View cases - Stewart McKelvey

Federal CourtCour fédéraleOttawa, Ontario, March 1, 2011PRESENT:The Honourable Mr. Justice O'KeefeDate: 20110301Docket: IMM-3091-10Citation: 2011 FC 2412011 FC 241 (CanLII)BETWEEN:VISHAL ARORAandApplicantTHE MINISTER OF CITIZENSHIP ANDIMMIGRATIONRespondentREASONS FOR JUDGMENT AND JUDGMENT[1] This is an application pursuant to subsection 72(1) of the Immigration and RefugeeProtection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision of an immigration officerof the Immigration Section of the High Commission of Canada in Delhi, India (the officer), datedMay 10, 2010, wherein the officer refused the applicant’s application for a Canadian work permit.

Page: 2[2] The applicant requests that the decision of the officer be set aside and the applicationremitted for redetermination by a different officer.Background[3] Vishal Arora (the applicant) was born on September 6, 1987 in Meham, India.[4] The applicant completed high school in 2005 and alleges that he began working for Ghandi2011 FC 241 (CanLII)Infotech as a telemarketer in June 2005. At Ghandi Infotech, he states that he supervised two teamsof telemarketers. The applicant further alleges that he joined Assent India in May 2006 as a businessdevelopment executive.[5] The applicant joined One Touch Solutions India (OTS India) as a business developmentmanager in September 2007. He states that his main duties are to contact companies in the UnitedKingdom and Australia and offer them OTS telemarketing services. The applicant states that as thebusiness grew, he was in charge of approximately 25 people. Currently, the staff he supervises isapproximately 58 people including account managers, team leaders and supervisors.[6] The applicant was offered a position to work in Canada on a temporary basis with OTSCanada.

Page: 3[7] The applicant applied for a Canadian work permit and temporary resident visa as an intracompanytransferee under subsection 205(a) of the Immigration and Refugee ProtectionRegulations, SOR/2002-227 (the Regulations).[8] The normal application process requires foreign nationals seeking a temporary resident visaand work permit to apply for a labour market opinion (LMO) assessing the economic impact ofhiring a foreign national for the position sought. Section 205 of the Regulations provides anexemption from the LMO requirement for intra-company transferees.2011 FC 241 (CanLII)Officer’s Decision[9] Through a combination of a refusal letter and the Computer Assisted ImmigrationProcessing System (CAIPS) notes, the officer found that the applicant had not demonstrated that hemet the requirements of an intra-company transferee such that he should be exempted from applyingfor an LMO and receive a work permit and temporary resident visa.[10] The officer found discrepancies between a letter from the applicant’s employer and theapplicant’s submitted forms with respect to his annual salary.[11] The officer was not satisfied that the applicant works as a senior executive or holds amanagerial level position due to his age (23 years old), his level of education (grade 12), his limitedexperience with the company (less than three years), his modest income and the lack of evidencewith respect to his prior work experience.

Page: 4Issues[12] The issues are as follows:1. What is the appropriate standard of review?2. Did the officer ignore letters of the applicant’s past work experience?3. Did the officer ignore evidence or base her decision on extraneous criteria?Applicant’s Written Submissions2011 FC 241 (CanLII)[13] The applicant submits that the officer erred by importing subjective and extraneous criteriainto her assessment. The officer improperly considered the applicant’s age, lack of post-secondaryeducation, limited number of years with the company and level of income to determine whether theapplicant is a senior manager. These factors are not mentioned in the Citizenship and ImmigrationCanada Foreign Worker Manual (FW1 Manual) in outlining the positions of senior executive ormanager. Rather, the FW1 Manual specifically states that only one year of management experiencein the past three years is necessary.[14] Further, the position of business development manager under the NOC 0621 only requiresthe completion of secondary school. It was a reviewable error to require a higher education than thatset down in the NOC.[15] The applicant submits that the officer’s reasons are inadequate as she did not indicate onwhat basis she concluded the applicant’s salary to be modest.

Page: 5[16] The applicant also submits that the officer failed to consider the details of the applicant’scurrent duties with OTS India when making her assessment. These duties demonstrated theapplicant’s managerial role.[17] Finally, the officer failed to take into consideration the evidence of the applicant’s previousemployment.Respondent’s Written Submissions2011 FC 241 (CanLII)[18] The respondent submits that the factors considered by the officer are not irrelevant orsubjective. Rather, the officer must make a determination as to whether transferees are qualified forthe job positions for which they apply and the officer is not limited to the general considerationsincluded in the policy manual. The officer was required to assess all information presented to her asstipulated in the processing manual.[19] It was reasonable for the officer to consider the applicant’s age and education as both areunusually low for a position as a senior executive or manger.[20] It was also reasonable for the officer to find that the applicant is a relatively junior employeeas the applicant has limited experience with OTS India and there were no other letters ordocumentary evidence on file from previous employers, despite the submissions made by theapplicant that there were.

Page: 6[21] The officer based her decision in part on the discrepancies between the applicant’s bankstatements and the statements from the applicant’s employer concerning his salary. It wasreasonable for the officer to compare the applicant’s current salary of approximately $8,000 to thatwhich he would receive in Canada, $65,000 and determine that he currently makes a modest salary.[22] The respondent submits that the officer fully considered the letters from OTS India outliningthe applicant’s current duties in India and prospective duties in Canada. However, the officerconcluded that based on the entirety of the evidence, the applicant had not shown he worked as a2011 FC 241 (CanLII)senior executive or managerial level position.Analysis and Decision[23] Issue 1What is the appropriate standard of review?A refusal of a temporary work permit is an administrative decision made within the officer’slegislative authority and is ostensibly a determination of fact (see Samuel v. Canada (Minister ofCitizenship and Immigration), 2010 FC 223 at paragraph 26). In accordance with the direction ofthe Supreme Court of Canada, administrative fact finding is afforded a high degree of deference andreasonableness is the appropriate standard of review for the immigration officer’s factualdetermination (see Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12,[2009] 1 S.C.R. 339 at paragraph 46).

Page: 7[24] Issue 2Did the officer ignore letters of the applicant’s past work experience?The applicant submits that his application included documents from his previous employersGhandi Infotech, Delhi Call Centers and Assent India.[25] The officer did not mention these letters in the CAIPS notes, the respondent asserts that suchletters were not included in the application for the Canadian Work Permit and the letters are notincluded in the certified tribunal record.2011 FC 241 (CanLII)[26] As such, I cannot find that the letters were before the officer in determining the applicationor that she ignored such letters.[27] Issue 3Did the officer ignore evidence or base her decision on extraneous criteria?The officer was required to determine whether the applicant was a senior executive ormanager such that he qualified for the subsection 205(a) exemption in the Regulations.[28] In order to do this, the officer needed to assess the qualities listed in section 5.31 of the FW1Manual. This section details what executive capacity and managerial capacity entail.[29] The officer did not refer to these qualities, nor did she refer to the letter from the applicant’semployer indicating his current job duties and proposed job duties at OTS Canada.

Page: 8[30] Rather, the officer was not satisfied that the applicant works as a senior executive ormanager because of his age, education level, limited experience with the company, lack of evidenceof past work experience and modest salary.[31] While these factors may play a part in an officer’s assessment, they cannot be substituted foran assessment of the qualities of a manger as outlined in the FW1 Manual.[32] In addition, several factors noted by the officer were irrelevant to the assessment. For2011 FC 241 (CanLII)example, the officer was concerned that the applicant could not be a senior executive at the age of23 years. However, age is not a factor listed in the FW1 Manual and not allowing the exemptionunder subsection 205(a) of the Regulations based on the applicant’s age is inappropriate.[33] In addition, the officer noted with concern that the applicant had limited experience with thecompany – only three years – and therefore he must be a relatively junior employee. The problemwith the officer’s finding is that the FW1 Manual explicitly states that the applicant must show onlyone year of managerial experience at the company for which he is applying for a work permit.[34] Finally, neither the FW1 Manual nor the Regulations require a certain salary level before anapplicant can be considered a senior executive or manager. As such, it was an error for the officer todraw a negative inference from the finding that the applicant made a modest salary.[35] The officer’s failure to consider whether the applicant’s position met the qualities of a seniorexecutive or manager and her use of inappropriate criteria in assessing the applicant’s application is

Page: 9not a decision making process demonstrating justification, transparency and intelligibility asrequired by the reasonableness standard of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.R.190 at paragraph 47.[36] As such, I would allow the judicial review.[37] The decision of the officer is therefore set aside and the matter is referred to a differentofficer for redetermination.2011 FC 241 (CanLII)[38] Neither party wished to submit a proposed serious question of general importance for myconsideration for certification.

Page: 10JUDGMENT[39] IT IS ORDERED that the application for judicial review is allowed and the matter isreferred to a different officer for redetermination.“John A. O’Keefe”Judge2011 FC 241 (CanLII)

Page: 11ANNEXRelevant Statutory ProvisionsImmigration and Refugee Protection Act, 2001, c. 2772.(1) Judicial review by the Federal Courtwith respect to any matter — a decision,determination or order made, a measure takenor a question raised — under this Act iscommenced by making an application for leaveto the Court.Immigration and Refugee Protection Regulations, SOR/2002-22772.(1) Le contrôle judiciaire par la Courfédérale de toute mesure — décision,ordonnance, question ou affaire — prise dans lecadre de la présente loi est subordonné au dépôtd’une demande d’autorisation.2011 FC 241 (CanLII)205. A work permit may be issued undersection 200 to a foreign national who intends toperform work that(a) would create or maintain significant social,cultural or economic benefits or opportunitiesfor Canadian citizens or permanent residents;(b) would create or maintain reciprocalemployment of Canadian citizens or permanentresidents of Canada in other countries;(c) is designated by the Minister as being workthat can be performed by a foreign national onthe basis of the following criteria, namely,(i) the work is related to a research, educationalor training program, or(ii) limited access to the Canadian labourmarket is necessary for reasons of public policyrelating to the competitiveness of Canada'sacademic institutions or economy; or(d) is of a religious or charitable nature.205. Un permis de travail peut être délivré àl’étranger en vertu de l’article 200 si le travailpour lequel le permis est demandé satisfait àl’une ou l’autre des conditions suivantes :a) il permet de créer ou de conserver desdébouchés ou des avantages sociaux, culturelsou économiques pour les citoyens canadiens oules résidents permanents;b) il permet de créer ou de conserver l’emploiréciproque de citoyens canadiens ou derésidents permanents du Canada dans d’autrespays;c) il est désigné par le ministre comme travailpouvant être exercé par des étrangers, sur labase des critères suivants :(i) le travail est lié à un programme derecherche, d’enseignement ou de formation,(ii) un accès limité au marché du travail auCanada est justifiable pour des raisons d’intérêtpublic en rapport avec la compétitivité desétablissements universitaires ou de l’économiedu Canada;d) il est d’ordre religieux ou charitable.

Page: 12Citizenship and Immigration Canada, FW 1, Foreign Worker Manual5.31. Canadian Interests: Significant benefit—intra-company transferees R205(a), C12A) GeneralThe intra-company category was created topermit international companies to temporarilytransfer qualified employees to Canada for thepurpose of improving managementeffectiveness, expanding Canadian exports, andenhancing the competitiveness of Canadianentities in overseas markets.The entry of intra-company transferees isguided by the IRPA regulations and the generalprovisions of this section, and is supplementedby provisions contained in international tradeagreements for citizens of signatory countries.Harmonization of IRPA and NAFTA intracompanytransferee provisions means that thereare now no differences in terms of entryrequirements and work permit durations.• Qualified intra-company transferees requirework permits and are LMO exempt underR205(a), C12, as they provide significanteconomic benefit to Canada through thetransfer of their expertise to Canadianbusinesses. This applies to foreign nationalsfrom any country.• Regulation 204(a) provides LMO exemptioncode T24 for qualified intra-companytransferees who are citizens of a country thathas signed an international agreement withCanada, namely NAFTA (and similar FTAs)and the GATS, and supplements the IRPA5.31. Intérêts canadiens : Avantage important –Personnes mutées à l’intérieur d’une sociétéR205a), C12A) GénéralitésLa catégorie des personnes mutées à l’intérieurd’une société a été créée pour permettre auxentreprises internationales de mutertemporairement des employés qualifiés auCanada afin d’améliorer leur gestion, ’accroîtreleurs exportations canadiennes et de renforcerla concurrence des entreprises canadiennesdans les marchés étrangers.L’entrée au Canada de personnes mutées àl'intérieur d'une société est basée sur leRèglement de la LIPR et les dispositionsgénérales de la présente section, lesquelles sontcomplétées par les dispositions des accordscommerciaux internationaux pour les citoyensdes pays signataires. L’harmonisation desdispositions de la LIPR et de l’ALENA sur lamutation des personnes à l’intérieur d’unesociété comprend les mêmes exigencesconcernant l’entrée au Canada et ladurée des permis de travail.• Les personnes mutées à l’intérieur d’unesociété qui sont admissibles doivent obtenir unpermis de travail et sont dispensées de l’AMTen vertu du R205a), code C12, parce qu’ellesapportent des avantages significatifs au Canadasur le plan économique, grâce au transfert deleur expertise aux entreprises canadiennes. Celacomprend les ressortissants de tous lespays.• Le R204a) prévoit une dispense d’AMT,correspondant au code de dispense T24, pourles personnes mutées à l’intérieur d’une sociétéqui sont citoyennes d’un pays qui a conclu unaccord international avec le Canada, à savoirl’ALENA (ainsi que d’autres ALE similaires)2011 FC 241 (CanLII)

Page: 13general provisions.General requirementsIntra-company transferees may apply for workpermits under the general provision if they:• are seeking entry to work in a parent,subsidiary, branch, or affiliate of a multinationalcompany;• will be undertaking employment at alegitimate and continuing establishment of thatcompany (where 18-24 months can be used asa reasonable minimum guideline);• are taking a position in a Executive, SeniorManagerial, or Specialized Knowledgecapacity;• have been employed (via payroll or bycontract) by the company outside Canada in asimilar full-time position (not accumulatedpart-time) for one year in the three-year periodimmediately preceding the date of application.Extensions may be granted up to the 5 and 7year maximums referred to in the tables at theend of this section (5.31) and in the table insection 11.2.. . .D) Qualifying job positionsExecutives and senior managersAs in NAFTA, this group includes persons inthe senior executive or managerial categories,in possession of a letter from a companyet l’Accord général sur le commerce desservices (GATS) et elle complète lesdispositions générales de la LIPR.Exigences généralesLes personnes mutées à l'intérieur d'une sociétépeuvent présenter une demande de permis detravail en vertu des dispositions générales sielles :• sollicitent l'admission au Canada pourtravailler dans une société mère, une filiale, unesuccursale ou une société affiliée à uneentreprise multinationale;• occuperont un emploi dans une installationlégitime et constante de cette société (pourlaquelle une affectation de 18 mois à 24 moispeut servir de minimum raisonnable);• veulent occuper un emploi en qualité de cadrede direction, de gestionnaire principal ou detravailleur qui possède des connaissancesspécialisées;• ont occupé un poste semblable (à titrepermanent ou contractuel), dans la société àl’étranger à temps plein (et non le cumuld’heures à temps partiel), pendant un an aucours des trois années précédantimmédiatement la date de la demande; desprorogations peuvent être accordées jusqu’àcinq et sept ans au maximum, commel’indiquent les tableaux à la fin de cette section(5.31) et le tableau de la section 11.2;. . .D) Postes admissiblesCadres de direction et gestionnaires principauxComme dans l’ALENA, ce groupe comprendles personnes qui font partie des catégoriesd’emplois de cadres de direction ou de2011 FC 241 (CanLII)

Page: 14conducting business in Canada, identifying theholder as an employee of a branch, subsidiary,affiliate or parent of the company which islocated outside Canada. The holder must betransferring to a Senior Executive orManagerial level position at a permanent andcontinuing establishment of that company inCanada for a temporary period.Executive capacity means that the employeeprimarily:• directs the management of the organization ora major component or function of theorganization;• establishes the goals and policies of theorganization, component, or function;• exercises wide latitude in discretionarydecision-making; and• receives only general supervision or directionfrom higher level executives, the board ofdirectors, or stockholders of the organization.Managerial capacity means that the employeeprimarily:• manages the organization, a department,subdivision, function, or component of theorganization;• supervises and controls the work of:o other managers or supervisors;o professional employees, oro manages an essential function within theorganization, or a department or subdivisiongestionnaires, qui sont munies d'une lettre d'unesociété qui exerce des activités au Canada, danslaquelle le titulaire est identifié commeemployé d’une succursale, d’une filiale oud’une société affiliée, ou de la société mère del’entreprise établie à l'extérieur du Canada. Letitulaire doit en outre être muté à un poste decadre de direction ou de gestionnairepermanent et continu de cette société auCanada pour une période temporaire.Par poste de cadre de direction, on entend uneaffectation où l'employé exerce principalementles fonctions suivantes :• dirige l'organisation elle-même ou unecomposante ou fonction importante de celle-ci;• fixe les objectifs et établit les politiques del'organisation ou d’une composante ou d’unefonction de celle-ci;• exerce un grand pouvoir discrétionnaire dansla prise de décisions;• ne fait l'objet que d’une supervision ou d’uneorientation générale de la part de cadressupérieurs, du conseil d'administration oud'actionnaires de l'entreprise.Par poste de gestionnaire, on entend un posteoù l'employé :• gère l'organisation ou un service, unesubdivision, une fonction ou une composantede celle-ci;• supervise et contrôle le travail d'autresemployés (superviseurs, professionnels ougestionnaires) ou gère une fonction essentielle,un service ou une subdivision del'organisation;2011 FC 241 (CanLII)

Page: 15of the organization.• has the authority to hire and fire, orrecommend these and other personnel actions,such as promotion and leave authorization; ifno other employee is directly supervised,functions at a senior level within theorganization hierarchy or with respect to thefunction managed; and,• exercises discretion over the day-to-dayoperations of the activity or function for whichthe employee has the authority.In general, executives and managers plan,organize, direct, or control the activities of abusiness, or a division of a business (e.g. VicePresident of Marketing), either independentlyor through middle managers. They arefrequently responsible for the implementationof the policies of a business.More senior persons, either alone or inconjunction with a board of directors, mayformulate policies which establish the directionto be taken by the business.• a le pouvoir d'embaucher et de licencier ou derecommander ces mesures et d'autres enmatière de ressources humaines (comme lapromotion et l'autorisation de congés); lorsqu'ilne supervise directement aucun autre employé,il exerce des fonctions de niveau supérieur dansla hiérarchie de l'organisation ou par rapport àla fonction qu'il gère;• exerce un pouvoir discrétionnaire sur lesopérations courantes de l'activité ou de lafunction dont il est chargé.En général, les cadres de direction et lesgestionnaires planifient, organisent, dirigent oucontrôlent les activités d’une entreprise ou de ladivision d’une entreprise (par exemple, le viceprésidentdu marketing) de façon indépendanteou par l’entremise de cadres intermédiaires. Ilssont souvent chargés de la mise en oeuvre despolitiques d’une entreprise. De nombreusespersonnes qui ont de telles fonctions peuvent,seules ou avec un conseil d’administration,élaborer des politiques sur l’orientation del’entreprise.2011 FC 241 (CanLII)

FEDERAL COURTSOLICITORS OF RECORDDOCKET:STYLE OF CAUSE:PLACE OF HEARING:IMM-3091-10VISHAL ARORA- and -THE MINISTER OF CITIZENSHIPAND IMMIGRATIONToronto, Ontario2011 FC 241 (CanLII)DATE OF HEARING: February 8, 2011REASONS FOR JUDGMENTAND JUDGMENT OF: O’KEEFE J.DATED: March 1, 2011APPEARANCES:Chantal DeslogesMelissa MathieuFOR THE APPLICANTFOR THE RESPONDENTSOLICITORS OF RECORD:Green and SpiegelToronto, OntarioMyles J. KirvanDeputy Attorney General of CanadaToronto, OntarioFOR THE APPLICANTFOR THE RESPONDENT

CITATION: Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315DIVISIONAL COURT FILE NO.: 28/10DATE: 20110118ONTARIOSUPERIOR COURT OF JUSTICEDIVISIONAL COURTWHALEN, MOLLOY and SWINTON JJ.2011 ONSC 315 (CanLII)BETWEEN: )))AUDMAX INC. and MAXCINE TELFER ))Applicants ))– and –)))HUMAN RIGHTS TRIBUNAL OF )ONTARIO and SEEMA SAADI))Respondents ))Ted Charney and Julian Roy, for theApplicantsPrabhu Rajan, for the Respondent HumanRights Tribunal of OntarioToby Young and Jo-Ann Seamon, for theRespondent Seema Saadi))) HEARD at Toronto: October 20, 2010MOLLOY J.:REASONS FOR DECISIONA. INTRODUCTION

Page: 2[1] Seema Saadi was dismissed from her employment in June 2008, six weeks after she hadbeen hired. She filed a complaint of discrimination against her employer Audmax Inc. and itsowner/chief executive officer Maxcine Telfer. Ms. Saadi identifies herself as a Bengali-Canadian Muslim woman who is legally blind.[2] Audmax receives public funding to administer programs to assist diverse ethnic andreligious populations. Ms. Saadi was hired on a probationary basis as an intake worker forAudmax’s Immigration Settlement Assistance Program, a federally-funded project designed toassist newcomer women in finding work in Canada. Ms. Saadi was dismissed before herprobationary period had concluded.[3] Ms. Saadi alleged that during the course of her employment she was discriminatedagainst and harassed because of her race, colour, ancestry, place of origin, ethnic origin,disability, creed and sex, and that this pattern of conduct culminated in her dismissal, based onthose same discriminatory grounds.2011 ONSC 315 (CanLII)[4] These allegations were denied by the employer who maintained that there had been nodiscrimination against Ms. Saadi, that they had accommodated her religious attire requirementsthroughout her employment, and that she had been dismissed for cause, unrelated to anyprohibited ground of discrimination.[5] The complaint proceeded to a hearing at the Human Rights Tribunal of Ontario (“HRTO”or “Tribunal”) before Adjudicator Faisal Bhabsa for four days in July 2009. Ms. Saadi wasrepresented at the hearing by legal counsel from the Human Rights Legal Support Centre; theemployer was unrepresented. At the outset of the hearing, Ms. Saadi abandoned her allegationthat there had been any discrimination based on her disability.[6] On October 7, 2009, the adjudicator released written reasons finding against Ms. Saadi onmany of her allegations. 1 However, he found that the enforcement of workplace policies ondress code and rules for using the staff microwave were discriminatory against Ms. Saadi on thebasis of her ancestry, ethnic origin, creed and sex. He also found that the method of disciplinetaken against Ms. Saadi at a meeting dealing with the office dress code was discriminatory andthat the employer failed to properly accommodate her religious attire. Finally, he determinedthat given this discrimination during employment, and in the face of unproved allegationssupporting the employer’s decision to terminate the employment, it must be concluded that somedegree of discriminatory conduct contributed to the dismissal itself. He awarded Ms. Saadigeneral damages of $15,000 and an additional $21,070 for lost wages.[7] Audmax and Ms. Telfer seek judicial review of the adjudicator’s decision, citing issuesof procedural unfairness, inadequacy of reasons, and the unreasonableness of the decision itself.1 Saadi v. Audmax Inc., 2009 HRTO 1627.

