, for example why Mr. Castellanosuggesting that the applicant may have hurt his back at home or suggesting that theapplicant would be better off working as a landscaper or making a comment about theapplicant not meeting a work quota constitutes harassment under the Code. Commentsto the effect that Mr. Castellano may not have wanted to hire the applicant because he26

is older, or believed that the applicant was exaggerating the nature of his injury or thatMr. Castellano was unwilling to continue to accommodate the applicant can moreclearly be considered to be harassing in nature.[85] However, I find Mr. Castellano’s testimony about the general tenor of theconversation on May 22 that the applicant was upset about his back and his futureprospects, and that Mr. Castellano was trying to be supportive, to be credible. I find itsignificant that, according to both, the applicant and Mr. Castellano used to be goodfriends (they socialized together) and I accept that the nature of the meeting was notconfrontational in nature.2012 HRTO 1455 (CanLII)[86] I find Mr. Castellano credible when he suggests that he believed the applicant tobe a good worker, that he did not have an issue with his age and that his commentsabout the applicant’s age arose when he was explaining the distinction between ageand seniority and its effect on the applicant’s opportunity for other jobs within thecompany. I find Mr. Castellano credible when he described the applicant as a goodworker, that the discussion about handouts had arisen in reference to other jobs theapplicant might apply for, that Mr. Castellano believed the applicant had other skills as alandscaper all to be credible. I accept Mr. Castellano’s testimony when he deniedhaving stated that he would not have hired the applicant because of his age, that hebelieved the applicant had exaggerating his injury and that he would not be able toaccommodate the applicant forever. It is possible, in my view, that Mr. Castellano couldhave said something that the applicant found difficult to accept or even offensive but Iam not prepared to find, based on the evidence before me that comments made by Mr.Castellano during the May 22 meeting comments constitute harassment or evidence ofdiscrimination on the basis of age or disability.[87] It is significant in my view that the applicant’s claims of harassment are notconfirmed by any contemporaneous record. The applicant testified that he told theWSIB case manager that he was subject to harassment by Mr. Castellano. However,this information is not recorded by the case manager in her notes. The applicantsuggests that this was because the case manager only wrote what she wanted.27

[88] The applicant also states in his Application that he told two fellow employeesabout this harassment. Mr. Zbaraschuk interviews these two employees as part of hisinvestigation. According to Mr. Zbaraschuk’s investigation report one of theseemployees tells Mr. Zbaraschuk that the applicant had complained to him about theduties assigned by Mr. Castellano but had never complained that he had been subjectto harassment or discrimination. The other employee tells Mr. Zbaraschuk that theapplicant had approached him saying he wanted to meet to discuss an issue but thatthe applicant had never followed up with this employee to explain what the issue was.[89] The applicant’s testified that he also complained to Ms. Roehl on June 4 that Mr.Castellano harassed him on May 22. Ms. Roehl denies this. I find Ms. Roehl credibleon this point. It does not seem probable to me that Ms. Roehl would be prepared toimmediately take action in response to the applicant’s allegations that Mr. Castellanomade him carry out work beyond his medical limitations and would have chosen todisregard the further allegation that Mr. Castellano made harassing comments to theapplicant on May 22. It does not seem probable that Ms. Roehl would not havereported this allegation to Mr. Zbaraschuk given that she immediately reported theapplicant’s allegation about being made to work beyond his medical restrictions and theevidence before me that suggested that Ms. Roehl had a close reporting relationshipwith Mr. Zbaraschuk and relied on his guidance in carrying out her duties.2012 HRTO 1455 (CanLII)[90] Ms. Roehl testified that she took contemporaneous notes of her June 4 meetingwith the applicant. She testified that she transcribed these notes and other notes frommeetings during 2007 in preparing the respondent’s case before the Tribunal. Thesenotes were before me. She testified that she rewrote her notes in order to compile themall in one place. She testified that she did not keep her original notes. The applicantsubmits that Ms. Roehl’s actions are suspicious, that an experienced human resourcesspecialist like Ms. Roehl would know better than to destroy contemporaneous notes andthat the Tribunal should infer that she was hiding the fact that she had recorded the factthat the applicant had made a complaint of harassment to her on June 4.28

