FAQ's Cases - Stewart McKelvey

- 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.