Page: 3[8] There are a number of deficiencies in the reasons and in the process employed by theadjudicator. In my opinion, when these are viewed cumulatively it is not possible to say that thiswas a fair hearing, nor that the findings of discrimination were reasonable. The specific issues ofconcern include the following:(a)(b)(c)(d)(e)(f)(g)(h)(i)the manner in which the adjudicator dealt with the inability of a key witness forthe employer to attend the hearing was a denial of procedural fairness;the findings with respect to the microwave policy are flawed by legal errors andlack factual findings to support the legal conclusions reached;the reasons with respect to the dress code policy are inadequate to explain how thepolicy was discriminatory against Ms. Saadi, either with respect to its content orhow it was applied, and fail to address applicable legal issues;the adjudicator unreasonably refused to permit Ms. Telfer to present aphotographic image to explain her objection to Ms. Saadi’s clothing, whichinterfered with the employer’s ability to present its case;the findings with respect to the hijab are unsupportable and flawed by legalerrors;the finding that it is discriminatory for a man to be present at a meeting to discussthe style of business dress required of female employees is unsupportable in factor law;the conclusion that the termination was discriminatory was dependent upon theother findings of discrimination and is not sustainable on its own;the conclusion that the termination was discriminatory was heavily dependentupon drawing an adverse inference with respect to the failure of Mr. Barnett totestify for the employer, which was both unreasonable and legally incorrect andwhich compounded the procedural unfairness in proceeding with the hearing inhis absence; andthere is an overall failure to refer to evidence to support critical findings of fact,including findings of credibility that are either conclusory or missing altogether,and the reasons are inadequate to support the conclusions reached or to permitmeaningful judicial review.2011 ONSC 315 (CanLII)[9] I will deal first with a motion by the applicants to admit fresh evidence on this judicialreview application. I will then deal with the standard of review for decisions of the HRTO.Finally, I will analyze the decision in respect of each of the areas of concern I have mentionedabove and set out the basis for my conclusions.

Page: 4B. MOTION TO ADMIT FRESH EVIDENCE[10] Counsel for the applicants/employer sought leave to admit fresh evidence on thisapplication on two issues: (1) how the adjudicator dealt with the inability of the employer’switness to attend the hearing and the employer’s request to file his evidence in writing; and (2)how the adjudicator dealt with the employer’s attempt to submit into evidence a photograph ofclothing alleged to be similar to what the complainant had been wearing on the crucial day whenshe had been spoken to about the dress code. Leave to admit this evidence was granted.[11] The employer’s new evidence included two exhibits, 2 which were present before theadjudicator, but which were not filed as exhibits at the hearing. The purpose of this evidence onthe judicial review application was not to expand upon the evidence heard at the hearing, nor tochallenge the basis for any findings of fact made by the adjudicator. Rather, the evidence eitherrelated to issues of natural justice or served to put the decision of the Tribunal into a meaningfulcontext. This was particularly important since there is no transcript of the proceedings and theadjudicator’s reasons on the two points at issue are sparse.2011 ONSC 315 (CanLII)[12] The first exhibit is a letter from Paul Barnett, a consultant who had worked closely withAudmax for 13 years and shared office space with it. Ms. Telfer explains in her affidavit that atthe beginning of the hearing she tendered to the Tribunal a sealed envelope containing the letterfrom Mr. Barnett, which sets out the reason for his inability to attend and the substance of hisproposed evidence. The adjudicator stated in his reasons at para. 8, “I refused to accept thepreviously undisclosed letter into evidence as it would have been prejudicial to the applicant,unreliable and of limited probative value.” Inexplicably, the adjudicator did not open the sealedenvelope, did not read the letter, and did not enter it into the record so that it could be availableto a court on judicial review. Rather, he handed it back to Ms. Telfer unopened.[13] The reasons given by Mr. Barnett for his absence are relevant to whether the adjudicatorshould have proceeded with the hearing without offering other options to Audmax and whether itwas appropriate to draw an adverse inference against Audmax because of its failure to call Mr.Barnett as a witness. The substance of Mr. Barnett’s evidence, as set out in the letter, is alsorelevant to those two issues, as well as to whether his testimony could have had an impact on theoutcome of the hearing (the complainant having taken the position before this Court that Mr.Barnett’s evidence was tangential and could not have affected the result).[14] The second exhibit is a photograph of a woman wearing a mid-thigh length top, leggingsand sandals. Ms. Telfer had attempted to introduce this photograph during her testimony as avisual aid to explain to the adjudicator the type of clothing Ms. Saadi had been wearing on May16, 2008, which had prompted the meeting with her to discuss the office dress code. In hisreasons, the adjudicator stated at para. 64 that he refused to admit the photograph because “it was2 Although the motion material refers to a third exhibit (an application form), that aspect of the motion wasabandoned.

Page: 5raised for the first time very late in the hearing, the allegation had not been disclosed prior to thehearing and questions about this matter were not put to the applicant on cross-examination.”Again, it would have been helpful if the adjudicator had included the rejected photograph in therecord so that we could better understand its nature. We permitted the photograph to be filedbefore us solely for that purpose.[15] The evidence sought to be admitted is very limited in nature. It addresses issues ofnatural justice that cannot be discerned from the record due to the complete lack of any transcriptor recording of the proceedings. It is also necessary to properly understand and evaluate theadjudicator’s rulings, and the impact of those rulings on the result. This Court thereforeconcluded that this was one of those rare and exceptional cases in which the rules for admissionof such evidence, as established by the Court of Appeal in Keeprite Workers’ Independent Unionv. Keeprite Products Ltd., 3 had been met.2011 ONSC 315 (CanLII)C. STANDARD OF REVIEW[16] Before determining the applicable standard for judicial review of decisions of the HRTO,it is first necessary to consider two significant and relatively recent developments in the law: onefrom case law and the other statutory.[17] Prior to 2008, there were three levels of scrutiny applied in judicial review ofadministrative tribunals: patent unreasonableness; reasonableness simpliciter; and correctness.Also prior to that time, the Ontario Human Rights Code provided for a full right of appeal to theDivisional Court from decisions of a Board of Inquiry under the Code and the correctnessstandard was typically applied in those cases. 4[18] In 2009, in its landmark ruling in Dunsmuir v. New Brunswick, 5 the Supreme Court ofCanada held that there would no longer be three standards of review; the patent unreasonablenessstandard was eliminated. In coming to that conclusion, the Supreme Court recognized theproblems encountered by reviewing courts in grappling with the distinction between decisionsthat were “merely unreasonable” and those that were “patently unreasonable.”[19] Case law prior to Dunsmuir had interpreted the patent unreasonableness standard asmeaning “clearly irrational” or “evidently not in accordance with reason.” A patentlyunreasonable decision was described as being “so flawed that no amount of curial deference canjustify letting it stand.” By contrast, a decision that was merely unreasonable (but not patently3 (1980), 29 O.R. (2d) 513 (C.A).4 Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.).5 [2008] 1 S.C.R. 190, 2008 SCC 9.

Page: 6unreasonable) was one in which the defect was not as immediately obvious and might only bediscovered after “significant searching or testing.” 6[20] In Dunsmuir the Supreme Court considered the usefulness of maintaining the twoseparate reasonableness standards. The Court noted at para. 41 the comments of ProfessorMullan: 7 [T]o maintain a position that it is only the “clearly irrational” that will cross thethreshold of patent unreasonableness while irrationality simpliciter will not is tomake a nonsense of the law. Attaching the adjective “clearly” to irrational issurely a tautology. Like “uniqueness”, irrationality either exists or it does not.There cannot be shades of irrationality.[21] The Supreme Court concluded that maintaining the distinction between reasonablenesssimpliciter and patent unreasonableness could not be justified, holding (at para 42) that it is“inconsistent with the rule of law to retain an irrational decision.” The Court quoted withapproval, the following words of Lebel J. in his concurring reasons in Toronto (City) v. C.U.P.E.,at para. 108:2011 ONSC 315 (CanLII)In the end, the essential question remains the same under both standards: was thedecision of the adjudicator taken in accordance with reason? Where the answer isno, for instance because the legislation in question cannot rationally support theadjudicator’s interpretation, the error will invalidate the decision, regardless ofwhether the standard applied is reasonableness simpliciter or patentunreasonableness … .[22] Essentially, Dunsmuir resulted in the two previous standards of reasonableness and patentunreasonableness being collapsed into a single reasonableness standard. Questions that hadpreviously been reviewed on a correctness standard continued post-Dunsmuir to be reviewed onthat basis. However, decisions of tribunals that had previously been accorded the highest levelof deference, the patent unreasonableness standard, are now subject to the single allencompassingreasonableness standard. The Court in Dunsmuir emphasized that the move totwo standards should not be interpreted as a license to reviewing courts to be less deferential intheir approach to the decisions of administrative tribunals. Indeed, the Court recognized at para.48 that the concept of deference as “central to judicial review in administrative law” and heldthat “[t]he move towards a single reasonableness standard does not pave the way for a moreintrusive review by courts.”6 Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at para.57; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at paras. 78-82, 110; Law Society ofNew Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at paras. 52-53.7 See D. J. Mullan, “Recent Developments in Standard of Review”, in Canadian Bar Association (Ontario), Takingthe Tribunal to Court: A Practical Guide for Administrative Law Practitioners (2000), at p. 25.

Page: 7[23] The reasonableness standard developed in Dunsmuir is concerned with “the existence ofjustification, transparency and intelligibility within the decision-making process. But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes whichare defensible in respect of the facts and law.” 8[24] All other things being equal, the application of the principles in Dunsmuir would likelyhave led to the imposition of a standard of correctness on appeals from human rights tribunals, ashad been imposed in the past. However, in 2006 there was a massive change to the legislativehuman rights regime in Ontario, a change which fundamentally altered the nature of the OntarioHuman Rights Tribunal. 9 In addition, the legislative amendments that accomplished thesechanges directly addressed the judicial review issue.[25] Under the new regime, which came into force on June 30, 2008, a decision of theTribunal is no longer subject to a right of appeal, but rather can only be challenged by judicialreview. Further, decisions of the Tribunal are protected by a privative clause and by a statutorilymandated standard of review of patent unreasonableness. Section 45.8 of the new legislationprovides:2011 ONSC 315 (CanLII)… a decision of the Tribunal is final and not subject to appeal and shall not bealtered or set aside in an application for judicial review or in any other proceedingunless the decision is patently unreasonable. 10[26] Does the statutorily imposed standard of “patently unreasonable” require a return to theprevious case law distinguishing that standard from unreasonableness simpliciter? Based on thedecision of the Supreme Court of Canada in Khosa 11 and the recent Divisional Court decision inShaw v. Phipps, 12 the short answer to that question is “No.” However, some explanation isrequired.[27] First, it must be acknowledged that it is open to a legislature to specify the standard ofreview to be applied to decisions of a tribunal, and courts will respect such legislative choices. 13However, the interpretation of standards imposed by statute will be determined within thecontext of administrative law principles. In Khosa, the Supreme Court of Canada consideredBritish Columbia legislation 14 that imposed a patent unreasonableness test for “a finding of factor law or an exercise of discretion by the tribunal in respect of a matter over which it hasexclusive jurisdiction under a privative clause.” Binnie J. held (at para 19):8 Dunsmuir, at para. 47.9 Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30.10 Human Rights Code, R.S.O. 1990, c. H.19.11 Canada (Citizenship and Immigration ) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12.12 Toronto (City) Police Service v. Phipps, 2010 ONSC 3884 (Div. Ct.).13 R. v. Owen, [2003] 1 S.C.R. 779, at para. 32.14 Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58(2)(a)

Page: 8The expression “patently unreasonable” did not spring unassisted from the mindof the legislator. It was obviously intended to be understood in the context of thecommon law jurisprudence, although a number of indicia of patentunreasonableness are given in s. 58(3). Despite Dunsmuir, “patentunreasonableness” will live on in British Columbia, but the content of theexpression, and the precise degree of deference it commands in the diversecircumstances of a large provincial administration, will necessarily continue to becalibrated according to general principles of administrative law.[28] In Shaw v. Phipps, this Court considered and applied Khosa to determine the content ofthe standard of review now to be applied to decisions of the Ontario Human Rights Tribunal inlight of the statutory patent unreasonableness standard.[29] It is important to note a key distinction between the British Columbia legislation and theOntario human rights legislation. The British Columbia statute does not merely state thestandard, but rather it stipulates various factors that would make a decision patentlyunreasonable. However, in the Ontario legislation there is no guidance provided as to what theterm “patently unreasonable” means. I agree with the observations of the Divisional Court inShaw v. Phipps at paras. 37-38 that the Ontario Legislature obviously intended that the newlycreated Human Rights Tribunal should be reviewed on the highest deferential standard of reviewand should be accorded the same high degree of deference accorded to other experienced andexpert administrative tribunals such as the Ontario Labour Relations Board, labour arbitrators,and the Workplace Safety and Insurance Appeals Tribunal.2011 ONSC 315 (CanLII)[30] However, as was noted in Shaw v. Phipps, the Supreme Court of Canada has signalled aclear shift away from making a distinction between decisions that are patently unreasonable andthose that are merely unreasonable, having concluded that there is “no meaningful way inpractice of distinguishing” the two and that it would be inconsistent with the rule of law “torequire parties to accept an irrational decision simply because, on a deferential standard, theirrationality of the decision is not clear enough.” 15[31] The Ontario Court of Appeal has rejected the suggestion that there is a spectrum orcontinuum of deference within the reasonableness standard, with varying degrees of deferencewithin that standard. 16 There is but one reasonableness standard. However, again as noted inShaw v. Phipps, context is important. In Khosa, Binnie J. stated at para. 59 that reasonableness“takes its colour from the context.” The Divisional Court in Shaw v. Phipps also referred at para.40 to an article by Professor Gerald Heckman who suggests that the range of possible, acceptableoutcomes may expand or contract depending on factors such as the nature of the question and theexpertise of the decision maker.15 Dunsmuir at paras. 41-42, cited in Shaw v. Phipps at para. 39.16 Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2008), 168 A.C.W.S. (3d) 679, 2008 ONCA436.

Page: 9[32] The underlying reasoning in Dunsmuir leads to the conclusion that labelling a standard as“reasonableness” or “patent unreasonableness” is largely a matter of semantics. The SupremeCourt stipulated that the elimination of the patent unreasonableness test does not mean thattribunals previously reviewed on that standard are now to be accorded less deference. TheLegislature has required that the Tribunal be reviewed on that highest deferential standard. Aswas found in Shaw v. Phipps at para. 41, “the highest degree of deference is to be accorded todecisions of the Tribunal on judicial review with respect to determinations of fact and theinterpretation of human rights law, where the Tribunal has a specialized expertise.” However,decisions of the Tribunal are required to be rationally supported and to fall within a range ofpossible, acceptable outcomes that are defensible in fact and law. Otherwise, they will beconsidered to be “patently unreasonable” within the meaning of the legislation.[33] With respect to issues of procedural fairness and natural justice, there is no need todetermine a standard of review. It is clear that given the nature of this proceeding, rules ofprocedural fairness applied. If fundamental rules of procedural fairness are not observed, thismay render the proceeding unfair, which is a sufficient ground, standing alone, to set aside thedecision. 172011 ONSC 315 (CanLII)D. ANALYSIS(i) The employer’s missing witness[34] According to the letter from Mr. Barnett, he was unable to attend the hearing because hewas required to travel to East Africa to deal with an emergency involving his daughter whoresides there.[35] There can be no doubt that Mr. Barnett was a key witness for Audmax. Mr. Barnett waslisted by Audmax as a witness who would be called to testify at the hearing. He shared officespace with and was a consultant to Audmax, including on matters involving personnel. It wasMr. Barnett who provided the microwave for the lunchroom and he was involved in bothcreating and implementing the office policy about its use. He was present at the May 16, 2008,meeting with Ms. Saadi about her manner of dress and at the June 3, 2008, meeting at which shewas dismissed. Mr. Barnett was also to have testified as to Ms. Saadi’s conduct, which theemployer considered to be suspicious, including secretive cell phone use in the office,unauthorized intrusions into other people’s desks, and missing files.[36] The applicant Audmax does not challenge the adjudicator’s ruling that the testimony ofMr. Barnett should not be admitted through an unsworn written synopsis. It is acknowledgedthat the case involved credibility issues, that Mr. Barnett’s evidence was important andcontentious, and that it would not be fair to the complainant to admit such evidence without17 London (City) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.), at para. 10; Razack v. Ontario(Human Rights Commission) (2007), 231 O.A.C. 58 (Div. Ct.), at para. 16.

Page: 10giving her the opportunity to cross-examine Mr. Barnett. The applicant argues, however, that theadjudicator ought to have explored other options for obtaining Mr. Barnett’s evidence.[37] Ms. Saadi argues that since Ms. Telfer did not request an adjournment in order to obtainthe evidence of Mr. Barnett, there can be no criticism of the failure of the adjudicator to considerthat possibility. I do not agree. It was apparent from Ms. Telfer’s witness list, and from herattempt to introduce Mr. Barnett’s evidence in writing, that she was relying upon his evidence inher defence. She was unrepresented by counsel at the hearing and not fully conversant with herrights. In my view, it was incumbent on the adjudicator to consider the implications for Ms.Telfer and Audmax of his refusal to accept Mr. Barnett’s evidence in written form and to provideMs. Telfer with some information about her options.[38] In Toronto Dominion Bank v. Hylton 18 the Ontario Court of Appeal ordered a newhearing based on the failure of a motion judge to properly protect the rights of an unrepresentedlitigant who had requested an adjournment. Epstein J.A. stated at para. 39:2011 ONSC 315 (CanLII)Once again, the fact that a party is self-represented is a relevant factor. That is notto say that a self-represented party is entitled to a “pass”. However, as part of thecourt’s obligation to ensure that all litigants have a fair opportunity to advancetheir positions, the court must assist self-represented parties so they can presenttheir cases to the best of their abilities. [Emphasis added.][39] The Court of Appeal referred with approval to the following “helpful list” of ways inwhich a decision maker should assist unrepresented litigants, as set out by Linhares de Sousa J.on appeal from an arbitrator in a family law dispute:[N]umerous Court decisions have reiterated the principle again and again, thatself-represented parties are entitled to receive assistance from an adjudicator topermit them to fairly present their case on the issues in question. This mayinclude directions on procedure, the nature of the evidence that can be presented,the calling of witnesses, the form of questioning, requests for adjournments andeven the raising of substantive and evidentiary issues. 19 [Emphasis added.][40] Ms. Telfer stated in her affidavit that if the adjudicator had advised her of the right toseek an adjournment, she would have requested a delay in the hearing until Mr. Barnett couldattend. The fact that a previous adjournment of the hearing date had been obtained in this casedoes not mean that Ms. Telfer must be taken to have known about the right to request anadjournment. That adjournment was arranged in advance of the hearing date and at a time whenMs. Telfer and Audmax were represented by counsel. In my view, in this situation it was18 2010 ONCA 752.19 Kainz v. Potter (2006), 33 R.F.L. (6th) 62 (Ont. S.C.), at para. 65; see also Cicciarella v. Cicciarella, [2009] O.J.No. 2906, 72 R.F.L. (6th) 319 (Div. Ct.), at paras. 35-45.

Page: 11incumbent upon the adjudicator to at least raise the possibility of an adjournment in order toaccommodate the attendance of Mr. Barnett to testify. Since no inquiries were made as to whenMr. Barnett would be available to attend, it is not clear how long an adjournment would havebeen required. However, there is nothing to indicate that an adjournment would have caused anyprejudice to the other parties. Further, other options short of an adjournment of the hearing couldhave been explored. For example, it might have been possible to proceed with other witnesses,and schedule the testimony of Mr. Barnett at a later date, or it might have been possible to obtainhis evidence through video or audio conferencing.[41] If an adjournment or some other accommodation had been requested, the adjudicatorwould have been required to consider the “evidence and strength of the evidence of the reasonfor the adjournment request, the history of the matter including deliberate delay or misuse of thecourt process, the prejudice to the party resisting the adjournment and the consequence to therequesting party of refusing the request.” 20 None of these issues were considered by theadjudicator in this case. He simply dismissed the request to admit the evidence in writing andgave no consideration to any other options that might be available to ensure the unrepresentedparties had a fair opportunity to present their defence.2011 ONSC 315 (CanLII)[42] That is not to say that an adjournment of the hearing should necessarily have beengranted in this case. However, the failure to even consider the available options was unfair to theunrepresented parties and compromised the overall fairness of the hearing. This constitutes abreach of procedural fairness that could, on its own, result in the decision being quashed. 21 Inthis case, the adjudicator compounded the problem, and the unfairness, by drawing an adverseinference from the failure of Mr. Barnett to testify on critical issues related to the reason for Ms.Saadi’s dismissal. 22[43] I do not accept the respondent’s argument that this issue caused no unfairness to theapplicants because the evidence of Mr. Barnett could not have affected the result. He was acrucial witness for the employer. He was present with Ms. Telfer at two critical meetings: oneinvolving the dress code and the other involving the dismissal. His very presence at thedisciplinary meeting regarding the dress code was found by the adjudicator to constitutediscrimination. He had direct involvement in the development and enforcement of themicrowave policy. On some issues, the adjudicator did not accept the evidence of Ms. Telferand might well have been persuaded to the contrary if there was corroborative evidence from Mr.Barnett. Finally, on the key issue of whether the employer had dismissed Ms. Saadi fordiscriminatory reasons, the adjudicator held that the employer had failed to prove its allegationsas to the non-discriminatory reasons for firing Ms. Saadi. The adjudicator based that conclusion,20 Toronto Dominion Bank v. Hylton, supra, at para. 38.21 Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 (Div.Ct.), at paras. 30-39; Igbinosun v. LawSociety of Upper Canada (2009), 96 O.R (3d) 138, 2009 ONCA 484, at paras. 34-49.22 This issue is discussed below under the heading Grounds for Termination of Employment.

Page: 12in part, on an adverse inference drawn from the failure of the employer to call Mr. Barnett as awitness. Given the circumstances in which the employer was unable to call Mr. Barnett, thepalpable unfairness of that ruling is obvious.[44] Accordingly, in all of the circumstances, I find the adjudicator breached principles ofprocedural fairness in the manner in which he handled Mr. Barnett’s inability to testify at the sethearing dates.(ii) Aspects of the complaint that were dismissed[45] A number of the allegations made by Ms. Saadi were found by the adjudicator to beunsubstantiated. For example, he found that although some questions were asked at the initialjob interview about Ms. Saadi’s place of origin, in the context of an organization providingservices to immigrant women, such questions were not out of place and had no discriminatoryimpact on Ms. Saadi. Similarly, when Ms. Saadi mentioned in the workplace that her parentswere from Bangladesh, Ms. Telfer had asked questions about her understanding of howBangladeshi women were treated. The adjudicator found that these questions had relevance tothe work of Audmax, whose clients included many immigrant women from Bangladesh, andwere not discriminatory.2011 ONSC 315 (CanLII)[46] Audmax had a policy that employees were required to speak English in the workplace,except when dealing with Francophone clients. Ms. Saadi alleged that this policy wasdiscriminatory towards her. The adjudicator accepted the evidence of Ms. Telfer that she hadinstituted the policy prior to Ms. Saadi’s hire because of a conflict that had arisen in theworkplace involving two French-speaking employees. The adjudicator noted that French is notMs. Saadi’s first language and that she does not speak French regularly or at a high level ofproficiency. He therefore concluded that the English-only policy was not a proxy for racialdiscrimination against Ms. Saadi.[47] The adjudicator also accepted Ms. Telfer’s explanation for warning her staff to be carefulwhen using the office email system for personal emails because she believed the authoritiescould monitor personal emails. He found no discriminatory basis for such advice.[48] At the time she was hired, Ms. Saadi was one of three Muslim women employed byAudmax. Not long after her hiring, the other two Muslim women resigned. Ms. Saadi believedthat thereafter she was subjected to suspicion and distrust based on her Muslim identity anddiscriminatory stereotypes. Ms. Telfer acknowledged being suspicious and distrustful of Ms.Saadi, but alleged she had good reasons for it. The adjudicator did not accept Ms. Telfer’sevidence as to the basis for her suspicions. 23 However, the adjudicator also did not find that thesurveillance and distrust of Ms. Saadi were motivated, whether consciously or unconsciously, onthe basis of Ms. Saadi’s religion or ethnic origin. He held at para. 83 that to infer such amotivation from the circumstantial evidence available would be “too speculative.”23 See below under the title Grounds for Termination of Employment for further analysis of this issue.