[91] The applicant also submitted that it was significant that Ms. Roehl recorded in anentry dated July 3, 2007 that “there was no response to harassment/discrimination ashe never used these words”. Ms. Roehl initially had testified that she transcribed heroriginal contemporaneous notes. The applicant then brought to her attention that thisentry for July 3 records a reference to discrimination and harassment that clearlypredates September 21 which is the date the respondent maintains the applicant firstraised these allegations. Ms. Roehl then testified that her notes were written in amanner that responds to the allegations raised in the Application and her use of thephrase “there was no response to harassment/discrimination as he never used thesewords” is in response to the allegation of harassment and discrimination raised by theapplicant in his Application.2012 HRTO 1455 (CanLII)[92] The applicant also noted that a copy of the August 31, 2007 return to work planthat was disclosed by the respondent includes a hand written note in the margin stating“Sam, Jerry report to the above until the issue ___[unknown word] harassmentdiscrimination allegations by the co. render a decision.” The applicant submits this isalso significant as it is a document that refers to harassment and discrimination thatpredates when the respondent submits the applicant first raised the allegation ofharassment and discrimination.[93] I do not find these documents corroborate or support the applicant’s position. Iaccept Ms. Roehl’s testimony that she prepared her notes for the purposes of theTribunal process and I do not make the inference that she transcribed her notes in orderto alter the notes that she did make on June 4. I also find that the way all of her notesare written indicate that they are written as responses to the applicant’s allegations ascontained in his Application. I do not agree that the reference to harassment anddiscrimination made under a July 3 entry indicates that the applicant used these wordsin the entry she would have originally made on July 3.[94] I accept the testimony that the margin notes on the August 31 document were, infact made, in September when the August 31 document was being discussed. Themargin notes explicitly refer to the decision that the applicant would report to Sam and29

Jerry while the respondent responds to the applicant’s allegations of discrimination andharassment, a decision that was clearly made in September not August.[95] In summary, I do not find that Mr. Castellano harassed the applicant during theirmeeting on May 22 given, most importantly, that I find Mr. Castellano’s generaldescription of what occurred to be credible and the evidence the applicant states helpscorroborate his account, namely that he told a number of persons of this harassmentdoes not support his version of what happened. I make the further finding that there isno persuasive evidence that the respondent discriminated against the applicant on thebasis of his age.2012 HRTO 1455 (CanLII)[96] I would note here that the applicant’s complaint to the respondent in Septemberwas that he had been harassed and discriminated against by Mr. Castellano. Therewas some ambiguity as to what discrimination the applicant was referring to, whether hewas alleging only that Mr. Castellano’s harassing comments on May 22 werediscriminatory or whether he was making a broader complaint, that Mr. Castellano’sactions during April and May constituted discrimination in addition to the harassingcomments Mr. Castellano made on May 22. I have, for the purposes of this section ofmy Decision, considered only the issue of the alleged May 22 comments and whetherthey were discriminatory. I have already determined that there was a failure toaccommodate the applicant in April and May that constitutes discrimination. I furthernote that when the respondent investigated the applicant’s complaint of harassment anddiscrimination after September 21 it considered both the Mr. Castellano’s comments onMay 22 and the respondent’s actions in general.4) Did the respondent meet its duty to investigate the applicant’s complaint ofharassment and discrimination under the Code?[97] The Tribunal has held that a respondent has a duty to investigate complaints ofdiscrimination or harassment; that the duty to investigate is the means by which anemployer ensures that it is achieving the Code mandated responsibility of operating adiscrimination free environment (see Laskowski, para 53). A failure to take reasonable30

steps to address allegations of discrimination may result in an employer being heldliable for violating the Code (see Moffatt v. Kinark Child and Family Services, [1998]O.H.R.B.I.D. No. 19, para 234).[98] The Tribunal’s decision in Laskowska v. Marineland of Canada Inc, 2005 HRTO30 (Laskowska), sets out the following three criteria to assess the reasonableness andadequacy of a respondent’s response to an allegation of harassment:(1) Awareness of issues of discrimination/harassment, Policy, ComplaintMechanism and Training: Was there an awareness of issues ofdiscrimination and harassment in the workplace at the time of theincident? Was there a suitable anti-discrimination/harassment policy?Was there a proper complaint mechanism in place? Was adequatetraining given to management and employees;2012 HRTO 1455 (CanLII)(2) Post-Complaint: Seriousness, Promptness, Taking Care of itsEmployee, Investigation and Action: Once an internal complaint wasmade, did the employer treat it seriously? Did it deal with the matterpromptly and sensitively? Did it reasonably investigate and act; and(3) Resolution of the Complaint (including providing the Complainant witha Healthy Work Environment) and Communication: Did the employerprovide a reasonable resolution in the circumstances? If the complainantchose to return to work, could the employer provide her/him with ahealthy, discrimination-free work environment? Did it communicate itsfindings and actions to the complainant? (para. 59)The Tribunal in Laskowska goes on to state that :While the above three elements are of a general nature, their applicationmust retain some flexibility to take into account the unique facts of eachcase. The standard is one of reasonableness, not correctness orperfection. There may have been several options – all reasonable – opento the employer. The employer need not satisfy each element in everycase in order to be judged to have acted reasonably, although that wouldbe the exception rather than the norm. One must look at each elementindividually and then in the aggregate before passing judgment onwhether the employer acted reasonably. (para. 60)31

