FAQ's Cases - Stewart McKelvey

- 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