Page: 13(iii) The Microwave Policy[49] Audmax had a workplace environmental sensitivity policy. It included a ban on the useof scented deodorants and perfume as well as restrictions on using the microwave to reheat foodsthat had a strong odour or that could affect persons with seafood or peanut allergies. Ms. Saadialleged that she was singled out for discriminatory enforcement of the microwave policy basedon the intersection of her race, ancestry, ethnic origin and place of origin.[50] The adjudicator ruled at para. 46, “Nothing in the evidence suggests that the [employer]deliberately targeted [Ms. Saadi] for discriminatory enforcement of the microwave policy.” Hisultimate conclusion that Ms. Saadi had been discriminated against in respect of the policy must,therefore, have been based on adverse effect discrimination.[51] Although the adjudicator referred in another portion of his reasons dealing with the dresscode (at para. 60) to the Supreme Court of Canada’s landmark decision in Meiorin, 24 in thecourse of his analysis on the microwave policy he made no reference to that case or to theprinciples it established. Indeed, he made no reference to any applicable legal principles. Theonly authority he mentioned is a British Columbia Human Rights Tribunal decision dealing withthe preparation of cooked foods in one’s own home as an expression of ethnicity and ancestry. 25The adjudicator correctly pointed out that the workplace is a different environment from one’sown home, but did not deal with whether there is anything about ethnicity and ancestrygenerally, or in the particular case of Ms. Saadi, that requires the reheating of particular foods atlunchtime in the workplace.2011 ONSC 315 (CanLII)[52] The adjudicator then observed at para. 47 that the microwave policy was “a movingtarget” that was virtually impossible to comply with because there was no list of foods thatwould fall within the policy. He stated that other staff members who had previously used themicrowave had ceased using it completely because of Ms. Telfer’s vigorous enforcement of thepolicy, but that Ms. Saadi continued to use it. It is difficult to understand how the policy can besaid to have an adverse effect on Ms. Saadi if she continued to use the microwave whereas otheremployees had stopped using it altogether. It would appear from that factual conclusion that thepolicy had less impact on Ms. Saadi than on others.[53] It is also difficult to discern from the reasons how Ms. Saadi’s ancestry or ethnic originrelate at all to her difficulty with the microwave policy. The adjudicator makes no findings as towhat foods Ms. Saadi was criticized for reheating in the microwave, and there is no transcript ofthe evidence. However, in Ms. Saadi’s complaint she alleged that she was disciplined formicrowaving food that had been given to her by a co-worker who is originally from Tunisia. Ido not see how the ethnicity and ancestral rights of a Bengali-Canadian Muslim are adverselyaffected by being prevented from reheating somebody else’s Tunisian food.24 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and ServiceEmployees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3 (“Meiorin”).25 Chauhan v. Norkam Seniors Housing Cooperative Assn., 2004 BCHRT 262, at para. 126.

Page: 14[54] The reasons are so sparse on the factual underpinnings for this aspect of the decision thatit is impossible to follow the pathway by which the adjudicator came to his conclusion ofdiscrimination. The adjudicator stated at para. 48 that the policy was ambiguous and that suchambiguity “leads to arbitrariness and the conditions for discriminatory enforcement.” He thenconcluded, “[t]o the extent that the applicant was disciplined for her violations of the microwavepolicy, and that those violations constituted a factor in her termination, I find she wasdiscriminated against on the basis of her ancestry and ethnic origin.”[55] This is a bald conclusion that is unsupported by any factual findings. There is noreference to what the discipline was, what the violations were, or how they were connected inany way to Ms. Saadi’s ethnic origin or ancestry. The fact that ambiguous standards can lead todiscriminatory enforcement does not mean that this occurred here, particularly in light of thefinding made by the adjudicator that Ms. Saadi was not directly targeted for enforcement.2011 ONSC 315 (CanLII)[56] There is also no actual finding that the policy had a discriminatory impact on people of aparticular ethnic origin. Further, there is no analysis whatsoever as to whether the employer hadjustified the policy as required under Meiorin by demonstrating: (1) that the standard wasadopted for a purpose rationally connected to the performance of the job; (2) that the employerhonestly and in good faith believed the policy was necessary to the fulfillment of that legitimatework-related purpose; and (3) that the standard is reasonably necessary to the accomplishment ofthat legitimate work-related purpose. Indeed, there is no reference whatsoever to any of theseconcepts.[57] In short, the reasons do not disclose a rational basis for the conclusion that there wasdiscrimination against Ms. Saadi in respect of the microwave policy. In that sense, the reasonscannot be said to be reasonable. In Dunsmuir, the Supreme Court held that a consideration ofreasonableness includes both outcomes and the process of articulating reasons. The Courtdescribed reasonableness at para. 47 as being “concerned mostly with the existence ofjustification, transparency and intelligibility within the decision-making process.” The reasonswith respect to the microwave policy are neither transparent nor intelligible. It is not possible todetermine how the adjudicator reached the conclusion he did. The outcome may or may not bepatently unreasonable; it is not possible to say, because the articulation of the reasons isinadequate to justify the conclusion. Accordingly, the conclusion of discrimination in respect ofthe microwave policy is irrational and patently unreasonable. It cannot stand.[58] Further, the reasons are not adequate to explain the basis for the decision or to permitmeaningful appellate review, and therefore also constitute a breach of principles of proceduralfairness and natural justice. This is also a sufficient basis to set aside the conclusion with respectto the microwave policy. 2626 R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Gray v. Ontario (Disability Support Program, Director)(2002), 59 O.R. (3d) 364 (C.A.).

Page: 15(iv) The Office Dress Code[59] Audmax had a written dress code policy requiring its employees to wear “business attire”in the workplace. The employer argued that this policy was a bona fide occupationalrequirement as the company was in the business of advising newcomers with respect to findingemployment in Canada, and it was essential that staff lead by example and dress with anappropriate degree of professionalism.[60] As an observant Muslim woman, Ms. Saadi adhered to the principle of “modest dress andbehaviour” and wore a hijab to cover her hair. She argued that the employer discriminatorilysingled her out for corrective action regarding her mode of dress in a manner that constituteddiscrimination and harassment. She further alleged that the employer failed to accommodate herpersonal choice with respect to the style of hijab she wore.2011 ONSC 315 (CanLII)[61] This aspect of the complaint is based on a meeting that took place on May 16, 2008,involving Ms. Telfer, Mr. Barnett and Ms. Saadi. At that meeting, Ms. Saadi was spoken toabout various aspects of what she was wearing that day, which the employer felt did notconstitute proper business attire. In particular, the employer objected to: an ankle bracelet that“jingled;” open-toed “slippers;” clothing that was described as a “tight short skirt and leggings;”and a form of head covering described as a “cap.”[62] The adjudicator made clear findings with respect to the ankle jewellery and footwear,stating that there was no link between those and any Code protected ground. Nobody takes issuewith those findings.[63] However, the adjudicator found that the employer breached the Code in relation to theclothing and the hijab. The process by which the adjudicator reached that conclusion on thesetwo points is not clear, either in fact or in law.[64] The adjudicator stated at para. 59 that employers are “entitled to maintain and enforceappropriate dress code policies.” He then stated that such policies must not discriminate on theirface (giving as an example a “no hijab allowed” rule). He further held that policies must notdiscriminate indirectly through the application of a neutral rule that has an adverse impact on aprotected group (giving as an example a rule that no head coverings are allowed), unless theemployer can show the rule is a necessary requirement of the job and that there can be noaccommodation without undue hardship. The adjudicator then referred to the three stage test inMeiorin. There is no difficulty with the adjudicator’s statement of the law in this regard.However, he failed to apply those legal principles to the case before him.[65] In particular, although the adjudicator made a finding of discrimination, it is unclear ifthat finding is based on a conclusion that the employer discriminated directly by targeting Ms.Saadi and requiring her to dress in a manner contrary to her religious beliefs, or whether thefinding is based on the conclusion that the dress code policy caused an adverse impact that theemployer failed to properly accommodate.

Page: 16[66] In respect of the clothing, this difficulty is compounded by conflicting and vague factualfindings.[67] The adjudicator made no clear finding as to what Ms. Saadi was actually wearing on May16, 2008, the only time the employer raised the issue of her compliance with the dress code. Hestated that he rejected the employer’s assertion that Ms. Saadi wore a tight short skirt andleggings. He said he preferred Ms. Saadi’s evidence that she would not wear such an outfitbecause as an observant Muslim woman she would never wear a tight or short skirt.[68] No reasons whatsoever are provided for rejecting the evidence of Ms. Telfer, or foraccepting the evidence of Ms. Saadi. This makes appellate review of the findings illusory. TheCourt of Appeal held in Law Society of Upper Canada v. Neinstein 27 that when credibility is animportant factor, bald conclusions as to the credibility of one witness as compared to another willnot suffice. The Court held:2011 ONSC 315 (CanLII)[83] The reasons relating to C.T.’s complaints compel the conclusion that thosereasons do not address the “why” component required in reasons for judgment.The Hearing Panel’s reasons are a combination of generic generalities (e.g. “gaveher evidence in a forthright manner”), unexplained conclusory observations (e.g.“withstood cross-examination well”), material omissions (e.g. the failure toarticulate any analysis of Mr. Neinstein’s evidence) and uncertainty as to the legalprinciples applied to the credibility analysis (e.g. the corroboration finding).Taken together, these inadequacies render the reasons in respect of C.T.’sallegations so inadequate as to prevent meaningful appellate review.[84] The Hearing Panel’s reasons for accepting S.G.’s allegations offer evenless insight into its decision than do its reasons concerning C.T.’s allegations.Examined from a functional perspective, the Hearing Panel’s reasons relating toS.G.’s allegations come perilously close to constituting no reasons at all. Aftersummarizing the relevant evidence, the Hearing Panel sets out its findings of fact,all in favour of S.G., in a series of conclusory statements, none of which offer anyexplanation for the findings or an analysis of the evidence relevant to thosefindings (paras. 136-148).[69] The credibility reasons provided by the tribunal that were found to be lacking in theNeinstein case were far more detailed and specific than is the case here. Indeed, apart from thebald statement that he preferred the evidence of one witness over another, the adjudicator gaveno actual reasons for any of his credibility findings. That is particularly problematic in thissituation where resolution of the issue depended upon whose testimony was believed.27 (2010), 99 O.R. (3d) 1, 2010 ONCA 193, at paras. 60-92.

Page: 17[70] Ms. Telfer attempted to place into evidence a photograph she had found on the internet toillustrate the type of outfit she said Ms. Saadi had been wearing that day. The adjudicator heldthat this evidence was not admissible because it was raised late in the hearing and had not beenput to Ms. Saadi in cross-examination. The photograph in question is one of the exhibits weadmitted as new evidence on this application. It provides a graphic illustration of the kind ofapparel the employer says Ms. Saadi was wearing. I see no principled basis for excluding suchevidence from the hearing. It is simply a visual aid to explain a type of clothing that is not easyto describe orally. The adjudicator appeared to be having difficulty understanding Ms. Telfer’soral testimony as to the type of clothing to which she was referring. I would have thought aphotograph would have been of some assistance.[71] Although he did not say so explicitly, the adjudicator appears to have relied on the rule inBrowne v. Dunn 28 to exclude this evidence. In my view, that is an overly rigid approach to theevidence in a case of this nature, particularly in view of the fact that the employer was notrepresented by counsel and could not be expected to know about the rule. In any event, evenapplying the rule, exclusion of the evidence should be a last resort and only exercised where anyother remedy would be unduly prejudicial to the other party. In this situation, it is difficult to seehow Ms. Saadi can be said to be taken by surprise or to have been prejudiced by the introductionof the photograph. She would have the right to testify in response and to either accept or rejectthe accuracy of this picture as representative of the type of clothing she was wearing. Indeed,given the crucial role of the clothing Ms. Saadi wore on May 16, 2008, and the fact that Ms.Saadi herself relied on this particular meeting in support of her claim of discrimination, it issurprising that the actual clothing, or a photograph of it, was not introduced into evidence by Ms.Saadi. She was represented by counsel throughout and the importance of the clothing wouldhave been obvious. There is no reference in the reasons to the failure of Ms. Saadi to present thisevidence, which was within her sole control, nor is there any reference to any reason for nothaving such evidence before the Tribunal. However, quite apart from whether an adverseinference could or should have been drawn against Ms. Saadi on this issue, I consider it unfair tohave prevented Ms. Telfer to use a visual aid to explain her oral testimony on this crucial point.2011 ONSC 315 (CanLII)[72] The insufficiency of the factual findings as to what Ms. Saadi was wearing is exacerbatedby conflicting findings with respect to the dress code itself.[73] At paras. 53 and 54 in his reasons, the adjudicator refers to the dress code as being inwriting, included in orientation material, “reasonably clearly drafted,” and “well known to allstaff.” He further noted that the employer “went to great lengths to illustrate ways of complyingwith the policy.” He described the policy as requiring “business attire” and stated that the policylisted things that were appropriate, as well as things that were forbidden (such as jeans andrunning shoes).28 (1893) 6 R. 67 (H.L. (Eng.)). See also R. v. Hall, 2010 ONCA 421, at para. 18: “The rule in Browne v. Dunn is arule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, thewitness must be given an opportunity to address the contradictory evidence.”

Page: 18[74] It is unclear how such a policy would conflict with Ms. Saadi’s religious requirements todress in a modest fashion. There would not appear to be anything specific in the policy thatwould conflict with such a requirement, nor is there anything about modest clothing that wouldconflict with a business attire requirement.[75] Later in his reasons, at para. 65, the adjudicator indicated that he found Ms. Telfer’sevidence as to the dress code requirements to be “confusing at best,” stating that “[s]he testifiedthat the policy would tolerate skirts with nylons, socks or bare legs, but that leggings or tightpants would not be acceptable under skirts.” He then held that the “dress code appears to bearbitrarily applied, subject to Ms. Telfer’s opinions and preferences about how she wants herstaff to look.” That conclusion would appear to be at odds with the earlier finding that the policywas clear and well known to staff. It would also seem to be pointing to a finding of directdiscrimination as to the manner in which the policy was applied. However, immediately afterstating that the policy was arbitrarily applied, the adjudicator made his final ruling on the point,stating:2011 ONSC 315 (CanLII)This constituted adverse-effects discrimination on the ground of creed against theapplicant, whose religiously conforming attire at times conflicted with therespondents’ dress code. There is no indication that the dress code comprised abona fide occupational requirement within the meaning of the Code.[76] It is difficult to rationalize this legal conclusion with the factual findings or the case law.First of all, there does not appear to have been any determination that the dress code had anadverse impact on Ms. Saadi because of the requirements of her religion. What was the neutralrequirement of the policy that conflicted with the religious duty? There does not appear to havebeen one.[77] Secondly, the statement that Ms. Saadi’s “religiously conforming attire at timesconflicted with the dress code” is not supported by any factual findings. There was only the oneoccasion that this came up, and the objection raised by the employer was that Ms. Saadi’sclothing was inappropriate because it was too tight and too short. That is the very opposite ofmodest and religiously conforming attire. The employer’s evidence was rejected by theadjudicator, but without any description of what Ms. Saadi was actually wearing, making itimpossible to determine if there was something about that clothing that was religiously requiredand not in conformity with the policy.[78] Third, the bald conclusion that there is “no indication that the dress code comprised abona fide occupational requirement” is unsupported by any legal reasoning or factual findings.There is no consideration of the test established in Meiorin, no finding as to whether the dresscode requirement in this workplace was rationally connected to the nature of the work, nodetermination as to whether the policy was adopted by Audmax in good faith, and no analysis ofwhether the imposition of the rule was reasonably necessary in the sense that accommodationshort of undue hardship was not possible.

Page: 19[79] Finally, if the finding was actually that there was no problem with the policy itself butthat the employer used the policy as a ruse to harass Ms. Saadi because of her race or creed, thatis not apparent from the reasons and is unsupported by any factual determinations made.[80] Given the dearth of reasons on key points, the flawed legal reasoning, and the absence ofimportant factual findings, the decision on this point cannot be said to be rational or logical. Itwould appear that there was something about what Ms. Saadi was wearing on that particular daythat attracted the employer’s attention in a negative way. It may be that the employer’s dresscode was to some extent subjective and a reflection of personal taste, but that does not make itdiscriminatory. I can see no line of reasoning that could logically lead to the conclusion thatconforming to the employer’s business attire dress code would conflict with Ms. Saadi’sreligious beliefs. The reasons disclose no contradiction between dressing modestly and dressingin a professional business manner. Nor do the reasons disclose any basis for finding that theemployer’s imposition of discipline with respect to the dress code on May 16, 2008, was in anyway directed at, or connected to, Ms. Saadi’s race or religion. Accordingly, in my view, thedecision on this point is patently unreasonable.2011 ONSC 315 (CanLII)[81] Similar problems arise in the adjudicator’s analysis of the issues relating to the hijab.The adjudicator accepted that the employer supported the right of Muslim women to wear a hijabin the workplace, that Ms. Saadi (and other employees) had worn a hijab every day at work, andthat various forms of head coverings had been accepted by the employer for other employees,including a simple bandana. The issue with the hijab arose only on May 16, 2008. Theemployer described what Ms. Saadi was wearing as a “cap” and objected to it as not lookingprofessional. Ms. Saadi apparently acknowledged that what she was wearing was not thetraditional hijab, but rather what she considered to be an elegant form of the hijab, which she hadordered online from Indonesia, believing it would enhance her professional appearance.[82] In my opinion, Ms. Saadi, as the owner of the head covering in question andknowledgeable as to where one might find an image of it online, could reasonably be expected toprovide the Tribunal either with the item itself or an exact photograph of it. She did not do so,leaving both the Tribunal and this Court to speculate as to whether it could be considered to beappropriate office attire.[83] I also note that there is no express finding that once Ms. Saadi provided an explanationwith respect to the headdress in question she was prohibited from wearing it. Rather, it wouldappear that the employer merely included the “cap” as one of a number of items worn by Ms.Saadi that day that did not, in the employer’s view, constitute proper business attire. There is noindication that Ms. Saadi was thereafter prevented from wearing that form of hijab.[84] The adjudicator held at para. 69 that “[t]he Code guarantees not only a woman’s right towear a religious headdress in the workplace, but also her right to choose the form of religiousheaddress, subject only to bona fide occupational requirements.” [Emphasis in original.] He thenheld that there was “no evidence beyond Ms. Telfer’s description of the headdress as a ‘cap’ tosuggest that [Ms. Saadi’s] form of hijab was, by any fair, objective and non-discriminatory

Page: 20standard, unprofessional.” He referred to the dress code policy as “non-neutral, vague andarbitrary” and held that the “singling out of [Ms. Saadi] for corrective action on the basis of herchosen form of hijab, which was clearly worn for religious reasons, amounted to discrimination.”[85] Although the adjudicator makes passing reference to the policy having an adverse effect,it would seem that his finding of discrimination is based on a conclusion that the employerdirectly discriminated against Ms. Saadi based on her religion. It is difficult to determinewhether the headdress in question is unprofessional in appearance without seeing it. It isunreasonable to impose on the employer an obligation to prove the headdress is objectivelyunprofessional in appearance when the employer has no access to the headdress itself and theemployee does. The fact that the employer had no problem accommodating different kinds ofheaddress in the past, both with respect to Ms. Saadi and others, suggests to me that what was atissue here was a question of style and taste, not religious accommodation.2011 ONSC 315 (CanLII)[86] In my view, the adjudicator proceeded on an illogical, and legally incorrect, course ofreasoning. First, he held that what Ms. Saadi was wearing on the day in question was consistentwith her religious requirements. Second, he held that what Ms. Saadi was wearing was, at leastaccording to the employer, inconsistent with the dress code. He therefore concluded that thedress code violated Ms. Saadi’s religious rights. The logical step that the adjudicator missed wasa consideration of whether it was possible for Ms. Saadi to comply with the dress code withoutcompromising her religious requirements. There was nothing about Ms. Saadi’s religion thatrequired her to wear the particular form of hijab she was wearing on the day in question. If itwas possible for her to wear a religiously acceptable form of hijab that was fully consistent withthe dress code (as indeed she had done every day for six weeks), her religious rights were notaffected. All that was affected was her sense of style, which apparently was in conflict with thatof her employer.[87] Similarly, certain types of apparel that would not constitute a “modest” form of dressmight be permitted by the dress code (such as a sleeveless blouse under a jacket). However, Ms.Saadi was not required to wear a sleeveless blouse in order to comply with the dress code. Shecould comply with both the dress code and her religious requirements by wearing a long-sleevedgarment, provided it was suitably professional in appearance. If she chose, for example, to weara battered old sweatshirt and baggy flannelette pants, the requirements of her religion wouldlikely be met, but surely her employer could legitimately complain that this was not suitableattire for a professional office environment.[88] The adjudicator in this case made an irrational decision by concluding that discriminationhad been established any time an item of clothing was questioned and that clothing compliedwith the requirements of the complainant’s religion. He ought to have considered whether thedress code, or the employer’s enforcement or interpretation of it, conflicted with what theemployee was required to wear as part of her religion. He did not consider that issue, andreached a conclusion that is not logically supportable. Therefore his decision is patentlyunreasonable as a question of fact and a question of law.