[99] I note in relation to the first element identified in Laskowska that the respondenthas a Code of Ethics that refers to the principle of carrying out business with respect forindividual rights to equality and non-discrimination. This policy addresses a broadrange of ethical issues with a brief reference to the principle of non-discrimination. Allemployees are required to acknowledge that they have received, read and understoodthe Code of Ethics and agree to comply with its requirements. It does not identify aspecific complaints process.[100] Mr. Zbaraschuk testified that employees are aware that they can makecomplaints to their supervisor or to human resources and that this information isprovided during the orientation provided to new employees. In my view the respondentwould, like most employers, have benefited from a specific anti-discrimination policywith an established complaints mechanism that more explicitly indicates the rights andresponsibilities of employees. However, I am of the view that the question of whetherthe respondent met its duty to investigate in this case turns on how the respondentresponded to the applicant once he made his complaint.2012 HRTO 1455 (CanLII)[101] I find that the respondent’s response to the applicant’s allegations of harassmentand discrimination made on September 21, 2007 was reasonable. Mr. Zbaraschukrequested the applicant’s allegations in writing which he received on September 24. Hemet with the applicant on September 24 and indicated that the applicant did not have toreport to Mr. Castellano pending the outcome of Mr. Zbaraschuk’s investigation of theapplicant’s allegations. Mr. Zbaraschuk interviewed all the persons that the applicantidentified may be aware of his allegations by, it appears, October 1. These effortsindicate, in my view, that the respondent took the applicant’s allegations seriously andacted sensitively and promptly.[102] The applicant raised a concern that the investigation moved slowly betweenSeptember and December but I am satisfied that the delay in the respondent preparingand issuing its investigation report was reasonable given Mr. Zbaraschuk, a seniormanager for the respondent, had other duties during this period which required him tobe out of Ontario. I further note that the applicant was absent from the workplace during32

this period lessening, in my view, the need to resolve his allegations in a more timelyfashion.[103] The applicant raised a concern as to whether Mr. Zbaraschuk’s investigation wasbroad enough that Mr. Zbaraschuk should have questioned other employees. I acceptthe respondent’s position that it was of the view that it was appropriate to interviewthose persons the applicant identified were aware of his allegations.[104] A key issue, of course, is the applicant’s contention that the respondent knew inJune of the applicant’s allegations of discrimination and harassment and failed to takeany action until these allegations were again raised by the applicant on September 21.Such a delay could give rise to whether the applicant’s complaint was treated seriously.2012 HRTO 1455 (CanLII)[105] However, I am satisfied that the first time the applicant explicitly raised anallegation of harassment and discrimination was in September not in June. I do notaccept, as I have already indicated, that the applicant told Ms. Roehl on June 4 that hehad been harassed and discriminated against by Mr. Castellano.[106] In terms of the third element identified in Laskowska Mr. Zbaraschuk did providea written account of his investigation to the applicant. It is clear that the respondentinterpreted the applicant’s allegations of harassment and discrimination to extendbeyond the May 22 meeting involving the applicant and Mr. Castellano, that they wereinvestigating the relationship between the applicant, Mr. Castellano and the respondentduring the period April to September 2007. The respondent did not find evidence thatthe respondent and Mr. Castellano had discriminated against the applicant or harassedhim and indicated that the applicant had to return to his original position on theafternoon shift. This, in my view, was reasonable given the outcome of therespondent’s investigation.[107] Importantly, I am of the further view that the respondent did take measures tosee that the applicant would return to a healthy, discrimination free environment. I notethat Mr. Zbaraschuk testified that he told Mr. Castellano that he was expected to adhere33