Page: 21(v) May 16, 2008, Meeting with the Complainant—Procedural Duty to Accommodate[89] The adjudicator held that the manner in which the employer conducted the May 16, 2008,meeting to discuss Ms. Saadi’s attire was itself discriminatory. The adjudicator’s finding ofdiscrimination based on the breach of a procedural duty to accommodate rested on two foundpoints: (1) the employer adopted a “corrective” approach, rather than a “collaborative” approach,to what were “clearly accommodation issues”; and (2) the presence of Mr. Barnett at themeeting.[90] On the first point, the adjudicator provided no analysis as to what was corrective ordisciplinary about the meeting, nor did he address whether from the employer’s perspective thiswas “clearly” an accommodation issue. There is no indication as to what would constitute anacceptably “collaborative” approach, or how the employer departed from that standard. Indeed,there is no discussion at all as to the tone of the meeting, or what was said. There is simply abald conclusion that the meeting was corrective and therefore discriminatory. That is a patentlyunreasonable conclusion, both in fact and in law, and does not comply with the Tribunal’sobligation to provide adequate reasons to support its decision.2011 ONSC 315 (CanLII)[91] The adjudicator took great exception to the presence of Mr. Barnett at the meeting, whohe described as a mere office neighbour. He appears to have rejected the evidence of Ms. Telferabout Mr. Barnett’s close connection to Audmax and her reliance on him for advice, includingon personnel issues. No reasons are provided for rejecting her evidence. This error iscompounded by the fact that the employer was unfairly deprived of Mr. Barnett’s evidence onthis issue.[92] The adjudicator was particularly critical of the employer’s decision to permit a man to bepresent at a meeting to discuss Ms. Saadi’s style of dress, which he said contributed to thediscrimination by failing to consider her needs and sensitivities as an observant Muslim woman.Further, he held that while his finding of discrimination in this regard was based on theintersecting grounds of sex and creed, he would have come to the same conclusion on the groundof sex alone. He stated, “No woman in these specific circumstances, regardless of her level ofreligious observance or what faith, should be subjected to this form of disciplinary meeting.”[93] To the extent this represents a finding that the participation of a man in any meetingabout a female employee’s attire constitutes sex discrimination, I find this decision to be patentlyunreasonable. If there were particular sensitivities involving this employee or the issues thatwere discussed, they are not disclosed in the reasons. On its face, a discussion about whatconstitutes proper business attire is not one that would require the exclusion of the opposite sex.(vi) Grounds for Termination of Employment[94] On June 3, 2008, prior to the expiry of her probation period, Ms. Saadi was advised thatshe was being dismissed due to a lack of “organizational fit.” The adjudicator found that Ms.Saadi’s ethnic and/or religious background was a contributing factor in her termination. His

Page: 22reasoning was based on two findings: (1) that Ms. Saadi had been discriminated against duringher employment with respect to the enforcement of the microwave policy, the manner ofdiscipline and the style of hijab; and (2) that the employer had failed to prove its allegationssupporting its decision to terminate her employment.[95] I have already dealt with the findings of discrimination during the course of theemployment. In my view, those findings are patently unreasonable and unsupported by adequatereasons, and cannot stand.[96] Much therefore depends on whether the employer has established non-discriminatorygrounds for terminating Ms. Saadi’s employment. Ms. Telfer acknowledged that Ms. Saadi wasbeing subjected to heightened supervision and scrutiny in the workplace. She testified that thiswas because of suspicious behaviour by Ms. Saadi, including: missing files; secretive cell phoneuse in the office; and unauthorized intrusions into other people’s desks.2011 ONSC 315 (CanLII)[97] The adjudicator found that the employer had failed to prove these allegations upon whichthe termination was based. It follows that he must not have accepted Ms. Telfer’s evidence onthese points, although he provides no reasons for rejecting her evidence. The adjudicator refersto a lack of particularity and supporting documentation prior to the hearing, but these concernswould form the basis for excluding evidence or ordering production, and would not provide abasis for rejecting sworn testimony. The only reason the adjudicator provides for rejecting theemployer’s position is found at para. 82, as follows:At the hearing, the [employer] failed to produce two key witnesses, Paul Barnettand Margaret Andoseh, whose evidence would have been critical to establishingthat the [employer’s] suspicions about [Ms. Saadi] were well founded. I mustdraw a negative inference from the failure of these witnesses to testify andtherefore conclude that the suspicions about [Ms. Saadi] are unproved. [Emphasisadded.][98] There is no indication that Ms. Telfer, as a lay person, was aware or had been advisedthat the adjudicator might draw an adverse inference from her unexplained failure to call Ms.Andoseh as a witness. However, it is worth noting that Ms. Andoseh had originally been namedas a personal respondent to the complaint of discrimination and was on the list as an expectedwitness for the respondents. Shortly before the hearing, Ms. Saadi dropped the complaint againstMs. Andoseh. She was not then called as a witness by the other respondents. Caution should beexercised before placing too much weight on an adverse inference drawn in these circumstances.[99] Drawing an adverse inference with respect to the failure of Mr. Barnett to testify isparticularly problematic. Mr. Barnett was on the witness list. He was willing to testify, andthere is every reason to believe he would have testified if he had not been called awayunexpectedly on a family emergency. An explanation was provided for his absence. Audmaxattempted to provide his evidence in writing, which was refused by the adjudicator and no otheroption for obtaining his evidence was raised by the adjudicator. It is incorrect in law, and

Page: 23patently unreasonable on the facts, to draw an adverse inference in this situation. An adverseinference is appropriately drawn when one would expect a witness to be called and where it isreasonable to infer that the failure to call him is based on the likelihood that his testimony wouldbe unfavourable. In this case, an explanation was provided for Mr. Barnett’s absence, and therewas no reason given for not accepting that. Further, given the written summary of Mr. Barnett’sproposed evidence, there was every reason to believe his evidence would be supportive of, ratherthan unfavourable to, the position taken by the employer.[100] Because the adverse inference with respect to Mr. Barnett was so pivotal to theadjudicator’s conclusion that Ms. Saadi’s dismissal was discriminatory, the decision is notsupportable. I find it is patently unreasonable. Further, the way in which the adjudicator treatedthe absence of Mr. Barnett on this key issue compounds his initial breach of natural justice inproceeding with the hearing without providing options to the employer for obtaining Mr.Barnett’s testimony.2011 ONSC 315 (CanLII)E. CONCLUSION AND ORDER[101] There are numerous difficulties with the adjudicator’s decision on all key points.Generally speaking, the reasons are inadequate to explain the conclusions reached as a questionof fact or law. It is simply not possible to logically follow the pathway taken by the adjudicatorand to determine the reasonableness of the conclusions reached. The reasons therefore cannot besaid to allow for appropriate judicial review, nor are they intelligible within the meaning ofDunsmuir.[102] The breach of procedural fairness with respect to Mr. Barnett’s testimony is significant.He was an important witness for the employer due to his key role in the microwave policy andhis participation in the two meetings at the heart of the findings of discrimination. Drawing anadverse inference from his failure to testify compounds the unfairness to the employer in thissituation.[103] The decision is also flawed in respect of much of the reasoning that is set out. Inparticular, there is an overall failure to indicate whether discrimination is direct, or based on theadverse impact of a neutral policy, and the test in Meiorin is not properly considered and applied.There is also a common failure to tie the alleged discrimination or discriminatory impact to aprohibited ground of discrimination.[104] It is necessary to look at these various issues cumulatively. If taken separately, somemight not reach the level of patent unreasonableness required to justify setting aside the entiredecision. However, considered cumulatively, I find the decision as a whole is fatally flawed andcan only be described as patently unreasonable. In these circumstances, I would set the decisionaside and remit the case to the Tribunal for a new hearing before a different adjudicator.

Page: 24[105] In light of that determination, there is no need to deal with the issues related to remedy.Since all the findings of discrimination fall, so too does the remedy.[106] The applicants are entitled to their costs. I would fix those costs at $10,000, inclusive ofHST and disbursements, payable by Ms. Saadi.MOLLOY J.2011 ONSC 315 (CanLII)WHALEN J.SWINTON J.Released: January 18, 2011

CITATION: Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315DIVISIONAL COURT FILE NO.: 28/10DATE: 20110118ONTARIOSUPERIOR COURT OF JUSTICEDIVISIONAL COURTWHALEN, MOLLOY and SWINTON JJ.2011 ONSC 315 (CanLII)BETWEEN:AUDMAX INC. and MAXCINE TELFERApplicants– and –HUMAN RIGHTS TRIBUNAL OF ONTARIO andSEEMA SAADIRespondentsREASONS FOR DECISIONWHALEN J.MOLLOY J.SWINTON J.Released: January 18, 2011

HUMAN RIGHTS TRIBUNAL OF ONTARIO____________________________________________________________B E T W E E N:Rustem Berisa- and -ComplainantCity of Toronto, John Crilly, Toby Druce, Boris Rosolak, Nick Flora, FosterCockburn, Al Cormier, Melanie Brown, Joe Briskos, Liam QuinnRespondents2011 HRTO 912 (CanLII)DECISIONAdjudicator:Kaye JoachimDate: May 10, 2011File Number:HR-1339-07Citation: 2011 HRTO 912Indexed as:Berisa v. Toronto (City)

AppearancesRustem Berisa, complainant))Susan Ursel, counsel)City of Toronto, Toby Druce, Boris Rosolak, Nick Flora, )Foster Cockburn, Al Cormier, Melanie Brown, Joe Briskos, ) Omo Akinton, counselLiam Quinn, Respondents )John Crilly, Respondent))no one appearing)2011 HRTO 912 (CanLII)

[1] This is a complaint referred by the Ontario Human Rights Commission (the“Commission”) under the old Part IV of the Human Rights Code in 2007.[2] The Complainant, who self-identifies as a Canadian-Albanian originally fromYugoslavia alleges that he experienced discrimination and harassment at work as aresult of his ancestry and ethnic origin and because he was perceived to be of theMuslim faith, contrary to sections 5(1) and 5(2) of the Code. He claims that he broughthis concerns to the attention of his superiors and that they failed to take steps to preventthe ongoing harassment and discrimination. He also alleges that he experiencednegative workplace consequences as a result of filing this human rights complaint,contrary to section 8 of the Code.2011 HRTO 912 (CanLII)[3] The respondents deny that any of the alleged harassing events occurred andthat, in the two instances that the complainant actually raised Code-related concerns,management responded promptly and appropriately. The respondents deny taking anyactions to retaliate against the complainant after he filed his human rights complaint.[4] This proceeding took place over 14 days from January 2009 to October 2010.Final argument following written submissions was heard in March 2011. There was anextended break during the proceedings, on consent.PARTIES NOT IN ATTENDANCE THROUGHOUT THE HEARING[5] The Ontario Human Rights Commission, initially a party to the proceedings wasgranted leave to withdraw from the proceedings in April 2010 and was removed fromthe style of cause.[6] The personal respondent John Crilly was given notice of all the dates of thehearing and attended to give evidence. The parties attempted to send him the writtenfinal argument and were unable to reach him at his last known address. The Tribunal’sattempts to reach him at his last known address were also unsuccessful. I am satisfiedthat Mr. Crilly had adequate notice of these proceedings, and chose to change his

address without notifying the Tribunal. Therefore, he remains a party to theseproceedings.PROCEDURAL AGREEMENT TO PERMIT AFFIDAVIT EVIDENCE[7] On May 10, 2010 the parties advised that they were in agreement that thefollowing witnesses’ affidavits could be tendered without cross examination: GordBeasley, Sean Shipley, Aldo Supino, Noorjahan Bala, Qadeem Hamadi and Nick Flora.My reasons for agreeing to this procedure are as follows:2011 HRTO 912 (CanLII)[8] The Tribunal hearing began in January 2009. Evidence was heard on January22, 23, 30, February 5, 6, April 27, May 4, 19 and 22, 2009. On direction from theTribunal, the respondent filed affidavits of proposed evidence in advance of the hearing,with the intention that the witness’s affidavit would constitute their evidence in chief, andsubject to minor clarifying question, would proceed directly to cross examination. Inaccordance with this direction, I heard the evidence of the following respondents’witnesses: Bill Cerovic, Foster Cockburn, Wayne Horton, Al Cormier, Liam Quinn,Melanie Brown, Carl Hornelhert and John Crilly.[9] In my view, the cross examination of these witnesses (apart from John Crilly) didnot effectively challenge their evidence, which essentially consisted in the denial of theapplicant’s evidence. It was evident to me that the applicant’s counsel had no basis tochallenge their evidence, except that their evidence contradicted the applicant’s andthat to admit the allegations made by the applicant would be detrimental to their career.[10] I did not find the cross examination of these witnesses (apart from John Crilly) tobe helpful to these proceedings.[11] After May 22, 2009, the hearing was held in abeyance on the consent of theparties based on the respondents’ counsel’s parental leave and the applicant’simpending surgery. The parties agreed to continue the hearing on April 27, 28, May 4,5, 13, 14, 20, 21, and June 17 and 18, 2010.2

[12] Due to inadvertence, the applicant’s counsel’s law firm did not maintain a recordof the resumption dates with the result that the applicant and applicant’s counsel did notattend on April 27, 2010. The hearing for April 27 and 28, 2010 was adjourned and aconference call held on April 27, 2010 to determine next steps.[13] Applicant’s counsel indicated that she was no longer available on any of thepreviously scheduled dates except June 17, 2010. The respondents’ counsel opposedthe cancellation of any further dates on the basis that the respondents have been put toconsiderable expense and inconvenience in preparing for the hearing and maintainingthe scheduled dates. Further, the events giving rise to the Application date back to1998 and the respondents would be prejudiced by any further delay. Thus, therespondents’ counsel opposed any further cancellation of dates.2011 HRTO 912 (CanLII)[14] Alternatively, if dates needed to be cancelled, the respondents proposed relyingupon detailed will says of some of their witnesses and calling only the key respondentwitnesses and the applicant’s reply evidence, so that the evidence could still becompleted by June 18, 2010. The parties agreed to discuss this possibility betweenthem, failing which I would make a ruling at the next scheduled conference call on May10, 2010.[15] Having balanced the prejudice to the respondents in further delaying the hearingagainst the applicant’s counsel’s unavailability due to inadvertence, I ruled that I wouldadjourn the May 4, 5, 13, 14 hearing dates in order to give the complainant’s counseltime to rearrange her schedule to continue on May 20, 21, June 17 and 18, 2010.[16] As stated above, the parties agreed to permit the introduction of some affidavitswithout cross examination in order to complete the hearing in the remaining daysscheduled. I permitted this arrangement as I was satisfied that the cross examination ofthese witnesses was not necessary to the full and fair resolution of the issues in thisApplication.3

THE COMPLAINANT’S ALLEGATIONS[17] The complainant began working as an Assistant Hostel Supervisor (laterrenamed Client Services Worker) with the Shelter, Housing and Support Division of theCity of Toronto in 1999. He worked at Seaton House, a City hostel for homeless men.[18] The complainant alleges that during his initial interview, one of the members ofthe interview panel, Toby Druce, asked him how his religion would affect him.[19] The complainant alleges that while at Seaton House several employees,including the respondents John Crilly, Nick Flora, Foster Cockburn, Al Cormier, MelanieBrown, and Liam Quinn made insulting comments about his ethnic origin and presumedMuslim creed.2011 HRTO 912 (CanLII)[20] John Crilly, a shift supervisor, allegedly constantly berated the complainant bycalling him a stupid fucking immigrant, an Iranian or fucking terrorist, a KGB and apiece of shit. Mr. Crilly allegedly denigrated the complainant’s qualifications becausethey were obtained in Albania and told him that he should “kiss his (Crilly’s) ass” forbeing permitted to immigrate to Canada. On one occasion Mr. Crilly allegedly told himhe should bring his wife in to do his share of the laundry. On another occasion Mr. Crillyallegedly said to him that “only fucking immigrants buy Ford Tempos.” Mr. Crilly isalleged to have called him a “fucking immigrant” on another occasion as well. On twooccasions Mr. Crilly allegedly assaulted him for standing up to his racism. In addition,Crilly repeatedly asked Berisa to do tasks that were not part of his job. This harassmentis alleged to have occurred between 1999 and March 2001.[21] Nick Flora, a shop steward allegedly called the complainant an “Iranian terrorist”a member of the KGB, and commented that he would be arrested if he attempted totravel to the United States. These comments persisted from 1999 through the fall of2001. In the context of fighting between Macedonian and Albanians in the formerRepublic of Yugoslavia, Mr. Flora is alleged to have said that if the Serbians had killedall of the Albanians there would be no problems today. Mr. Flora also allegedly failed to4

properly deal with the complainant’s harassment grievances.[22] Liam Quinn, a client services worker, is alleged to have said, on September 11,2001 following the destruction of the World Trade Centre, that as member of theCanadian Reserves, he intended to go and kill all those Muslims, while making a motionas though holding a machine gun and shooting the complainant. He allegedly woundup the clients to such a pitch that another worker, Nala B, sought refugee behind thelocked reception area.[23] Foster Cockburn is alleged to have to have called the complainant a stupidfucking immigrant, told him to go back to his country and called him a piece of shit. Inaddition, on September 12, 2001, Mr. Cockburn allegedly said that as good Christianswere killed in Muslim attacks, he would kill Muslims in return.2011 HRTO 912 (CanLII)[24] Al Cormier, a client services worker, is also alleged to have been present onSeptember 12, 2001 when Mr. Cockburn made the comments about killing Muslims andupon leaving the area, made a motion of having a gun in his hand and pretended toshoot the complainant.[25] Melanie Brown, a client services worker, is alleged to have berated thecomplainant after reading a newspaper account in late September 2001 of monumentsbeing destroyed in Afghanistan by repeatedly asking “What are you Muslims doing…?”and stating “ you are an Albanian, you are from there”.[26] Dan Anstett, program supervisor is alleged to have stated to the complainant thatbecause he was Muslim he had trouble dealing with female employees and lesbian, gayand transgendered clients. In addition, Mr. Anstett allegedly failed to properly addressthe situation when urine and feces were left on the complainant’s chair in 2002 with anote stating “welcome fucking idiot, ha ha.”[27] The complainant testified that after each incident he immediately spoke to Boris5

Rosolak, Manager of Seaton House, and Toby Druce, program supervisor, Alex Blair,shift supervisor and/or Dan Anstett program supervisor and that they failed to take anyaction to redress these incidents. He also sought assistance from Qadeem Hamadi, aprogram supervisor and practising Muslim who allegedly refused to help him becausehe was afraid in the aftermath of September 11, 2001. Another shift supervisor, GordBeasley also allegedly failed to take action.[28] The respondents denied all of the above allegations except one. Theyacknowledged that Mr. Crilly on one occasion did say to the applicant that “only fuckingimmigrants buy Ford Tempos.” They assert that, having regard to the context in whichthe comment was made, and having advised Mr. Crilly of the inappropriateness of thecomment, this isolated incident (hereinafter referred to as the “Ford Tempo” incident)does not amount to a breach of the Code.2011 HRTO 912 (CanLII)ASSESSMENT OF THE APPLICANT’S CREDIBILITY[29] I have concluded that the complainant’s evidence is not reliable and, exceptwhere there is confirming evidence, I have not accepted any of the complainant’sevidence.[30] This is not a situation which can be explained by fading or mistaken memories.One does not forget calling someone a fucking immigrant, or mistakenly threatening tokill all Muslims. The complainant’s evidence (except for the Ford Tempo incident)conflicted with every respondent witness, as well the written notes of those witnessesrecorded at the time. Even the applicant’s own notes written at the time, made nomention of any of the above allegations.[31] The complainant was not reticent in putting his work-related concerns in writing,yet not one of the written complaints or responses he filed makes any mention of any ofthe above allegations. The complainant did complain of harassment by John Crilly, butthe written documentation at the time does not reveal any ethnic or creed based form of6

harassment. Rather the written documentation relates to complaints about thelegitimacy of Mr. Crilly’s authority to direct the complainant.[32] Some of the above allegations were alleged to have taken place in the presenceof other colleagues, such as Carl Hornelhert and Noojahan Bala and those witnessesspecifically denied the complainant’s version of events, except in the case of “FordTempo incident.” The complainant did not present one witness who could confirm theabove allegations.[33] It is not credible and in keeping with the preponderance of probabilities that theManager of the Seaton House (Rosolak), and three program managers (Druce, Hamadi,Anstett) the most senior members of management in charge of a diverse governmentorganization, repeatedly refused to address allegations that members of their staff weremaking the vile and obnoxious comments described above and that one of them(Anstett) made grossly inappropriate and stereotypical comments about Muslims. It isalso not likely that Mr. Druce openly questioned whether the complainant's religionwould affect his work in an interview in which a union member and steward waspresent. That steward, Nick Flora, although a respondent in this proceeding, would havehad no reason at that time not to challenge such an offensive question.2011 HRTO 912 (CanLII)[34] It is worth noting that the Manager, Boris Rosolak, self-identifies as YugoslavianCanadian, and the program supervisor, Qadeem Hamadi self-identifies as a devoutMuslim. While members of minority ethnic groups are not immune from engaging inharassment and discrimination, or in refusing to take action against it, the commitmentof the above individuals as well as Druce and Anstett to maintaining a diverse andrespectful workplace was overwhelming.[35] Written notes taken by various respondent witnesses at the time describe thecomplainant’s demeanour and responses during meetings in a manner which isconsistent with my own observations of the complainant during his oral evidence. Thecomplainant refused to acknowledge that he might ever have been in the wrong, heengaged in lengthy explanations and justifications, and he consistently pointed out what7

he believed was a breach of the rules or policies by others as an excuse not to acceptdirection from those persons. In particular, his description of how he engaged intechniques to defend himself against Crilly is inconsistent with the written notes of TobyDruce on March 3, 2001.[36] Also, the complainant readily altered his version of events throughout thehearing. In his complaint he mentioned a soiled chair in March 2002. At the hearing heembellished this to include a sign allegedly left on the chair denigrating him. Thecomplainant’s failure to mention the message on the chair prior to the hearing is notbelievable. The alleged sign was not seen by the caretaker who was called to get rid ofthe chair, a witness called by the complainant.2011 HRTO 912 (CanLII)[37] Similarly, he altered his evidence regarding the Ford Tempo incident, inventing asecond similar incident. This was contradicted by the complainant’s own witness, CarlHornelhert.ASSESSMENT OF OTHER WITNESSES CREDIBILITYJohn Crilly[38] Mr. Crilly is a personal respondent. He testified at the hearing as a witness forthe City respondent and did not file his own response or make any submissions on hisown behalf. Mr. Crilly’s employment was terminated by the City and he candidlyadmitted that he was a recovering alcoholic and drug addict who had used crackcocaine towards the end of his employment tenure. He was fairly defensive in themanner in which he gave his evidence and attempted to minimize any friction he hadwith the applicant. He was inconsistent in his evidence with respect to whether he everused the term “fucking immigrant” as opposed to a “fucking idiot” in respect of the FordTempo incident and on this point I found his evidence not believable. At the same timehe admitted that he had been reprimanded by Mr. Rosolak for calling the applicant a“fucking immigrant” and acknowledged to Mr. Rosolak that he had been in the wrong,which indicates that he probably did use the word “immigrant” rather than “idiot” on that8

occasion. I find that Mr. Crilly was not a credible witness.[39] Thus, in those cases where the applicant alleges that Mr. Crilly made derogatoryremarks, I am left with the evidence of two incredible witnesses. In these circumstances,I rely upon the onus of proof and conclude that the complainant has not established ona balance of probabilities that Mr. Crilly made other ethnic based comments to theapplicant (other than the “fucking immigrant” comment).Toby Druce2011 HRTO 912 (CanLII)[40] Mr. Toby Druce is a personal respondent. His evidence was mostly reliable andsupported by written notes that he made at the time. The only area where his evidencewas not reliable relates to when the applicant first complained about the “fuckingimmigrant” comment and how Mr. Druce dealt with this. While Mr. Druce’s evidencewas vague and inconsistent on this point, I conclude that this was due more to thepassage of time (the event having occurred in February 2001 and the hearing beingheld in 2008 and 2009) than any deliberate attempt to deceive. The complainant reliedon statements allegedly made by this witness to a Commission investigator in February2006. I do not find this statement useful. It was not a verbatim account; the witnesswas not given an opportunity to review his notes to refresh his memory, was not givenan opportunity to review the investigator’s notes, and was not asked to sign thestatement.Boris Rosolak[41] Mr. Rosolak is a personal respondent. His evidence was given in astraightforward manner and was consistent with notes taken by him at the time. Therewas an attempt to discredit his evidence based on a written statement taken by aCommission investigator in February 2006. Mr. Rosolak did sign the statement andmade several notations where it was inaccurate. There were some matters that he didnot indicate were inaccurate which appeared to contradict his evidence given at thehearing. I am not overly concerned by these inconsistencies. They are consistent with9

the fact that Mr. Rosolak was asked questions by the Commission investigator out ofcontext, without any date attached, with inaccurate references to notes, and withouthaving an opportunity to review his notes or the applicant’s file, some four years afterthe events.[42] In my view, it is not credible that Mr. Rosolak would have failed to investigatethese overly racist comments when he had already demonstrated that he took suchalleged comments very seriously (i.e. the Ford Tempo incident, described below).Other Witnesses2011 HRTO 912 (CanLII)[43] Coworkers Foster Cockburn, Al Cormier, Melanie Brown and Liam Quinn alltestified with passion that they would never have made the comments alleged to havebeen made by them and that they were shocked and dismayed by the allegations. Thehandwritten notes of Mr. Rosolak dated January 30, 2002, immediately following receiptof the human rights complaint; confirm their immediate outrage and denial of theallegations. Their evidence was entirely believable and in keeping with thepreponderance of probabilities that front line workers with the most marginalizedmembers of society, in a diverse working environment would not have made suchcomments and understood that such comments would have been cause for justifiableand severe discipline.[44] While the evidence of Gord Beasley, Nick Flora or Qadeem Hamadi wasadmitted by affidavit (on agreement) without cross examination, their evidence wasentirely consistent with the evidence of all other respondent witnesses.[45] I conclude that whatever the inconsistencies in the respondents’ witnesses theywere far more credible than the applicant.[46] Accordingly, where the allegations of discrimination rest entirely on thecomplainant’s evidence, I do not accept his evidence as reliable and credible.10