to the August 31, 2007 return to work plan for the applicant’s return to the afternoonshift. Mr. Zbaraschuk’s letter to the applicant that accompanied the respondent’sproposed August 31 return to work plan also states:I can assure you that I have met with the Supervisor in charge [Mr.Castellano] and reviewed this plan, as well as the employer’sresponsibility with respect to the RTW plan. He clearly understands hisresponsibilities and will co-operate to administer the RTW plan asdesigned.Mr. Zbaraschuk goes on in his letter to the applicant to say:2012 HRTO 1455 (CanLII)We must insist on your co-operation in the Return to Work Program. Ifyou are experiencing difficulties with assigned tasks discuss with yoursupervisor immediately. If you are asked to assist in or perform a taskwhich you have been medically restricted from politely decline and reportto your supervisor.These are reasonable measures, in my view, to support the applicant’s return to ahealthy work environment.[108] I do note here that I have made a finding that the respondent failed in its duty toaccommodate the applicant in April and May. However, this finding does not mean thatwhen the respondent arrived at a different finding, namely that the applicant had notbeen subject to any discrimination by the respondent that the respondent failed in itsduty to investigate. As stated in Laskowska the standard a respondent has to meet isreasonableness not correctness or perfection. I find that the respondent’s timely andconsidered efforts in investigating the applicant’s allegations of discrimination andharassment were reasonable and it has met its duty to investigate.5) Did the respondent meet its duty to accommodate up to the point of unduehardship when it required the applicant to return to his position on the afternoonshift?34

[109] The respondent submits that it is reasonable that the respondent return to hishome position, that the identified job duties on this shift were within his physicalrestrictions, that they have a policy of returning employees to their home position, thatthere was not an ongoing position on the day shift. The applicant argues that there wasno undue hardship for the respondent to place him on the day shift, that it would not bereasonable to expect him to report to a supervisor who, in the past, had subjected himto harassment and forced him to carry out duties beyond his physical restrictions.[110] I find the respondent’s offer of accommodation on the afternoon shift meets therespondent’s duty to accommodate the applicant up to the point of undue hardship. Inconsidering the issue of how a respondent must meet its duty to accommodate up to thepoint of undue hardship the Supreme Court of Canada in Central Okanagan SchoolDistrict No. 23 v. Renaud, [1992] 2 S.C.R. 970 (“Renaud”) writes:2012 HRTO 1455 (CanLII)While the complainant may be in a position to make suggestions, theemployer is in the best position to determine how the complainant can beaccommodated without undue interference in the operation of theemployer’s business. When an employer has initiated a proposal that isreasonable and would, if implemented, fulfil the duty to accommodate, thecomplainant has a duty to facilitate the implementation of the proposal. Iffailure to take reasonable steps on the part of the complainant causes theproposal to founder, the complaint will be dismissed. The other aspect ofthis duty is the obligation to accept reasonable accommodation. This isthe aspect referred to by McIntyre J. in O’Malley. The complainant cannotexpect a perfect solution. If a proposal that would be reasonable in all thecircumstances is turned down, the employer’s duty is discharged.[111] It is clear the applicant wanted to return to a position on the day shift. He furtherindicated in September and October 2007 that he would never return to work under Mr.Castellano’s supervision. I am of the view that this stated precondition for returning towork is not reasonable. I find that the modified position proposed by the respondentwould meet the applicant’s restrictions and therefore his accommodation needs. Indeedthe applicant was not disputing that this would be the case. I agree with the Tribunal inBoyce v. Toronto Community Housing Corporation, 2012 HRTO 853 that absentmedical advice to the contrary, it is implicit in the duty to cooperate that the employee35

will at least attempt a modified return to work before ruling it out as an inappropriateaccommodation.[112] The fact that the applicant has a further concern that if he was to return to theafternoon shift his supervisor might not respect the requirements of his modifiedposition, even if based on past experience, does not, in my view mean that it isreasonable for the applicant to categorically refuse the respondent’s offer. Again Iwould note Mr. Zbaraschuk’s letter to the applicant dated August 31, 2007 whichaccompanied the respondent’s proposed return to work plan that indicates that Mr.Zbaraschuk had spoken to Mr. Castellano and that Mr. Castellano understood hisresponsibilities and would co-operate with administering the return to work plan asdesigned. The letter also clearly states that the applicant is to decline any task beyondhis medical restrictions and report it to his supervisor.2012 HRTO 1455 (CanLII)[113] Under these circumstances the applicant has, to use the language of Renaud, aduty to facilitate the implementation of the respondent’s proposal. If the applicant hasconcerns that the position is not being implemented as offered he, in my view, needs toaddress this after having returned to the position.[114] The applicant submits that to return him to work on the afternoon shift would beto return him to a poisoned work environment. It is well-settled law that the prohibitionagainst discrimination in employment under the Code affords employees the right to befree from a poisoned work environment. As noted in Smith v. Menzies Chrysler, 2009HRTO 1936, human rights jurisprudence has long accepted that the “emotional andpsychological circumstances in the workplace” which underlie the work atmosphereconstitute part of the terms and conditions of employment.[115] It is not clear to me that the situation in which the applicant was working in Apriland May 2007 rises to the level of a poisoned work environment even though I havefound that the respondent failed during this period to ensure that the applicant did notcarry out tasks beyond his medical limitations. I further note that I have found that Mr.Castellano did not harass the applicant on May 22 and so I do not accept an argument36