CONCLUSION ON ALLEGATIONS OF HARASSMENT AND DISCRIMINATION[47] There are some allegations which are corroborated by other witnesses and Iaccept those events as follows:The Fucking Immigrant Comment[48] On March 3, 2001 the complainant reported to a shift supervisor that John Crillyhad assaulted him. The complainant testified that Mr. Crilly also called him a fuckingstupid immigrant during the course of this attack.2011 HRTO 912 (CanLII)[49] Toby Druce, program manager gathered the witness reports to this incident. Thecomplainant described this incident as Mr. Crilly grabbing his shoulder in an angrymanner. Mr. Crilly reported touching the complainant’s shoulder. There were nowitnesses to the event. The written statements of the complainant and Mr. Crillymentioned that the precipitating event was Mr. Crilly giving the complainant directionsabout whether condiments should be left out in the open for the clients to helpthemselves or whether they should be kept restricted and handed out upon request.The complainant’s written statement at the time makes no mention of any ethnic basedslurs. The complainant initially related his complaint to three employees. The witnessstatements of these employees do not record that the applicant made any allegations ofan ethnic slur.[50] The employer decided not to take any disciplinary action against Mr. Crilly overthis event. The complainant decided to pursue the matter and alleged that he wasbeing harassed by Mr. Crilly.[51] During the investigation of the harassment allegations, the complainant met withBoris Rosolak, Manager of Seaton House, and complained that Mr. Crilly had beenharassing him for some time. When asked for particulars, the complainant relatedvarious events, including that Crilly had previously and often denigrated his educationalqualifications, that Crilly had once said that “only stupid fucking immigrants buy Ford11

Tempos” and that Crilly had once told the complainant to get his wife to come and showhim how to use the laundry machines at Seaton House. Mr. Rosolak’s notes indicateother complaints but none of these engage any Code-related grounds.[52] Of the various allegations made by the complainant, Mr. Rosolak decided thattwo were worthy of further investigation: the “fucking immigrant” comment and thelaundry incident. Mr. Rosolak spoke to Mr. Crilly.[53] Mr. Crilly reported to Mr. Rosolak that he had made a comment about the FordTempo to the complainant when the complainant’s car broke down admitting that hesaid only “fucking idiots.” Mr. Crilly attempted to explain himself by saying the hehimself had previously owned a Ford Tempo and felt he was mocking himself. Mr.Rosolak advised him that whether he said fucking idiot or fucking immigrant, neitherwas acceptable and Mr. Crilly agreed that his conduct was inappropriate.2011 HRTO 912 (CanLII)[54] Mr. Rosolak advised Mr. Crilly that if any further complaints were received of thisnature, whether by Mr. Berisa or by any other worker, there would be further disciplinaryaction. Mr. Rosolak testified that he considered his discussion with Mr. Crilly to amountto a verbal warning.[55] Mr. Rosolak testified that he advised the complainant that he had spoken to Mr.Crilly about the fucking immigrant comment and that he was to report any furtherincidents by Mr. Crilly to him. The complainant denied that Mr. Rosolak reported backto him on his investigation. I note that in his statement to the Commission Mr. Rosolakstated that he did not report back to the complainant and also, that Mr. Rosolak had nonotes confirming that he had spoken with the complainant.[56] Having regard to the relative credibility of the witnesses, I accept Mr. Rosolak’sevidence on this point. I have already explained why I have given little weight to theCommission witness statements. Having regard to the fact that Mr. Rosolak believedthe Ford Tempo incident was serious enough to warrant a second and personalinvestigation, I find that it is more likely than not that he would have reported back to the12

complainant with the results of his investigation.The Laundry Incident[57] With respect to the laundry incident and the reference to the complainant’s wife,Mr. Rosolak concluded that in the context in which the statement was made, it did notrise to the level of a Code-related harassment.Educational Qualifications[58] As stated above, the complainant complained that Mr. Crilly constantlydenigrated his educational qualifications. In his view, they were degraded because thecomplainant was from Albania.2011 HRTO 912 (CanLII)[59] Toby Druce testified that “I did think John Crilly put more value on people withlived experience, he did not have the same level of appreciation for those with aneducation.” He also confirmed that John Crilly did generally make comments aboutstaff’s education and stated that he thought John Crilly made comments regarding therole of the CSW and that previous training was not relevant to the role of CSW.[60] Boris Rosolak confirmed that the Complainant had raised the issue of JohnCrilly’s disrespect of the complainant’s education to him, that it was not his experiencethat the Complainant bragged or used his credentials inappropriately, but that he tookno action because the allegations about the education comments were “in closeproximity” to the Tempo incident and that he felt his warning to John Crilly about the“stupid fucking immigrant” comment would be sufficient. He also confirmed on cross thathe had not specifically told the Complainant about how he had dealt with the matter ofthe education comments.[61] At the step one meeting into the harassment grievance, Mr. Rosolak advised thecomplainant that his allegations of harassment by Mr. Crilly were not substantiated andthat the employer viewed the problem as emanating from the complainant’s refusal to13

accept direction from shift supervisors. The employer noted that shift supervisors, otherthan Mr. Crilly, had expressed similar concerns about the complainant. Although thecomplainant did not agree with the employer’s view, he did not pursue his harassmentgrievance.Conclusions on Fucking Immigrant Comment[62] In my view, the employer’s response to Mr. Crilly’s admission that he stated tothe complainant that “only stupid fucking immigrants buy Ford Tempos” fell within thebounds of a reasonable response. The discipline meted out could have been harsher(one witness testified that she would have expected the employer to fire an employeewho made such a comment), but these are judgment calls and I am loath to concludethat the fact that I might have made a different judgment call amounts to a breach of theCode.2011 HRTO 912 (CanLII)[63] The human rights case law addressing whether a single incident amounts to abreach of the Code is divided.[64] In Abdallah v. Thames Valley District School Board, 2008 HRTO 230 (CanLII),Dr. Abdallah was enrolled in an ESL program provided by the respondent Board. Hehad been accused of cheating, and in a heated exchange when he later sought toaddress the situation with one of the teachers who had accused him, he claimed thatthe accusations were discriminatory. The teacher responded by saying “I am sick andtired of immigrants crying discrimination when they don’t get what they want.” Therethen was a conversation about what she meant by immigrant in which she indicated thatshe herself was not an immigrant because she was born in Canada.[65] Vice-Chair Chadha decided that this comment did amount to discrimination. Itwas argued by the individual respondent that this comment should be taken in itscontext as being derived from the aggressive conduct of Dr. Abdallah, and was adescription of the teacher’s experience of discrimination complaints. This argument wasrejected. It was found that the fact that the teacher taught ESL and should have been14

aware of how such a comment would be taken weighed heavily. Also, the commentwas exacerbated by the personal respondent’ subsequent discussion of the meaning of“immigrant” being distinguishable from the status of being “Canadian.”[66] In Pillai v. Lafarge Canada Inc., [2003] B.C.H.R.T.D. No. 26, the British ColumbiaHuman Rights Tribunal held that an ongoing pattern of racial slurs uttered behind Pillai'sback and one instance of a slur being shouted at him in the midst of an argumentconstituted a poisoned work environment and therefore discrimination.[67] I find that those cases are distinguishable from the case before me. In Abdallah,the comment was made by a teacher to a student, a relationship of particularvulnerability. I note that Mr. Crilly, although a shift supervisor, and therefore superior tothe complainant in the line of supervision, was not a member of senior management.There is little doubt that the complainant did not feel vulnerable to Mr. Crilly and tookevery opportunity to engage him in a confrontational manner. In fact, part of the issuebetween them was the complainant’s refusal to recognize Mr. Crilly’s authority.2011 HRTO 912 (CanLII)[68] In Pillai, there were numerous comments made behind the applicant’s back, inaddition to the single racial slur. That was not the case before me.[69] Also, in this case, unlike the other cases, the employer took action to disciplinethe worker and reported back to the complainant. This dispels the submission that thecomplainant would have believed that such comments were acceptable, which couldhave led to a poisoned work environment.[70] In Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 (CanLII) theCourt states that in an employment context, an isolated racial slur, even one that is veryharsh does not necessary amount to discrimination (paragraph 1129).[71] Similarly in Dhanjal v. Air Canada, [1996] C.H.R.D. No. 4, the Board concludedthat an isolated slur, will not by itself constitute harassment (paragraph 212) and evenone uttered by management does not necessarily trigger the duty of due diligence15

(paragraph 246).[72] In Banwait v. Forsyth, 2008 BCHRT 81, the Tribunal found that the applicant’scolleague had referred to him as a “fucking Hindu” during the course of a heatedexchange. The Tribunal concluded that this single racial slur did not constitute aviolation of the Code.Conclusions on Education Comments[73] I conclude that Mr. Crilly, who had little formal education in working with addicts,but was a former addict himself, put little value on education and credentials. I find thatMr. Crilly’s comments to the complainant devaluing his education were not related to hishaving obtained his credentials in Albania, but were a general denigration of the valueof education in dealing with addicts. The evidence established that he similarlydenigrated the educational qualifications of other colleagues.2011 HRTO 912 (CanLII)Conclusions on the Laundry Comment[74] In my view, the single comment about bringing his wife in to teach him to use thelaundry does not rise to the level of Code-related harassment.DID THE RESPONDENTS REPRISE AGAINST THE COMPLAINANT FOR FILING ACOMPLAINT?Failure to award a Housing Re-direct worker Position[75] The complainant alleged that the employer’s failure to assign him to a counsellorposition following a successful competition and his removal from the position ofalternate rate housing redirect worker were direct consequences of his filing a humanrights complaint.[76] The competition for various counsellor positions was held around September 11,16

2001. Several employees, including the complainant were successful in the competitionand Mr. Rosalak assigned the successful candidates to various programs in SeatonHouse. Although there was a counsellor position in the O’Neill program, Mr. Rosalaktestified that he decided not to assign the complainant to that position because of hisongoing conflicts with clients and shift supervisors at O’Neill house. Instead he assignedthe complainant to a temporary counsellor position at Birkdale House.[77] However, Joe Brinkos, the program supervisor at Birkdale House advised thecomplainant on October 3, 2001 that no position was available because the employeeon disability leave, whom he was to replace, returned to work unexpectedly. TheComplainant filed a grievance with respect to the counsellor competition on the basisthat less senior part-time employees had been offered counsellor positions at otherlocations. I note that the documentary evidence submitted by the respondent to supportthe employee returning to work is not consistent in terms of timing (the documentssuggest that a worker on disability leave did not return to work until much later).2011 HRTO 912 (CanLII)[78] The employer agreed to place the complainant in a position of alternate rate reliefcounsellor and housing redirect worker at O’Neill house. The employer understood thisto be a complete resolution grievance which was subsequently withdrawn by the union.[79] I find that the complainant has not established on a balance of probabilities thatthe complainant was assigned to Birkdale house or not assigned to Seaton as a reprisalfor filing a human rights complaint. I conclude that the City has established a nondiscriminatoryexplanation why the complainant was assigned to Birkdale rather thanSeaton house and a non-discriminatory explanation why the position at Birkdale did notmaterialize. I further find that the applicant has not presented any credible evidence todemonstrate that the employer’s explanation was a pretext.Removal from Housing Re-direct Worker Position[80] In 2003 the employer advised the complainant that he was removed from theposition of housing redirect worker and returned to a position as a client services worker17

as the employer had lost confidence in his ability to represent the employer in thatcapacity. The complainant views this as another form of reprisal.[81] The employer relied upon three incidents in which the complainant allegedlycomported himself in an unacceptable manner, as a basis for removing the complainantfrom his position. In April 2002 the complainant had a conversation with a femalecaseworker from the Workplace Safety and Insurance Board about his benefits. Thecaseworker subsequently sent an email on May 2002 to the employer alleging that thecomplainant had refused to allow her to speak, questioned her about her ethnicbackground and threatened to sue the City.2011 HRTO 912 (CanLII)[82] On May 17, 2002 the complainant had a conversation with Ms. Funnel about hisson’s application for a position as client services worker. Ms. Funnel subsequently sentan email to the employer alleging that the complainant had been aggressive and rude,had questioned her credentials, had threatened to go to a supervisor and had insistedthat his son would attend at the next stage of the process for a written examination.[83] On October 16, 2002 he had a dispute with a front line worker at Social Services.[84] On April 14, 2003, the employer received a complaint about the complainant’sbehaviour at a public event.[85] I find that that the complainant has not established on a balance of probabilitiesthat the complainant was removed from the housing redirect worker position as areprisal for filing a human rights complaint. I conclude that the City of Toronto hasestablished a credible non-discriminatory explanation why the complainant wasremoved from the housing redirect worker position and the applicant has not presentedany credible evidence to refute the employer’s non-discriminatory explanation.QUESTIONING THE COMPLAINANT’S ABILITY TO WORK WITH WOMEN[86] The complainant testified that Mr. Anstett challenged whether he could work with18

women or lesbian gay or transgendered clients as he was a Muslim. Mr. Anstett deniedbeing aware that the complainant was Muslim or that he questioned his ability to workwith the lesbian, gay and transgendered community. Mr. Anstett agreed that heapproached the complainant to discuss whether he had difficulty working with women,in light of the above incidents, all of which involved women. I find that Mr. Anstett’sdiscussion was prompted, not by any stereotype he held about Muslim men, but directlyby the complaints received by three women about his interaction with them. There isnothing discriminatory in this.FAILURE TO INVESTIGATE2011 HRTO 912 (CanLII)[87] The complainant submitted that the City’s failure to investigate the allegations setout in the complaint amounted to a breach of the Code. The complaint was filed on May2002. At that point, City’s legal department took responsibility for filing a response.However, Boris Rosolak did speak to every person named in the complaint and askedfor their response to the allegations. Each of the personal respondents denied makingthe comments alleged.[88] The complainant alleges that this level of investigation was inadequate and thefailure to mount a reasonable investigation amounts to a breach of the Code. Thecomplainant submitted that the City’s own human rights policy required it to investigate,jointly with the legal department.[89] The corporate respondent denied that the policy required a joint investigation. Itis unnecessary for me to comment on the meaning of the corporate respondent’shuman rights policy. The question before me was whether the corporate respondentbreached the complainant’s rights in its response to the complainant’s formal humanrights complaint.[90] Essentially Boris Rosolak conducted a brief investigation and concluded that thecomplainant’s allegations were untrue. This conclusion was based in part on the factthat he felt that the allegations against him were preposterous and untrue and that the19

allegations against the others were also preposterous.[91] The City’s human rights office declined to inquire into the allegations on the basisthat they were being dealt with through the human rights commission process.[92] I conclude that this was not an inappropriate response in the particularcircumstances of the case. In some situations, the fact that the Commission was alsoinvestigating might not relieve an employer of an obligation to conduct its own internalinvestigation. In this case however, I accept that the corporate respondent’s decision toallow the Commission process to play out was a reasonable response. Boris Rosalakhad limited ability to conduct an investigation, as he was a named respondent and thecomplaint was primarily being handled by the legal department. Their efforts todetermine the matter is protected by privilege. Nonetheless, Mr. Rosolak did inquire ofseveral named respondents their response. They each denied the allegations.2011 HRTO 912 (CanLII)[93] It does not make sense that the corporate respondent would be obliged toconduct two investigations, one by the human rights office and one by the legaldepartment in response to the human rights complaint.[94] I find that it was reasonable that Mr. Rosolak, having done a cursory investigationand satisfied himself that the allegations could not be substantiated, except through aformal legal process, left the formal investigation and response process to the legaldepartment. The nature of the allegations (he said, she said) could only be resolvedthrough a formal hearing process, which is how the matter eventually proceeded beforeme.20

[95] The Application is dismissed.Dated at Toronto this 10 th day of May, 2011.“Signed by”_________________________________________Kaye JoachimMember2011 HRTO 912 (CanLII)21

THE COURT OF APPEAL FOR SASKATCHEWANCitation: 2011 SKCA 34 Date: 20110315Between: Docket: 1860Patricia BigstoneAppellant (Defendant)- and -2011 SKCA 34 (CanLII)Garnet St. Pierre- and -Respondent (Plaintiff)Saskatchewan Power CorporationAppellant (Defendant)Between: Docket: 1861Saskatchewan Power CorporationAppellant (Defendant)- and -Garnet St. Pierre- and -Patricia BigstoneRespondent (Plaintiff)Respondent (Defendant)

Coram:Jackson, Smith and Ottenbreit JJ.A.Counsel:Randall M. Sandbeck for the Appellant, Patricia BigstoneJames S. Ehmann, Q.C. for the Appellant, Saskatchewan PowerCorporationChristopher N.H. Butz for the RespondentAppeal:From:Q.B.G. No. 1512 of 2008, J.C. ReginaHeard: November 16, 2010Disposition re 1860: DismissedDisposition re 1861: DismissedWritten Reasons: March 15, 2011By:The Honourable Mr. Justice OttenbreitIn Concurrence: The Honourable Madam Justice JacksonIn Dissent: The Honourable Madam Justice Smith2011 SKCA 34 (CanLII)

2011 SKCA 34 (CanLII)

Ottenbreit J.A.Page 1I. Introduction[1] The plaintiff, Garnet St. Pierre (“St. Pierre”), commenced an action intort pursuant to s. 2 of The Privacy Act, R.S.S. 1978 c. P-24 (“the Act”) againstthe defendants, Saskatchewan Power Corporation (“SPC”) and PatriciaBigstone (“Bigstone”), alleging that Bigstone had violated his privacy whileshe was an employee of SPC.2011 SKCA 34 (CanLII)[2] SPC and Bigstone, in separate applications, moved under Rule 173(a)of The Queen’s Bench Rules to strike out the statement of claim on the groundit disclosed no reasonable cause of action and under Rule 173(c) on the groundthat the statement of claim had no merit and was scandalous, frivolous orvexatious and an abuse of the court’s process. The Chambers judge dismissedeach of the applications. After obtaining leave, SPC and Bigstone have eachseparately appealed this decision. The appeals were heard together and this isthe decision on each of the appeals.II. Evidence and Background[3] Bigstone was the personal and property guardian of her grandmother,Mary St. Pierre. Mary St. Pierre, in 2003, transferred her home in Yorkton toSt. Pierre who was her grandson. Bigstone commenced an action for recoveryof the house from St. Pierre on the basis that the transfer was anunconscionable transaction and that he had breached his fiduciary duty andposition of trust with Mary St. Pierre. After trial, Bigstone was successful.

Page 2This decision was upheld on appeal. The full text of the trial judgment can befound at 2008 SKQB 350.[4] Mary St. Pierre had lived with her two sons in the house. Although theylooked after their mother, they let the house fall into disrepair and failed topay the taxes. At trial, the Court found that St. Pierre had received title to thehouse on the basis that his grandmother could continue to live in the house andhe would do the repairs and pay the taxes. He persuaded her to move out of thehouse temporarily to live with her daughter so he could do repairs. But by thethird week of October 2003, about one month after the transfer, St. Pierre hadevicted Mary St. Pierre’s sons with whom she lived from the house and placedan advertisement in the local newspaper for a house available for rent. He hadthe house rented by the first week of November 2003. St. Pierre’sgrandmother did not return to the house although she wanted to do so. ByJanuary 2004, she needed medical attention and was hospitalized.2011 SKCA 34 (CanLII)[5] In cross-examination during the trial, Bigstone disclosed that she hadused her position as a customer service representative with SPC to access SPCrecords to confirm her grandmother’s residence had been rented to a thirdparty.[6] St. Pierre commenced an action for damages for violation of his privacypursuant to the Act two months after the decision of the trial judge declaringthe house transfer unconscionable. He alleged Bigstone’s accessing of the

Page 3records of SPC was an actionable violation of his privacy rights pursuant tothe Act, and alleged SPC was vicariously liable for Bigstone’s actions.[7] The substance of St. Pierre’s claim can be found at paras. 7 to 11 of thestatement of claim:7. Between September 2003 to March 2007, the Defendant, Patricia Bigstone,improperly accessed information on the Plaintiff, by way of utilizing theSask Power Corporations informational data base through accessinginformation that was stored within their computers, while on duty as anagent of Defendant, Saskatchewan Power Corporation for her own personalgains.8. The Defendant, Patricia Bigstone, used the improperly receivedinformation to assist in commencing legal proceedings against the Plaintiff.9. The Defendant, Patricia Bigstone, wilfully and without right, violated theprivacy of the Plaintiff.10. As a result of this violation, the Plaintiff has suffered injury and damages.11. The Defendant, Saskatchewan Power Corporation is vicariously liable forthe actions of it’s employee, Defendant, Patricia Bigstone.St. Pierre served a Reply to Demand for Particulars indicating that Bigstonewas the source of the information that forms the basis of the allegations of hisclaim but, beyond that, provided no further details about the accessing of theinformation or the nature of it.2011 SKCA 34 (CanLII)[8] On the application below, Bigstone swore an affidavit admitting that sheaccessed the SPC records and indicating that she believed she had theauthority to confirm that the property had been rented out pursuant to herappointment as her grandmother’s personal and property guardian. She statedthat St. Pierre had advertised their grandmother’s house for rent in thenewspaper as well as posted for rent signs on the property. She had accessedthe SPC information after she had been advised that the property had been

Page 4rented out. She alleged that the information respecting the renting of theproperty was not private information.III.Decision of the Chambers Judge[9] The Chambers judge determined the following at p. 4:I am not satisfied that it is plain and obvious that the plaintiff’s claim as pled forbreach of privacy against the defendant Bigstone and for vicarious liability againstSask Power will fail as disclosing no reasonable cause of action. The issues ofwhether the defendant Bigstone’s actions breached the plaintiff’s privacy rights andwhether her acts were so connected to authorized acts to justify the imposition ofvicarious liability (even in light of her comment that she was acting outside heremployment) must be resolved at trial. Likewise, it cannot be said that it is plainand obvious that litigation privilege applies, as the defendants argue, such that noevidence of the defendant Bigstone’s conduct may be introduced at trial.On the application under Rule 173(c) and (e), the court can consider the affidavitevidence to determine whether the claim is frivolous, vexatious, scandalous and/oran abuse of process. If it is obvious that the case is devoid of all merit or cannotpossibly succeed or if it is obvious the claim is an abuse, the claim should be struck(Sagon v. Royal Bank of Canada (1992), 105 Sask. R. 133 (C.A.)).Again, I am not satisfied that this test has been met in this case. While thedefendants argue the plaintiff has an ulterior motive in pursuing this claim, if on thefacts and law there was a privacy breach, the claim would not be viewed asvexatious or abusive. The outcome of this claim depends on the evidence sought tobe adduced and the evidence admitted at the trial.2011 SKCA 34 (CanLII)[10] She dismissed both applications to strike. Leave to appeal was grantedbut not on grounds having to do with issues related to litigation privilege orvicarious liability, which were also argued before the Chambers judge.IV. Position of the Parties[11] Bigstone argues that the information accessed by her was informationrelated to property and is therefore not private information to which the Act

Page 6statement of claim are imprecise, ambiguous and lacking in particularity andcould refer to non-personal and non-confidential information which revealsno lifestyle or personal choices of St. Pierre. SPC argues that nothing pleadedby St. Pierre can be interpreted as facts material to establishing a foundationfor the existence of a reasonable expectation of privacy.[13] With respect to Rule 173(c), SPC argues that nothing in the statementof claim and the evidence in Bigstone’s affidavit, including the reasons of theQueen’s Bench judge below, supports the existence of a reasonableexpectation of privacy on the part of St. Pierre respecting the information thatBigstone retrieved, and therefore the claim cannot succeed.2011 SKCA 34 (CanLII)V. Jurisdiction and Standard of Review[14] Whether the Chambers judge erred in determining that it was not clearand obvious that there was no reasonable cause of action and that the actionis frivolous and vexatious is a question of law. The standard of review in thiscase is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235at para. 8.VI. AnalysisA. Introduction[15] The issue in these appeals is whether it is plain and obvious that St.Pierre’s claim discloses no reasonable cause of action or is frivolous,vexatious or otherwise an abuse of the court. For the reasons hereinafter setforth, the appeals of SPC and Bigstone are dismissed.

Page 7B. Reasonable Cause of Action[16] The test with respect to striking a claim under Rule 173(a) because itdiscloses no reasonable cause of action was set forth in Sagon v. Royal Bankof Canada (1992), 105 Sask. R. 133 (C.A.). It reads as follows at pp. 139 and140:In determining whether a claim should be struck as disclosing no reasonablecause of action, the test is whether, assuming the plaintiff proves everything allegedin his claim, there is nevertheless no reasonable chance of success, or to put itanother way, no arguable case. The court should exercise its jurisdiction to strikeon this ground only in plain and obvious cases and where the court is satisfied thatthe case is beyond doubt: …2011 SKCA 34 (CanLII)[17] With respect to the requirement that facts which are pleaded shouldsupport conclusions, Cameron J.A., in Ducharme v. Davies, [1984] 1 W.W.R.699 (Sask. C.A.), citing a passage from The Law of Civil Procedure, Willistonand Rolls, vol. 2 at pp. 654 and 677 said as follows:In construing a pleading, the presumption is always against the pleader because heis taken to have stated his own case in the best possible light and in the manner mostfavourable to himself....In an action for damages for negligence, the plaintiff must in his statement of claimspecifically plead such facts as are intended to be relied upon as establishingnegligence with sufficient particularity to enable the other party and the court toknow on what allegations he bases his case. To plead merely that the defendant wasnegligent is to plead a conclusion of law. Such a plea is bad unless accompanied bya plea of the particular facts in respect of which the negligence is alleged.[18] The task before the Chambers judge was whether the essential elementsof the statutory tort had been pleaded to the extent that they set out an arguablecase which met the threshold in Sagon.

Page 8[19] Whether the pleadings are sufficient is informed by the provisions of thestatute and the case law which has interpreted the Act. To date the Act hasreceived very little judicial consideration in Saskatchewan and whatinformation is private under the Act and what are the essential elements of thestatutory tort have yet to be fully defined by our courts. There has been noconsideration of the Act by this Court. The germane portions of the Act arefound in ss. 2, 3 and 6:2 It is a tort, actionable without proof of damage, for a person wilfully andwithout claim of right, to violate the privacy of another person.3 Without limiting the generality of section 2, proof that there has been:(a) auditory or visual surveillance of a person by any means includingeavesdropping, watching, spying, besetting or following and whether or notaccomplished by trespass;(b) listening to or recording of a conversation in which a personparticipates, or listening to or recording of messages to or from that personpassing by means of telecommunications, otherwise than as a lawful partythereto;(c) use of the name or likeness or voice of a person for the purposes ofadvertising or promoting the sale of, or any other trading in, any property orservices, or for any other purposes of gain to the user if, in the course of theuse, the person is identified or identifiable and the user intended to exploitthe name or likeness or voice of that person; or(d) use of letters, diaries or other personal documents of a person;without the consent, expressed or implied, of the person or some other person whohas the lawful authority to give the consent is prima facie evidence of a violationof the privacy of the person first mentioned.6(1) The nature and degree of privacy to which a person is entitled in any situationor in relation to any situation or matter is that which is reasonable in thecircumstances, due regard being given to the lawful interests of others.(2) Without limiting the generality of subsection (1) in determining whether anyact, conduct or publication constitutes a violation of the privacy of a person, regardshall be given to:(a) the nature, incidence and occasion of the act, conduct or publication;2011 SKCA 34 (CanLII)

(b) the effect of the act, conduct or publication on the health and welfare, orthe social, business or financial position, of the person or his family orrelatives;(c) any relationship whether domestic or otherwise between the parties tothe action; and(d) the conduct of the person and of the defendant both before and after theact, conduct or publication, including any apology or offer or amends madeby the defendant.Page 9[20] Apart from the Act, the development of the concept and categories ofprivacy interests has been largely driven by Charter cases. The generallyaccepted categories include personal, territorial and informational privacy: R.v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432. The Supreme Court of Canada,in R. v. Duarte, [1990] 1 S.C.R. 30 at p. 46, stated that informational privacy:[M]ay be defined as the right of the individual to determine when, how, and to whatextent he or she will release personal information.2011 SKCA 34 (CanLII)[21] In Charter analyses, the extent to which the state can infringe theseinterests is defined in part by the concept of reasonable expectation of privacy.As an initial observation, the Act does not appear to be designed, like ss. 7 and8 of the Charter, as a shield to limit state infringement of privacy, but rathera sword to allow compensation for infringement of privacy. This suggests thatthe privacy the Act protects may be more extensive, and different in somerespects, than privacy under the Charter. The analytical approach to whetheran expectation of privacy exists and is breached in a particular case may bedifferent than the approach into Charter cases.

Page 10[22] Black’s Law Dictionary, 9 th ed. provides the following definitions ofprivacy:The condition or state of being free from public attention, to intrusion into orinterference with one’s acts or decisions.autonomy privacy – An individual’s right to control his or her personal activities orintimate decisions without outside interference, observation or intrusion.informational privacy – A private person’s right to choose to determine whether,how and to what extent information about oneself is communicated to others,especially sensitive and confidential information.2011 SKCA 34 (CanLII)This general definition of privacy has as its hallmarks a person’s freedomfrom attention, intrusion or interference.[23] Section 2 does not define privacy but we know from the preamble to s. 3,which reads “without limiting the generality of section 2”, that the concept isarguably quite broad. Section 3 gives examples not of the types of privacy butof prohibited acts which infringe privacy. Generally speaking the examples allhave the salient features of “attention to”, “intrusion into” or “interferencewith” found in the general definition of privacy referred to above. From theexamples set forth in s. 3, some of the kinds of privacy protected by the Actcan be inferred and generally speaking, they would arguably be the same kindsenunciated in Tessling. However, none of the categories of the examples ofprohibited acts speak to necessarily compromising a biographical core ofpersonal information or intimate details of the lifestyle and personal choicesof individuals although the prohibited acts can certainly do so in a particularcase. Rather, the listed categories speak of a privacy interest that is both morebroad and less intimate than the Charter concepts, which would, for example,not prohibit surveillance in a public place under most circumstances.

Page 11[24] Likewise, s. 3(b) potentially casts a wide net, making any listening toor recording of a conversation, not just the interception oftelecommunications, a violation of privacy. Again, there is no suggestion ins. 3(b) that accessing of core biographical information is an essential element.The gist of this subsection is arguably the act of an unexpected andunwarranted intrusion into the conversation.2011 SKCA 34 (CanLII)[25] Section 3(c) deals with acts amounting to unauthorized use andexploitation of someone’s personal characteristics for gain where the personbecomes identified to the public. Intention to exploit appears to be an essentialelement here, and core biographical information and intimate details arearguably not essential. It might be enough, for example, if a picture of aperson is used as part of the exploitation. Section 3(d) deals with the use of thedocuments of a person. It may be inferred that an infringement such as thismay result in a greater likelihood of compromising confidential and moreintimate information. Although accessing the letters, diaries and otherpersonal documents may be part of the breach, an essential element here as in3(c) is use of those papers.[26] Based on just the examples in s. 3, the Act appears to make actionableintrusive behaviours which cover a wide spectrum of privacy interests. Moreimportantly, the wording of the Act does not limit the privacy interests tothose kinds set forth in s. 3. The exact ambit of the Act has yet to be

Page 12determined. It may be expected, however, that whether a particular behaviourbreaches an expectation of privacy will be fact specific.[27] The wording of the Act arguably does not require that a claim alleginga breach of privacy respecting information must necessarily plead that theinformation accessed is confidential or reveals intimate details of the lifestyleand personal choices of the plaintiff. This is not to say that the Act does notmake the accessing of such information actionable and that certain Charterconcepts of privacy and Charter analysis would not be apt in a particular case.To what extent Charter concepts and a Charter approach would be helpfulremains to be determined. What is clear is that the Charter concept ofreasonable expectation of privacy and its corollary concepts are arguably notcongruent with the “privacy” or an “expectation of privacy”, the violation ofwhich is actionable under the Act. Based on an examination of the Act,pleadings in terms of Charter concepts of reasonable expectation of privacyare arguably not therefore essential to a claim under the Act. The argument ofSPC that the pleading is deficient because it lacks sufficient facts whichwould allege a violation of an expectation of privacy identical or very similarto the Charter concept fails.2011 SKCA 34 (CanLII)[28] Cases respecting the Act have been few. They are instructive only inproviding examples of the nature of the privacy interest arguably protected.In Kish v. Chapple (1999), 179 Sask. R. 124 (Q.B.), the court struck out astatement of claim on the basis that it did not disclose a reasonable cause ofaction. The plaintiff alleged that the defendant was involved in an illegal

Page 13investigation of the plaintiff and alleged facts to substantiate the existence ofan investigation. The court concluded that an investigation may be consideredprima facie in violation of the individual’s privacy but determined that thefacts alleged did not support a finding that the defendant “wilfully and withouta claim of right violated the plaintiff’s privacy.”[29] In Peters-Brown v. The Regina District Health Board, (1996), 136 Sask.R. 126 (SKQB), the court appears to have assumed that the confidentialpatient information was potentially covered by the Act. However, the case wasdecided on the basis that the disclosure of information was not wilful.2011 SKCA 34 (CanLII)[30] In Jess v. Saskatoon District Health Board, 2007 SKQB 357, 305 Sask.R. 207, the release of confidential medical records of the plaintiff were caughtby the ambit of the Act, but the court ultimately found that the disclosure wasauthorized or required by a law and was therefore not a violation of theplaintiff’s privacy.[31] In Cole v. Prairie Centre Credit Union Ltd., 2007 SKQB 330, [2008] 1W.W.R. 115 which was an application for certification of a class action, theproposed plaintiffs were customers of the defendant who, it was alleged, hadimproperly discarded a number of computers containing confidentialinformation. One of the causes of action was a claim under the Act. For thepurposes of the application it was assumed that the confidential informationin the computers fell within the Act. The cause of action in respect of the Actwas not certified, because no facts establishing wilfulness were pleaded.

Page 14[32] In R. v. McCullough, 2001 SKQB 361, 210 Sask. R. 240, the Courtconsidered whether to exclude the fruits of search warrants. The accusedalleged that certain information including a diagram about corporateorganization, an agreement for sale and an offering memorandum may havebeen received by the police in violation of his s. 8 Charter rights but also inviolation of his rights under the Privacy Act. The court dismissed theapplication on an evidentiary basis but in obiter stated that there was a “realissue” as to whether or not the information was personal information asdefined by the Privacy Act and whether or not the accused was entitled toclaim privacy, even if the information was his to control.2011 SKCA 34 (CanLII)[33] The foregoing cases deal with the more obvious kinds of informationalprivacy and involve situations where the information was assumed to beconfidential and covered by the Act. Unfortunately, none of these cases haveexamined the essential ingredients necessary to plead a claim under the Act.This leaves the Act as the primary guideline for pleading.[34] At this stage of the development of the jurisprudence respecting the Act,a claim must contain allegations so that, at a minimum, the following is clear:1. the action is pursuant to the Act;2. there is an act or actions which are claimed to be a violation ofprivacy which comes within the arguable scope of the Act;3. the privacy is that of a person;4. the type of privacy interest violated is generally identifiable; and

5. the violation is wilful and without claim of right.Page 15[35] St. Pierre’s claim meets these minimum requirements. The pleading,where it states in para. 7 “information on the plaintiff,” although impreciseand somewhat ambiguous, is enough to identify the privacy interest and thatthe interest is St. Pierre’s and therefore personal. The pleadings also allege theact of “accessing” and that the act was wilful and without claim of right. Tothat extent, the claim as a whole accords with the arguably wide ambit of s.2 and with the spirit of the examples of violation of privacy as set forth in s.3 of the Act.2011 SKCA 34 (CanLII)[36] The admonition of Ducharme, supra, respecting the requirement toplead facts and not merely conclusions of law, is to ensure that there issufficient particularity to enable the other party and the Court to know on whatallegations a party bases his case. That goal serves, of course, many purposesincluding avoiding pointless litigation. Applying Ducharme to this case, itcannot be said that Bigstone and SPC do not know on what facts St. Pierrebases his action. As unembellished as St. Pierre’s facts may be, it is clear thathis claim for a breach of privacy under the Act goes at least this far: anemployee of a Crown corporation accessed the records of the corporation toobtain information about St. Pierre’s activities for the employee’s ownpurposes. Using the words of Sagon, the Chambers judge was unable toconclude that “there is …no reasonable chance of success” or that there wasno “arguable case.” She did not find that it was a “plain and obvious” case.I find no error in her conclusion.

Page 16C. Frivolous, Vexatious and Abuse of Process[37] In Sagon, supra, Sherstobitoff J.A., speaking on behalf of this Court, onthe appeal of an application to dismiss because the claim was frivolous,vexatious or an abuse of the court process, explained the approach to be usedat para. 18:[18] Instead of considering merely the adequacy of the pleadings to support areasonable cause of action, it may involve an assessment of the merits of the claim,and the motives of the plaintiff in bringing it. Evidence other than the pleadings isadmissible. Success on such an application will normally result in dismissal of theaction, with the result that the rule of res judicata will likely apply to anysubsequent efforts to bring new actions based on the same facts.2011 SKCA 34 (CanLII)A substantial portion of SPC’s and Bigstone’s submissions on this issuedepends on the argument that St. Pierre had no expectation of privacy in the“information”, and therefore the action has no merit. Success underRule 173(c) in this case is therefore partially dependant on success under Rule173(a). As explained above, Charter concepts of expectations of privacymight not be congruent with those of the Act. I have determined that theChambers judge did not err in failing to strike the cause of action as pleaded.As a result, this arm of the argument fails.[38] The second arm, that even if there is a reasonable cause of action theclaim in any event has no merit, also cannot succeed. On this issue we turn tothe information contained in the affidavit of Bigstone. Nothing in the affidavitforces a conclusion that the claim, at trial, would have no merit. DespiteBigstone’s arguments that merely property information and possibly theinformation of third parties were accessed, and that in any event such

Page 17information would not be private, the relevance of such assertions must betested by determining the ambit of the Act. The alleged wilfulness of theaccessing of the information is confirmed by her affidavit. However, thealleged lack of right to do so is put into issue by the affidavit. It remains tobe seen what the nature of the information was, whether confidentiality isrelevant, and whether the information related to St. Pierre at all, and whatother facts or principles may come into play. The resolution of this casetherefore depends on disputed and unknown facts, none of which are on therecord. The claim is not at this stage clearly unmeritorious, frivolous,vexatious or an abuse. The Chambers judge made no error on this point.2011 SKCA 34 (CanLII)

Page 18VII. Conclusion[39] We can see no error made by the Chambers judge in her determinationof the applications to strike. Both appeals are dismissed with costs to St.Pierre.DATED at the City of Regina, in the Province of Saskatchewan, this15th day of March, A.D. 2011.2011 SKCA 34 (CanLII)“OTTENBREIT J.A.”OTTENBREIT J.A.I concur“JACKSON J.A.”JACKSON J.A.

Page 19Smith J.A. (in dissent)[40] I have had the opportunity to read the opinion of Ottenbreit J.A. and Iam unable to agree with his conclusion that this appeal should not be allowed.It is my view that the statement of claim in this action ought to have beenstruck pursuant to Rule 173(a) on the basis that the pleadings do not disclosea reasonable cause of action. In particular, the pleading is vague in theextreme and fails to allege sufficient material facts to support the conclusionsof law on which it relies.2011 SKCA 34 (CanLII)[41] The background facts are set out in the judgment of my colleague. A fewmerit emphasis. The respondent, Mr. St. Pierre, had convinced his elderlygrandmother, Mary St. Pierre, to transfer her home to him on the conditionthat he pay the back taxes owing on the house and that he allow her to remainliving in the house. Within a month of the transaction he had arranged forMary St. Pierre and her two sons to be removed from the house, had placed amortgage on the property and had rented out the house to a third party. Theappellant, Ms Bigstone, was a granddaughter and also the property guardianfor Mary St. Pierre. She successfully brought an action to have the transactionset aside on the basis of unconscionability. The trial decision was upheld onappeal to this Court.[42] Ms Bigstone was employed by the respondent the Saskatchewan PowerCorporation as a customer service representative. As such, she had access toSask Power billing accounts. During the course of the trial, oncross-examination of Ms Bigstone, the respondent learned that she had

Page 20confirmed information that the Mary St. Pierre house had been rented to thirdparty tenants by accessing billing information in relation to the house in thecomputer records of her employer. Ms Bigstone also indicated that theproperty had been advertised for rent in the newspaper, “for rent” signs hadbeen posted on the property, and other relatives had told her the house hadbeen rented to third parties.[43] Subsequent to the trial, the respondent issued a statement of claimnaming the two appellants as defendants. The relevant portions of the claimmake reference, in paragraphs 4 and 5, to the plaintiff’s purchase of the MarySt. Pierre house and the fact that “some members of the family [including MsBigstone] responded negatively to the purchase.” It is otherwise confined tothe following allegations:6. The Defendant, Patricia Bigstone, by virtue of her employment with theDefendant, Saskatchewan Power Corporation, had as part of her job responsibilities,inter alia, a duty to look after new or transferring power subscribers.7. Between September 2003 to March 2007, the Defendant, Patricia Bigstone,improperly accessed information on the Plaintiff, by way of utilizing the SaskPower Corporations informational data base through accessing information thatwas stored within their computers, while on duty as an agent of Defendant,Saskatchewan Power Corporation for her own personal gains.8. The Defendant, Patricia Bigstone, used the improperly receivedinformation to assist in commencing legal proceedings against the Plaintiff.9. The Defendant, Patricia Bigstone, wilfully and without right, violated theprivacy of the Plaintiff.10. As a result of this violation, the Plaintiff has suffered injury and damages.11. The Defendant, Saskatchewan Power Corporation is vicariously liable forthe actions of it’s [sic] employee, Defendant, Patricia Bigstone.12. By virtue of Section 2 of the Privacy Act, R.S.S. 1978, C. P-24, s. 2, anywilful violation of the privacy of another person is, in and of itself, in [sic]actionable tort.2011 SKCA 34 (CanLII)

13. The Plaintiff is entitled to damages in accordance with Section 7 of thePrivacy Act.Page 21[44] The phrase “information on the plaintiff”, in paragraph 7, is vague andambiguous. Presumably, it means “information about or in relation to theplaintiff,” but the statement of claim does not set out the nature of theinformation about the plaintiff that the defendant Bigstone is alleged to haveaccessed, the original source of the information or circumstances in which itcame to be stored in the computers of Sask Power, or any other facts orcircumstances to support the bare legal claim that by accessing thisinformation the defendant Bigstone violated the privacy of the plaintiff. Nordoes the statement of claim set out any facts to support the bare claim that, asa result, “the Plaintiff has suffered injury and damages”.2011 SKCA 34 (CanLII)[45] The respondent Bigstone demanded particulars in relation to both points,asking the plaintiff to “identify the source of the information that forms thebasis of the allegation”, and to provide the particulars of the loss and injuryalleged. The respondent, in his reply to this demand, indicated, oddly, that“the Defendant, Patricia Bigstone” was the source of the information thatforms the basis of the allegation. He refused to provide any particulars of lossor injury, claiming that these were more properly the subject of examinationfor discovery. This response was, in my view, inadequate on both points.[46] On an application pursuant to Rule 173(a) to strike a statement of claimon the ground that it fails to disclose a reasonable cause of action, the plaintiffenjoys the advantage of the presumption of truth of all allegations of fact in