that the events of May 22 may have contributed to or created a poisoned workenvironment for the applicant.[116] However, regardless of work conditions in April and May I do not accept that theapplicant can reject a return to a modified position on the afternoon shift on the basisthat he will be exposed to a poisoned work environment. Again, I find significant theapplicant’s August 31 return to work plan that clearly sets out the expectation that Mr.Castellano will abide by the requirements of the plan and that the applicant is to declineto do any tasks beyond his medical restrictions. In my view the applicant cannot, underthese circumstances, unilaterally refuse to return to a position that meets his medicalrestrictions. The reasonable step is for him to return to work and to raise issues relatedto his accommodation if they do, indeed, occur.2012 HRTO 1455 (CanLII)[117] In conclusion, it is my view that the respondent discharged its duty toaccommodate the applicant when it offered a position on the afternoon shift.Accordingly, the fact that the applicant’s employment was ultimately terminated forfailing to accept this proposed accommodation cannot be considered to bediscrimination based on disability.6) Was the decision to terminate the applicant’s employment done in reprisal forthe applicant exerting his rights under the Code?[118] I do not find that the decision to terminate the applicant’s employment was inreprisal for exerting his rights under the Code.[119] The applicant filed his complaint with the Ontario Human Rights Commission onNovember 19, 2007. According to the applicant the respondent would have received acopy of this complaint prior to December 10 when the respondent formally terminatedhis employment. The respondent denies having received the applicant’s complaint priorto December 10.[120] I find that the respondent communicated to the applicant its position that he hadto return to the afternoon shift long before the applicant filed his complaint with the37

Commission in November 2007. The respondent made it evident to the applicant inAugust 2007 that it expected him to return to his home position on the afternoon shiftand reiterated this expectation in meetings with the applicant on September 24, andOctober 1, 2007. The respondent also indicated to the applicant during this time that itwas not prepared to assign him to a position on the day shift. I find that theseconsistently held positions explain why on December 3, 2007 the respondentcommunicated that if the applicant did not report to the afternoon shift his employmentwould be terminated. I do not find, given these circumstances, that the termination ofthe applicant’s employment can be considered reprisal for his complaint to theCommission because the evidence does not support an inference that there was anintention to reprise against the applicant.2012 HRTO 1455 (CanLII)[121] I have further considered whether the fact that the applicant raised an earliercomplaint of harassment and discrimination with the respondent contributed to therespondent’s decision to terminate the applicant’s employment. In other words did theapplicant’s efforts to pursue his rights prior to formally filing a complaint with theCommission contribute, in some measure, to the decision to terminate his employment.[122] I do not find this to be the case. In my view there is a clear and nondiscriminatoryreason for the respondent’s decision to terminate the applicant’semployment. It presented what it determined was a reasonable and appropriate returnto work plan that the applicant refused to accept. It determined that the applicant hadnot been subject to harassment or discrimination. In my view the respondent’s decisionto terminate the applicant’s employment is based solely on the applicant’s categoricalrejection of the respondent’s return to work proposal.NEXT STEPS[123] I have found that respondent violated the Code when it failed in its duty toaccommodate the applicant during the period April 23 to May 31, 2007. As a result ofmy finding, I will need to hear evidence from the parties as to the appropriate remedy.38

Accordingly, I am requiring the parties to file materials regarding remedy with theTribunal in accordance with the following schedule:Within 21 days of the date of this Decision, the applicant shall serve on therespondent and file with the Tribunal a statement of the specific remediesthat are being sought and the evidence to support those remedies;Within 14 days of receiving the applicant’s submissions, the respondentshall serve on the applicant and file with the Tribunal its response to theapplicant’s material on remedy; andWithin 7 days of receiving the respondent’s submissions, the applicantshall file any materials in reply.2012 HRTO 1455 (CanLII)[124] The parties will be contacted regarding an appropriate date for their furtherattendance on the remedial portion of this hearing.Dated at Toronto this 25 th day of July, 2012.“Signed by”_____________________________________Eric WhistVice-chair39