Page 22the pleadings. However, the plaintiff also bears the burden of enunciating inthe pleadings the material facts relied upon for each cause of action asserted.It is not sufficient simply to plead a conclusion of law. This is well establishedin the jurisprudence and is articulated in Queen’s Bench Rule 141, whichreads:A party may raise any point of law in his pleading. Conclusions of law may bepleaded provided that the material facts supporting such conclusions are pleaded.2011 SKCA 34 (CanLII)[47] The rationale for this requirement was well articulated by Conrad J.A.,of the Alberta Court of Appeal, in Tottrup v. Alberta (Minister ofEnvironmental Protection), 2000 ABCA 121, 186 D.L.R. (4 th ) 226, addressingthe issue of whether the plaintiffs had pled facts sufficient to support theallegation of a duty of care in a claim for negligence. She commented:7 Under Rule 129 (1)(a) [the equivalent of Rule 173(a)] neither the plaintiffnor the defendant is entitled to rely on affidavit evidence. If a plaintiff has notalleged facts capable of supporting a cause of action, then a defendant ought notbe put to the time, expense and consequences of further litigation. Conversely, if itis not plain and obvious that no cause of action exists, an application to strike mustfail.8 The principles governing an application to strike a statement of claim forfailure to disclose a cause of action are relatively settled. In brief, the Court mustassume that the allegations of fact made by the plaintiff are true. The Court thendetermines whether those facts disclose a cause of action in law. The test set out bythe Supreme Court in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980 iswhether it is " . . . plain and obvious' that the plaintiff's statement of claim disclosesno reasonable cause of action." Caution is required before concluding that theplaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. …. Subject to limitation questions, the Court may grant leave to includefurther facts if an application is made. In addition, a determination that there is nocause of action on one set of pleadings is generally no bar to framing a new actionon different facts.9 Although the pleadings should be liberally interpreted, the Court has a dutyto apply the Rule as it is intended. If the alleged facts, examined in light of the

existing law, do not disclose a cause of action the claim should be struck. Needlesslitigation should be avoided.10 With respect, I do not agree with my colleague, Russell J.A., that thequestion raised in this case should wait until a summary judgment applicationbefore examining whether a duty could be found. She concludes that the ChambersJudge erred because, in basing his decision on the grounds that the statutes did notimpose any mandatory duties on the Ministers, he failed to appreciate that thepleadings also alleged a duty "at law." She then concedes that had the pleadingsalleged only a breach of duties or powers imposed by statute, then assuming nosuch duties existed, the claim should be struck. But, because of the bare allegationof a "duty at law," the claim cannot be struck. This suggests that although to pleada statutory duty is insufficient to establish a cause of action (where uponexamination no such duty exists) merely alleging a duty at law will suffice, eventhough there are no facts pled upon which a court could conclude that such a dutyat law was owing. With respect, I do not agree.11 In my view, it is not the allegation of a duty at law that is critical, but thefacts alleged supporting such a duty. For example, a statement of claim allegingonly that "A" breached a duty owed to "B" thereby causing damage does not, in myview, disclose a cause of action. Pleadings are allegations of fact and, in my view,where negligence is alleged, that allegation must be supported by facts capable ofsustaining a determination that a duty was owed, that an act or omission occurredbreaching that duty, and that damages resulted. On a motion to strike it is theallegations of fact that must be examined to determine whether a cause of actionexists.12 There is no need to wait for an application for summary judgment. Anapplication for summary judgment requires sworn evidence. Frequently, it involvesextensive affidavits and cross-examinations. For the purposes of a R. 129(1)(a)application there is no need (in fact no opportunity) for sworn evidence. Theplaintiff receives the benefit of an assumption that all the facts which he or she haschosen to plead are true. It is not necessary to wait for summary judgment toevaluate whether those facts, interpreted in light of the existing law, establish acause of action.13 It is an appropriate function of the Court to consider and determine thesequestions of law on the basis of the alleged facts. The existence of a duty of care, forexample, may depend on the facts of the case, but whether certain facts couldsustain a finding of such a duty is a question of law. It is therefore proper, in thecircumstances of this case, to ask whether a duty of care and a breach of that dutyby these Ministers could be found on the facts alleged by the plaintiff. The Courtought not to refuse to strike solely on the grounds that the facts may, at some laterstage, turn out to be different from those alleged.14 That it is appropriate to determine these questions now is clear from the factthat some of the most important negligence cases of the last century have beenPage 232011 SKCA 34 (CanLII)

determined in the context of applications to strike, including both Donoghue v.Stevenson, [1932] A.C. 562 (H.L.) and Anns v. London Borough Council of Merton,[1978] A.C. 728 (H.L.). [Emphasis added]Page 24[48] The same principles have been expressed by this Court on a number ofoccasions. See, for example, F.P. v. Saskatchewan, 2004 SKCA 59, [2005] 3W.W.R. 257; Ducharme et al. v. Davies and Rogoschewsky, [1984] 1 W.W.R.699, 29 Sask. R. 54 (C.A.); and Saskatchewan Provincial Court JudgesAssociation et al v. Saskatchewn (Minister of Justice), [1996] 2 W.W.R. 129,137 Sask. R. 204 (C.A.).2011 SKCA 34 (CanLII)[49] This passage from the majority judgment of Cameron J.A. in Ducharmeis of most assistance:65 While pleadings are no longer subject to the precise, complex, andoccasionally oppressive requirements they once were, nevertheless they remain animportant aspect of every law suit and must be framed with care. The followingpassage taken from The Law of Civil Procedure, Williston and Rolls, vol. 2 (1970),p. 637, illustrates why a careful pleading is still important:The function of pleadings is fourfold:1. To define with clarity and precision the question in controversy betweenlitigants.2. To give fair notice of the case which has to be met so that the opposingparty may direct his evidence to the issues disclosed by them. A defendant isentitled to know what it is that the plaintiff asserts against him; the plaintiff isentitled to know the nature of the defence raised in answer to his claim.3. To assist the court in its investigation of the truth of the allegations madeby the litigants.4. To constitute a record of the issues involved in the action so as to preventfuture litigation upon the matter adjudicated between the parties.To the extent para. 6 of the statement of defence is relied upon to found the claimfor reduction of the child's damages, on the basis now being advanced, as opposedto that put forward at trial, it fails to fulfil most, if not all, of these basic functions.With respect that is my opinion of it.

66 I think it would be useful to refer to three additional passages from The Lawof Civil Procedure (which appear respectively at pp. 651, 654, and 677):In pleadings it is necessary that the material facts be stated clearly and definitelyin a concise summary way ... The facts must be alleged with certainty and withprecision and not left to be inferred from vague or ambiguous expressions or fromstatements of circumstances consistent with different conclusions. If vague andgeneral language is used nothing is defined and the issue may become hopelesslyconfused.In construing a pleading, the presumption is always against the pleader because heis taken to have stated his own case in the best possible light and in the mannermost favourable to himself.In an action for damages for negligence, the plaintiff must in his statement of claimspecifically plead such facts as are intended to be relied upon as establishingnegligence with sufficient particularity to enable the other party and the court toknow on what allegations he bases his case. To plead merely that the defendantwas negligent is to plead a conclusion of law. Such a plea is bad unlessaccompanied by a plea of the particular facts in respect of which the negligence isalleged.[emphasis added]Page 252011 SKCA 34 (CanLII)[50] In the instant case, the plaintiff alleges that the defendant Bigstone“willfully and without right, violated the privacy of the Plaintiff.” He relieson s. 2 of The Privacy Act, R.S.S. 1978, c. P-24. The relevant provisions ofthat statute are as follows:2 It is a tort, actionable without proof of damage, for a person wilfully andwithout claim of right, to violate the privacy of another person.3 Without limiting the generality of section 2, proof that there has been:(a) auditory or visual surveillance of a person by any means includingeavesdropping, watching, spying, besetting or following and whether or notaccomplished by trespass;(b) listening to or recording of a conversation in which a personparticipates, or listening to or recording of messages to or from that personpassing by means of telecommunications, otherwise than as a lawful partythereto;(c) use of the name or likeness or voice of a person for the purposes ofadvertising or promoting the sale of, or any other trading in, any property orservices, or for any other purposes of gain to the user if, in the course of theuse, the person is identified or identifiable and the user intended to exploitthe name or likeness or voice of that person; or

(d) use of letters, diaries or other personal documents of a person;without the consent, expressed or implied, of the person or some other person whohas the lawful authority to give the consent is prima facie evidence of a violation ofthe privacy of the person first mentioned.. . .6(1) The nature and degree of privacy to which a person is entitled in anysituation or in relation to any situation or matter is that which is reasonable in thecircumstances, due regard being given to the lawful interests of others.(2) Without limiting the generality of subsection (1) in determining whetherany act, conduct or publication constitutes a violation of the privacy of a person,regard shall be given to:(a) the nature, incidence and occasion of the act, conduct or publication;(b) the effect of the act, conduct or publication on the health and welfare,or the social, business or financial position, of the person or his family orrelatives;(c) any relationship whether domestic or otherwise between the partiesto the action; and(d) the conduct of the person and of the defendant both before and after theact, conduct or publication, including any apology or offer or amends madeby the defendant.Page 262011 SKCA 34 (CanLII)[51] It is my view that the plaintiff has failed to allege facts sufficient toestablish a breach of privacy within the meaning of the Act. Paragraph 7 of thestatement of claim, quoted above, states only that the defendant Bigstoneaccessed information about the plaintiff that was stored in the computers ofSask Power. Despite a demand for particulars, no particulars of the nature ofthe information accessed or the circumstances of its being stored in the SaskPower computers is alleged, nor have any particulars been offered in theensuing litigation. From the context provided by paragraphs 4 and 5 of thestatement of claim, one may reasonably infer that the information alleged tohave been accessed by Ms Bigstone was billing information relating to the

Page 27Mary St. Pierre house, in a period of time after the plaintiff had purported topurchase the house from Mary St. Pierre. However, the plaintiff does notallege that he was the occupant of the house at the time, that the billing relatedto his personal consumption of power, that it related to his liability to pay forthat consumption, or that the information accessed was in any other waypersonal or private.[52] It is quite clear, in my view, that the meager facts alleged by the plaintiffcannot bring the claim within the “examples” of violation of privacy set outin s. 3 of the Act. The plaintiff does not allege anything other than that thedefendant Bigstone obtained information concerning him. This does not fallwithin “auditory or visual surveillance of a person” (s. 3(a)), “listening to orrecording of a conversation in which a person participates” (s. 3(b)), “use ofthe name or likeness or voice of a person” (s. 3(c)), or “use of letters, diariesor other personal documents of a person” (s. 3(d)).2011 SKCA 34 (CanLII)[53] While these examples of violation of privacy are not intended to beexhaustive, the only other way violation of privacy can be established underthe Act is pursuant to s. 6. This provision requires the plaintiff to establishsome entitlement to privacy in relation to the acts of the defendant complainedof, bearing in mind the considerations set out in that section. While it clearlyis not possible to set out all circumstances that might entitle a person to somedegree of privacy, it is possible to be certain that no one is entitled to privacyin relation to any and all information relating to himself or herself.

Page 28[54] Accordingly, in my view, merely establishing that the defendant has“accessed” some information, in some sense relating to oneself, is clearly notsufficient to establish a violation of privacy within the meaning of the Act.[55] I agree that the Charter cases defining “reasonable expectation ofprivacy” for the purpose of determining the scope of the protection offered bys. 8 of the Charter may not apply to all examples of violation of privacy withinthe meaning of the Act. However, s. 6 of the Act does require a determinationof “the nature and degree of privacy to which a person is entitled”, a closelyrelated, if not identical, concept. Where purely informational privacy isconcerned, not involving the activities identified in s. 3 of the Act, this wouldseem to me to require, at a minimum, that the information in question bepersonal and confidential. It is difficult to imagine circumstances in which aperson might be held to have violated the privacy of an individual by merely“accessing” or finding out information that does not meet this test. In theinstant case, if, for example, (as in fact has been admitted by Ms Bigstone andis assumed to be true by the respondent in his argument on this appeal), whatMs Bigstone accessed was billing information indicating that the Mary St.Pierre house had been rented to third party tenants, the appellant would,absent special circumstances about which one can only speculate, have noentitlement to privacy in relation to that information (although the tenants, ofcourse, might). I would add that I do not understand the suggestion that it isnot necessary to plead that the information accessed was confidential althoughthat fact might be highly relevant at trial. If it is material, it must be pled.2011 SKCA 34 (CanLII)

Page 29[56] I cannot agree with the wide ambit my colleagues would give to ThePrivacy Act, and, in particular, to the concept of informational privacyestablished and protected by that statute. This interpretation of the Act appearsto be based on an interpretation of s. 3 of the Act to the effect that that sectionnot only makes actionable, potentially, the conduct specifically and narrowlydescribed in that section, but also expands the notion of “the nature and degreeof privacy to which a person is entitled” for the purpose of s. 6 of the Act,making a person entitled to privacy in relation to all the information that mightbe gleaned from such activities, no matter how it is obtained. Thus, forexample, the assumption seems to be that because “surveillance” of a personis made potentially actionable by s. 3(a), and it is a person’s activities that arediscoverable by means of surveillance, a person therefore has a legislativelyprotected privy interest in any information about his activities, howeverobtained and that any investigation or inquiry into a person’s conduct istherefore potentially actionable (i.e., absent consent, lawful excuse, etc.).2011 SKCA 34 (CanLII)[57] I do not agree that such an extraordinary expansion of the notion oflegally protected privacy interest is the purpose or intent of this section, or ofthe Act in general. It is not the intention of the Act to make merelyinvestigating, seeking to find out, accessing, or gathering information abouta person an actionable violation of that person’s privacy, in the absence of theconduct described in s. 3, or other unusual circumstances. Certainly s. 3 is notitself this broad. Such an interpretation would subject all authors of anunauthorized biography to liability.

Page 30[58] Finally, I do not agree that it is sufficient to plead an act or actions thatare claimed to violate privacy. The actions complained of must be pled withsufficient particularity that it is possible to determine, as a matter of law,whether they constitute or reasonably could constitute a violation of privacywithin the meaning of the Act. It is not enough that the plaintiff claim thatthey do. This is to plead a conclusion of law without pleading the supportingfacts, contrary to this Court’s decision in Ducharme, supra and otherauthorities cited.2011 SKCA 34 (CanLII)[59] Another way of saying this is that determining whether the pleadingsdisclose a reasonable cause of action within the meaning of Rule 173(a) onemust examine both the implicit legal conclusions (whether the cause of actionrelied upon is one known to law) and the material facts pled (whether thesewould, if proven, establish the legal cause of action relied upon). In the instantcase, the facts as pled are entirely consistent with there being no liabilityunder The Privacy Act. This is because whether a cause of action arises inrelation to Ms Bigstone’s access to computer records depends entirely on thenature and source of the information she accessed. If, as appears entirelyplausible in the context of this case, the information accessed by Ms Bigstonesimply showed that utilities consumed in the Mary Bigstone house were beingbilled to a party other than Mr. St. Pierre, then, while this is, in a negativesense, information about Mr. St. Pierre, this clearly would not be informationin which Mr. St. Pierre has a privacy interest.

Page 31[60] Where the issue is whether the plaintiff has pled sufficient material factsto support a cause of action, it is, with respect, irrelevant that the defendantknows the true facts of the matter. The facts known to the defendant may wellbe such as to make it entirely clear that no liability can arise. The point of anapplication pursuant to Rule 173(a) is not to obtain information. It is to avoidbeing put to the trouble and expense of defending a claim that has no possiblemerit.2011 SKCA 34 (CanLII)[61] In my view, ignoring the requirement to plead sufficient facts to supportthe cause of action relied upon, on the basis that we do not know whatevidence may be called at trial, and it is therefore not “plain and obvious thatthe claim cannot succeed” significantly undermines the importance of Rule173(a) with significant implications for the broader jurisprudence. Manyrecent cases in this Province, for example, involving certification of classactions, have foundered on the requirement to plead sufficient material facts.(See, for example, Hoffman v. Monsanto Canada Inc., 2007 SKCA 47, 283D.L.R. (4th) 190 and Wuttunee v. Merck Frosst Canada Ltd., 2009 SKCA 43,[2009] 5 W.W.R. 228). On this view of the law, it would be sufficient to pleadthat a specific tort was committed, “on facts known only to the defendant andto be proven at trial.”[62] The fact that the existence of a cause of action is highly fact specificdoes not relieve a plaintiff from the obligation to plead the material facts uponwhich he or she relies. It enhances that obligation. Otherwise there would beno basis for determining whether the claim discloses a claim that would merit

Page 32a trial. By the same token, the purpose of the “plain and obvious” test forstriking a statement of claim pursuant to Rule 173(a) is not to encourage orprotect pleadings that are so vague or devoid of factual pleadings that it isimpossible to determine whether, if proven, they would establish a legal causeof action. The only uncertainty in the instant case is that we do not know thenature and source of the information the plaintiff alleges was accessed byMs Bigstone.2011 SKCA 34 (CanLII)[63] In addition, where, as in the instant case, the facts of a claim are clearlynot complex, and very little evidence could possibly be relevant, it is notappropriate, in my view, for this Court to duck the question of whether, in law,the facts pled do or could support a cause of action on the basis that the legalissue is novel and difficult. This approach defeats the goal of judicialefficiency and vastly increases the costs to litigants.[64] In this case it is conceded that the nature of the information alleged tohave been acquired by the defendant Bigstone is not pled. The statement ofclaim does not allege that the plaintiff was the source of the information orthat it was provided in confidence. None of the facts set out in s. 3 of the Actas prima facie evidence of a violation of privacy is alleged. No othercircumstances are pled that would or could establish that the plaintiff wasentitled to privacy in relation to the information in question. The mere factthat the information in some way concerned the plaintiff is clearly notsufficient to establish this. In short, the respondent failed to plead facts

Page 33sufficient, if proven to be true, to establish the tort of violation of privacy thathe alleges.2011 SKCA 34 (CanLII)

Page 34[65] I would allow the appeal and strike the statement of claim on the groundthat it discloses no reasonable cause of action.DATED at the City of Regina, in the Province of Saskatchewan,this 15th day of March, A.D. 2011.2011 SKCA 34 (CanLII)“SMITH J.A.”SMITH J.A.

QUEEN’S BENCH FOR SASKATCHEWANDate: 2008 09 04Docket: Q.B. 31/06Judicial Centre: YorktonBETWEEN:Citation: 2008 SKQB 350PATRICIA BIGSTONE (Litigation Guardian for MARY ST. PIERRE)2008 SKQB 350 (CanLII)GARNET ST. PIERRE- and -PLAINTIFFDEFENDANT- and -PATRICIA BIGSTONE, FRANK ST. PIERRE AND GERALDST. PIERRETHIRD PARTIESCounsel:Randall M. Sandbeckfor the plaintiffW. Timothy Stodalka for the defendantRandall M. Sandbeckfor the third partiesJUDGMENT PRITCHARD J.September 4, 2008[1] These proceedings are brought by Patricia Bigstone as litigationguardian for her grandmother, Mary St. Pierre. Mary is currently 98 years of ageand is now suffering from advanced dementia. Although her interests are central

to this litigation, she is unaware that it is taking place. This could be considered ablessing.FACTS[2] From all accounts, Mary St. Pierre has led a difficult life withremarkable pride and tenacity. Well into her early 90's, she was still a physicallylarge and strong woman living in her own home. She was also fortunate to havemaintained much of her mental capacity into her early 90's. As a child, Marystarted to go to school but was removed after two weeks because she was Metis.Her granddaughter testified that it was her understanding that when hergrandmother was a child, Metis children were not allowed to attend school.Mary’s first language was Michif. It was the language used in her home as a childand as an adult. She has never been able to read or write English although shedid attend school for six months as an adult where she learned to write her ownname and recognize the letters of the alphabet and many words.2008 SKQB 350 (CanLII)[3] Mary worked hard all of her adult life. In her early married life, she andher husband supported their family primarily by living off of the land She raisedeight children and when they were older, she also variously worked as aseamstress, housekeeper, cook and nurse’s aid. Her family describe her as “oneof the best cooks” and one who always loved to cook for others. She also loveddancing, telling stories, visiting and playing bingo and cards. Around 1980, Maryand her husband moved from Moose Jaw back to Yorkton where she had grownup. They bought a home at 170 Darlington Street. They were extremely proud ofthis home as it was the nicest they had ever had. Sadly, Mary’s husband died justtwo years later.

- 3 -[4] Mary’s second youngest son, Frank, has lived at home all of his life.As an adult, Frank was employed full-time as a janitor with the ProvincialGovernment. He retired about five years ago. Frank continued to live with hismother after his dad died. Frank testified that his brother Gerald moved into thehouse around 2000 to help him care for their mother. Gerald testified that around1993, Frank asked him to come live at the house to help take care of theirmother. Gerald says he agreed to the request and moved in at that time. He tookthe opportunity to go back to school to earn his grade 12 and then obtainedemployment with the Eastern Assiniboine Metis Organization. According toGerald, when he first moved in with Frank and their mother, Mary was still doingall of the shopping. Over the years, she started sending him, and between 1999and 2000 he gradually took over that responsibility as well as most of the cookingand cleaning. Both brothers agree that around the year 2000, Gerald becameresponsible for their mother’s financial affairs and assumed control of her bankcard. According to Gerald, his mother was becoming forgetful around that time tothe extent that he felt he had to unplug the stove when he went to work. Geraldalso testified that his mother’s hygiene started to slip sometime around the year2000. This was aggravated by numerous bladder infections. He and/or hisbrother would take their mother to the home of their sister Florence in Moose Jawwho would assist with Mary’s personal care. At other times, Florence would cometo Yorkton to stay with her mother for up to a week at a time. The boys werereluctant to be involved in their mother’s personal hygiene. She needed help toget into the bath but would not allow a stranger to assist. Gerald’s recollection isthat by 2003, Mary was less and less able to care for herself or be by herself.2008 SKQB 350 (CanLII)

- 4 -According to both sons, it was becoming evident that Mary needed more carethan they could provide.[5] Throughout the years, both brothers were aware that Frank wouldinherit the house when his mother passed on. Frank acknowledged that after hisfather died, he was responsible for paying the taxes on Mary’s house and that by2003, he had let the taxes fall into significant arrears. A tax lien was filed againstthe property on January 19, 2000 and on March 18, 2003, the City of Yorktongave written notice that if the tax arrears were not paid within six months, the citywould apply for title to the property. The tax arrears at that time wereapproximately $5,100.00.2008 SKQB 350 (CanLII)[6] Frank knew of the tax arrears and eventually told Gerald about them.Regrettably, neither of them did anything about the arrears nor did they tell theirmother until just a week or so before the mid-September 2003 deadline by whichthe city would commence steps to take title. They also kept the problem a secretfrom other members of the family except their sister Florence. Frank testified thataround September 13 while in Moose Jaw for Florence to help look after Mary, hementioned the property tax problem to his sister. He asked her not to mention itto anyone else. However, that night, after he returned to Yorkton with his mother,he received a telephone call from the defendant, his nephew, Garnet St. Pierre.According to Frank, Garnet offered to pay the tax arrears. Although nothing turnson this disparity, Garnet testified that it was Gerald who told Florence about thetax arrears in early September and around the same time showed him a copy ofthe tax notice. In any event, some time in early to mid-September 2003, Frank,Garnet and Gerald came to an understanding that Gerald would obtain title to

- 5 -Mary’s house in exchange for him paying the tax arrears, doing the necessaryrepairs to the property and taking care of Mary in the house until her passing oras long as she was capable of remaining in it. A September 15, 2003 handwrittenagreement prepared by Garnet’s wife was apparently signed by Frank andGarnet on that date.[7] The agreement, such as it is, is clearly unenforceable and is of littleassistance in these proceedings. It makes no reference to Garnet paying thetaxes on 170 Darlington Street or doing repairs to the property or even to himobtaining title to it. Although unforceable, the signed paper does reflect bothparties understanding and agreement that “Garnet will make sure Mary St. Pierrewill be taken care along with funeral arrangements.” The written document issilent as to how Garnet would ensure care for Mary although all involved agree,including Florence, that the plan at the time was to have Florence move into thehouse with Mary.2008 SKQB 350 (CanLII)[8] Whatever the discussions, agreements or understandings betweenGarnet, Frank and/or Gerald, it is evident that Mary only found out about the taxarrears and pending City proceedings on September 15, 2003. Around noon onthat day, Garnet, Frank, Gerald and Garnet’s wife, Christine, were all at Mary’shouse. Earlier in the day, Garnet had been to see his lawyer, Randy Kachur, tohave a registerable land transfer document prepared. In the early afternoon, Mr.Kachur arrived at Mary’s house to have the transfer signed by her in accordancewith his client’s instructions. He was aware of Mary’s age and before having hersign, he satisfied himself that Mary understood what she was doing. In thatprocess, Mary told him that she had intended to leave the house to Frank but

- 6 -couldn’t afford to keep it because over $5,000.00 in taxes were owing, and thehouse needed lots of repairs, and the “boys” had no money. She told him thatshe wanted to keep the house in the family. She said she was going to transferthe house to Garnet because “Gerald and Frank were OK with it,” and Garnetwould pay the taxes, and do the repairs, and, she could still live there as long asshe wanted to. After listening to Mary, Mr. Kachur asked her if she would like alease or form “M” mortgage to protect her interests. According to Mr. Kachur, shechuckled and declined, saying that she trusted Garnet and was not worried.2008 SKQB 350 (CanLII)[9] Based on the information provided by Mary, Mr. Kachur determinedthat the transfer was more like a gift than a sale and decided it would be prudentto draw up a short document to reflect the transferor’s understanding. Heprepared a one page Acknowledgment at the kitchen table for Mary to sign. Heread the document over to her and then gave it to her to review. He told her totake whatever time she needed. And, because Frank and Gerald were living inthe house and the transfer might affect them, he asked them to sign theAcknowledgment as witnesses. The Acknowledgment states:I, MARY ST. PIERRE, acknowledge as follows:1. That I live at 170 Darlington St. E. in Yorkton, Sk.2. That I own this house and land.3. That I owe to the City of Yorkton about $5100. in taxes on thisproperty.4. That I am transferring this property to my grandson, GARNETST. PIERRE, of Wolseley, Sk.

- 7 -5. That I will continue to live in the house as long as I am able to doso.6. That I do not require a lease or any other written assurance fromGarnet St. Pierre in this regard.7. That I full understand what I am doing.[10] Mr. Kachur testified that Garnet St. Pierre was his client. He gave noadvice to Mary and had no private discussions with her. Although he satisfiedhimself that Mary understood what she was signing, he did not suggest that shemight want to obtain independent legal advice. He also testified that he did nothave Garnet sign the Acknowledgment because “I wasn’t there to broker a deal.”Mr. Kachur further testified that from his perspective, paragraph 5 of theAcknowledgement reflects “Mary’s belief that Garnet would allow her to live in thehouse as long as she wanted to.” Although not in his notes, he recalls that Marywas not happy about losing her house to taxes and was not happy that her sonshad not paid the bills. He also indicated that he gave Mary no information abouthow a house can be lost for non payment of taxes nor did he give her any adviceas to what other options might be available for her to retain the house. On crossexamination,Mr. Kachur agreed that Mary St. Pierre was in a vulnerable positionin September 2003. According to Mr. Kachur, Mary was vulnerable because “shehad a tax notice with arrears she could not pay and she was 93 and concernedabout losing her house.”2008 SKQB 350 (CanLII)[11] After the transfer was signed, Garnet attended to payment of thetaxes. Within days, Garnet had talked his grandmother into leaving the house andmoving temporarily to Moose Jaw with Florence so he could do the necessaryrepair work. Garnet himself testified that Mary was “adamant about not going” but

- 8 -after he assured her that “it was just while he fixed up the place” she agreed.Garnet and his wife drove Mary to Moose Jaw. Florence testified that at first, hermother was doing quite well in Moose Jaw although she cried a lot because sheknew she had lost the house. In November, Mary complained about wanting togo home but Flo told her “this was her home.” By December, Mary became moreagitated and kept trying to leave. She wanted to go home. By January, she wasnot eating well. She also began staying up all night singing and talking. BothFlorence and Mary were becoming exhausted. Florence needed rest and knewMary needed medical attention but wanted her to go to her own doctor. In lateFebruary 2004, Flo called Garnet and asked him to take Mary to the hospital inYorkton. Garnet arrived the following day and took Mary to the Yorkton hospital.She was immediately admitted and he returned to Wolseley. Garnet has not seenhis grandmother since.2008 SKQB 350 (CanLII)[12] In the meantime, back in Yorkton, Garnet had evicted Frank andGerald by the first week of October 2003. Around the third week of October hehad placed an advertisement in the newspaper for a house available for rent.When Frank and Gerald left the house, they emptied out everything of valueexcept the fridge, stove and dishwasher and Mary’s bed, dresser, chair andsewing machine. Garnet worked throughout October to complete the necessaryrepairs to the house. He emptied out all of the remaining furniture and had thehouse rented by the first week in November 2003. By December 2003, Garnethad placed a conventional mortgage on the house for $45,000.00 based upon ahouse value of $60,000.00. After repayment of the loan he had taken out to pay

- 9 -the tax arrears, the mortgage netted him approximately $38,000.00 cash that wasdeposited into his bank account.[13] There was a total breakdown in family communication regardingMary’s February 25, 2004 hospital admission. Garnet apparently thought thatFlorence had telephoned her sister, Lucy, in Yorkton to tell her that Mary wasbeing driven to the Yorkton hospital. Although Lucy did not meet Garnet at thehospital, he did not check to determine if Florence had reached her. He simplyleft Yorkton and returned to Wolseley. Mary was left alone in the hospital with nofamily. While another of Mary’s sons, Edwin, was visiting someone else in thehospital, he was told his mother was there and he immediately went to see her.He was devastated that she had been there for two days without the familyknowing. Once Mary’s family in Yorkton found out that she was in the hospital,they took immediate steps to ensure she had regular visitors. They also made allof the commitments that were necessary to allow her to be discharged. Onadmission, Mary had been diagnosed as suffering “senile confusion with someaggressive episodes and a history of severe hypertension.” She was alsosuffering from a bladder infection. Under the heading “One Diagnosis MostResponsible For Hospital Stay” the hospital discharge summary indicates: Marywas brought by her grandson Garnet because “she had been living with adaughter who is having a nervous breakdown and apparently was not able tolook after her any more.” Mary was discharged under the care of PatriciaBigstone on March 11, 2004 who was subsequently appointed as her personaland property guardian on August 6, 2004. Shortly following her discharge, Marywent to live with her great-granddaughter, Michelle Kennedy and family. At that2008 SKQB 350 (CanLII)

- 10 -time, Michelle’s children were 14, 10 and 7 years of age. Although she could notleave Mary alone with the children, Michelle testified that her great-grandmotherinteracted well with them. She hugged them and listened to them. She wasalways cheerful, she made her own bed, cleaned her own room and foldedclothes. For almost a year, Mary was part of Michelle’s family. She even wentcamping with the family and to the mountains. Mary was regularly assessed whileliving with Michelle. On the fourth assessment, it was determined that Maryshould take an available bed in the Melville care home with a plan that she wouldthen be transferred to a care facility in Yorkton where most of her family lived. OnJanuary 4, 2005, Mary moved to Sunrise Nursing Home in Yorkton where shecontinues to reside. Her granddaughter, Nicole, lives just across the street andalso works there. Nicole is able to see Mary daily while at work.2008 SKQB 350 (CanLII)ISSUES[14]1. Did Mary have capacity to transfer the house to Garnet?2. If so, can the transfer be set aside on the basis of undue influence orunconscionability?3. If not, can the transfer be set aside on the basis of a failure ofconsideration; namely Garnet’s failure to allow Mary to continue livingin the home?4. If the house transfer is set aside, what compensation, if any, ispayable to Garnet?Legal Capacity

- 11 -[15] Based on the totality of the evidence, I am satisfied that when Marytransferred her house to Garnet she understood the purpose and effect of thedocuments she signed. I accept the evidence of Mr. Kachur that he only hadMary sign the transfer after he was personally satisfied that she was fullycognizant of what she was doing. It is evident that on September 15, 2003 Maryknew that the taxes were in arrears, that her house needed some major repairwork and that her two sons that occupied the home with her had no money foreither of these pressing obligations. It is also clear that at that time, everyone whowas involved knew that Mary’s number one concern was being able to live in thehouse. They also knew that she understood and trusted that by transferring thehouse to Garnet, the taxes would be paid, the repairs would be made and shecould continue living there. Mary told Mr. Kachur that she was happy that thehouse would stay in the family.2008 SKQB 350 (CanLII)[16] The plaintiff argues that the medical evidence indicates that Mary hadbeen suffering from symptoms of a progressive mental disease for a number ofyears prior to September 2003. In particular, she points to medical records ofMary’s hospital stay in December 2002 in which there is reference to “senileconfusion.” However, Dr. Daunt testified that when Mary was seen in theemergency department on November 15, 2002 following a dizzy spell while in thebank and again on November 22, 2002 for a sore shoulder, the charts have nomention of senile confusion or of any mental issues at all. He testified that thereference to senile confusion on the December 7, 2002 hospital record must belooked at within the context of her entire condition at the time. According to thedoctor, she was a very sick person at that time. She was suffering frombronchitis, had a urinary tract infection and most seriously, had blood poisoning

- 12 -which can be life threatening. He was aware that during her December hospitaladmission Mary wanted to leave the hospital to go home and that at times shewas agitated and confused, but he noted that these symptoms may have beenexasperated by her physical condition. He said that as a physician, he is alwaysjudging whether mental confusion in the elderly is temporary or permanent assometimes “a severe medical condition can throw them, and they can improveremarkably.” Dr. Daunt’s first reference to mental deterioration was when he sawMary in the emergency department April 2003 for a urine infection and also noted“very early senility.” He indicated that if there had been anything more significant,he would have recorded more details. Mary was seen again on June 4, 2003 andon August 15, 2003 again, with no issues regarding her mental faculties.2008 SKQB 350 (CanLII)[17] Mary was 93 years of age when she signed the transfer to Garnet.Although she had suffered episodes of mental confusion in the recent past andwas living with “early senility”, there is no evidence that she was mentallyincompetent at the time she signed the transfer and Acknowledgement. To thecontrary, Mary was functioning reasonably well in all the circumstances. Althoughshe was clearly upset about the tax arrears, she knew that she was transferringher house to her grandson which she did freely on the promise that she wouldstill be able to live there.Unconscionable Transaction or Undue Influence[18] The relationship between undue influence and unconscionability isexplained by the British Columbia Court of Appeal in Morrison v. Coast Finance

- 13 -Ltd. and Vancouver Associated Car Markets Ltd. (1966), 54 W.W.R. 257 (BCCA)at page 259 as follows:A plea of undue influence attacks the sufficiency of consent; a pleathat a bargain is unconscionable invokes relief against an unfairadvantage gained by a unconscientious use of power by a strongerparty against a weaker.[19] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Madam JusticeWilson stated at paragraph 23:2008 SKQB 350 (CanLII)23 The equitable doctrine of undue influence was developed, aswas pointed out by Lindley L.J. in Allcard v. Skinner (1887), 36 Ch.D. 145, not to save people from the consequences of their own follybut to save them from being victimized by other people (at pp. 182-83). In the context of gifts and other transactions, equity willintervene and set aside such arrangements if procured by undueinfluence. [Emphasis added][20] And further, at paragraph 42:42 What then must a plaintiff establish in order to trigger apresumption of undue influence? In my view, the inquiry shouldbegin with an examination of the relationship between the parties.The first question to be addressed in all cases is whether thepotential for domination inheres in the nature of the relationship itself.This test embraces those relationships which equity has alreadyrecognized as giving rise to the presumption, such as solicitor andclient, parent and child, and guardian and ward, as well as otherrelationships of dependency which defy easy categorization.43 Having established the requisite type of relationship to supportthe presumption, the next phase of the inquiry involves anexamination of the nature of the transaction. When dealing withcommercial transactions,...The mere fact,...that the plaintiff seems tobe giving more than he is getting is insufficient to trigger thepresumption.

- 14 -44 By way of contrast, in situations where consideration is not anissue, e.g., gifts and bequests, it seems to me quite inappropriate toput a plaintiff to the proof of undue disadvantage or benefit in theresult. In these situations the concern of the court is that such acts ofbeneficence not be tainted. It is enough, therefore, to establish thepresence of a dominant relationship.45 Once the plaintiff has established that the circumstances aresuch as to trigger the application of the presumption, i.e., that apartfrom the details of the particular impugned transaction the nature ofthe relationship between the plaintiff and defendant was such thatthe potential for influence existed, the onus moves to the defendantto rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra,at p. 938, the plaintiff must be shown to have entered into thetransaction as a result of his own “full, free and informed thought.”Substantively, this may entail a showing that no actual influence wasdeployed in the particular transaction, that the plaintiff hadindependent advice, and so on. Additionally, I agree with thoseauthors who suggest that the magnitude of the disadvantage orbenefit is cogent evidence going to the issue of whether influencewas exercised. [Emphasis added]2008 SKQB 350 (CanLII)[21] Garnet maintains that the relationship of grandson and grandmotherdoes not give rise to a presumption of undue influence and that the onus istherefore on the plaintiff to establish it. That may be, but on the facts of this case,I am satisfied that given Mary’s age, the frightening circumstances her sons hadplaced her in and the trusting relationship she had with Garnet, that he was in aposition to exert influence over her.[22] Garnet was more like a son than grandson to Mary. Garnet’s mother,Laura St. Pierre, was Mary’s daughter. Laura died in 1982. Garnet testified thatMary raised him in Yorkton until he was in grade two or three. He then spent afew years in Melville and afterwards, went back to live with Mary in Yorkton. Hemoved to Moose Jaw when Mary and her husband did. As indicated by Mr.Kachur, Mary openly stated her trust of Garnet and laughed at the idea that she

- 15 -might want documents prepared to legally protect her right to live in the houseafter she transferred ownership of it to Garnet.[23] I find that Garnet’s actions demonstrate that his primary concern wasobtaining title to his grandmother’s house. He acknowledged that at no time didhe offer to loan money to his grandmother or anyone else so her taxes could bepaid. Nor did he offer to buy the house. He made no inquiry into her finances todetermine whether she had sufficient income, with proper management, to paythe outstanding taxes herself by way of small monthly instalments. He neverreally even discussed the issue directly with her. The first time he talked to hisgrandmother about the predicament that two of her sons had placed her in wasthe day he had his lawyer come to her house so she could sign a transfer in hisfavour. Even then, he did not sit down and specifically go over everything withher. According to his own testimony, all he did was ask her how she was doingand “if she knew what was going on” to which she apparently replied that “Geraldhad explained what was going on.” At that time, Mary’s daughter, Lucy, and herson, Edwin, both lived in Yorkton and another son, Lawrence, lived nearby inSpringside but none of them were approached by Garnet to assist with Mary’staxes nor were any of them consulted or told that Garnet would be taking title toher home in exchange for paying the taxes. The deal was done as quickly andquietly as possible, as if to avoid anyone sabotaging it. Indeed, the magnitude ofGarnet’s benefit is “cogent evidence” that he exercised undue influence. AlthoughGarnet did not overtly force Mary to sign the house transfer in his favour, heclearly took advantage of her extremely vulnerable situation. He gained afinancial windfall to Mary’s detriment. Mary may have signed the transfer with fullknowledge of what she was doing, but no one told her there might be other2008 SKQB 350 (CanLII)

- 16 -options that could still secure her overriding desire to continue living in her ownhome without resulting in her also losing title to it.[24] Garnet argues that if anyone unduly influenced Mary, he was not theone. He makes much of the fact that his discussions and negotiations were neverwith his grandmother but only with his uncles, Frank and Gerald. In effect, hesuggests that if anyone took advantage of or exercised undue influence overMary it was Frank and/or Gerald. There may be some general truth to thisallegation, but it ignores Garnet’s active participation in this transaction. Thereality is that Garnet not only exercised undue influence when dealing with hisgrandmother, but he also took advantage of his uncles Frank and Gerald. In thelate summer of 2003, Gerald, Frank and Mary were all at risk of losing theirhome, although Mary was unaware of her perilous situation until September 15.For a number of years, Frank had failed to pay the taxes on the house they wereall living in and their ability to retain the house was now in jeopardy. NeitherFrank nor Gerald had the necessary funds to clear the tax lien and yet they wereboth frozen in inaction. Mary had her own monthly pension income but it wascontrolled by Gerald. Clearly, she was the one that was most affected by hersons’ financial mismanagement, but they were evidently too embarrassed to tellher until the very last moment. At some point, Frank had gone to city hall andlearned that the tax arrears could be paid over time with a payment plan but henever pursued it. Although the evidence is contradictory, it seems that Frank mayalso have shared the tax problem with his brother Edwin who lived in Yorkton atthe time. Edwin had worked for the federal government in the department ofVeteran Affairs in Saskatoon for 12 and one-half years but retired to Yorkton in2001. When he returned to Yorkton, Edwin saw Mary two to three times per week2008 SKQB 350 (CanLII)

- 17 -including most Sundays. Edwin testified that he could have paid the taxes butFrank did not get back to him about it. It appears that Frank saw the arrangementwith Garnet as a solution to both the disastrous financial mess he had placedhimself, his mother and his brother Gerald and to the brothers’ increasing inabilityto properly care for their mother. He apparently believed these problems were soimpossible to solve in any other way that he was prepared to give up hisinheritance to deal with them. Frank was in such difficult financial circumstancesat the time that he even had to negotiate a further payment from Garnet of$2,500.00 to assist him in moving out of the Darlington Street residence and topay the first month’s rent and security deposit on an apartment. From oneperspective, Frank gave up a long standing entitlement to ultimately receive a$40,000.00 house in exchange for payment of $5,100.00 in tax arrears and$2,5000.00 cash. From that perspective, he struck a very poor bargain. On theother hand, Frank testified that his major concern was his mother’s welfare andthat he made the deal with Garnet because Garnet agreed to assumeresponsibility for Mary’s care and ensure that she could remain in the house.Frank always knew that Garnet was not going to care for Mary himself. Frank’sunderstanding was that Florence would move into the house to care for theirmother. Gerald had the same understanding and was also prepared to move forthis to be accomplished.2008 SKQB 350 (CanLII)[25] Frank and Gerald were both suffering the indignity of mismanagingtheir own finances as well as those of their mother. Garnet would have had tohave been wilfully blind not to have known that his uncles were desperate andthat was why he was getting such an extraordinary financial windfall. This wasnot an arrangement whereby Garnet would terminate his employment as a

- 18 -welder and move from Wolseley to live in the house and care for hisgrandmother. He was in no better position to personally care for his grandmotherthan his uncles were. Frank and Gerald made it clear that they needed someoneto look after Mary permanently and Garnet promised them, as he acknowledgedin examination-in-chief, that “I’ll make sure Cookie [Florence] will take care of her”and again, on cross-examination, that he had “made arrangements for Aunt Floto take care of her at the house.” For payment of approximately $5,100.00,Garnet was getting Mary’s house; his uncle Frank was giving up the right toinherit Mary’s house; his Uncle Gerald was moving out of Mary’s house where hehad lived in for some 10 years; and his Aunt Florence was getting theresponsibility of caring for Mary in the house.2008 SKQB 350 (CanLII)[26] Frank and Gerald may have mismanaged their mother’s finances, butI find that Garnet was the one who took advantage of the vulnerable position thatMary’s son had placed her in. The court is therefore prepared to intervene andset aside the unconscionable house transfer obtained through Garnet’s exerciseof undue influence over his grandmother.Failure of Consideration[27] Even if the house transfer could not be set aside on the basis ofundue influence and/or unconscionability, I would find that there was a materialfailure of consideration sufficient to allow the plaintiff to rescind the transfer.Garnet acknowledged that as part of the transaction whereby he obtained title tothe house, he promised to keep his grandmother in the home for “as long as shewas able to reside there.” Garnet says that he did not renege on this promise. He

- 19 -maintains that by October 2003 his grandmother had too many physical problemsto return to the house. He testified that Florence told him that Mary was fallingand had mobility problems and that she could not bring Mary back to Yorkton.Florence also told him that Mary was crying a lot and upset “because the boyshad lost the house.” He says he spoke to Mary while she was in Moose Jaw andtold her that she had to get better before she could return to Yorkton. Accordingto Garnet “Since the house was sold, she went straight downhill.”2008 SKQB 350 (CanLII)[28] There is no doubt but that Mary’s condition deteriorated after she wasessentially tricked into going to Moose Jaw on the promise that it was just untilthe repairs to the house were done. Even Dr. Daunt testified that her conditiondeteriorated after she moved out of her home to live with her daughter. However,the evidence falls far short of establishing that Mary could not have remainedliving in her house if she had someone like Florence assisting her. There can beno dispute but that on September 15, 2003 and for a considerable time prior tothat, the most important thing to Mary was that she live out her remaining days inher own home. This was nothing new. The records indicate that in December2002, she was discharged from the hospital earlier than normal as she wasadamant about going home. Similarly, family members testified that in the fewyears preceding 2003 they found it best to visit her at her house as she was moreand more reluctant to go out. The medical records also show that in 2002 shecomplained that she had incontinence when she left the house and had to wear adiaper. This undoubtedly contributed to her desire to remain at home, along withsimple aging. In any event, Mary was willing to transfer ownership to her home aslong as she could still live there. Her son Frank was also prepared to move andgive up his inheritance so long as his mother could still live there. Gerald was

- 20 -likewise willing to move provided that his mother did not have to. And Florencewanted to care for her mother but simply could not do so in Yorkton. I amsatisfied that Florence had originally agreed to move into the house in Yorktonand take care of Mary. At trial she acknowledged that she had told Gerald this butafter she brought her mother to Moose Jaw in late September 2003, for what wassupposed to be a temporary visit, her husband made it clear that he did not wantto go to Yorkton. Florence then realized it would break up her marriage if shemoved to Yorkton to care for her mother. It is also evident that when Garnetbecame aware that Florence was not in a position to move to Yorkton, he madeno effort to find anyone else to care for his grandmother so that she could returnto the home as he had promised.2008 SKQB 350 (CanLII)[29] I find that Garnet had no intent, or at least made no effort, to keep hispromise to allow his grandmother to reside in the house that she transferred tohim on September 15, 2003 on that very understanding. By mid to late October2003, Gerald had removed all of Mary’s furniture from the house and hadadvertised it for rent. By the first week of November 2003, the house wasoccupied by tenants even though, according to Garnet, the repair work he hadundertaken was not entirely complete. Such swift action in renting the house to atotal stranger belies any intention, plan or hope for Mary to return. Garnet, liketwo of his uncles before him, had totally let Mary down. The Frustrated ContractsAct, S.S. 1994, c. F-22.2 relied upon by Garnet has no application in thesecircumstances.Should compensation be paid for Garnet’s improvements to the home?

- 21 -[30] Garnet has made significant improvements to the house. I find that thevalue of the house as at September 15, 2003 was $40,000.00 being the valuesworn to in the transfer to Garnet. Mr. Kachur testified that although Mary St.Pierre executed the affidavit of value, the $40,000.00 value was inserted on theinstructions of Garnet. In his mortgage application a few months later, Garnetvalued the house at $60,000.00. This increase is presumably the result of thesignificant repairs done by Garnet. When Garnet and his wife moved into thehouse for a year in July 2005 they did further remodelling and repairs. It isundisputed that Garnet has expended considerable time and money to improvethe house which, even according to Mary, was in need of substantial work.However, he has also received the benefit of rental income from the propertyexcept for the one year when he and his family had the alternative benefit ofactually residing in the house. Garnet seeks compensation for improvements tothe house if he is required, as the court has determined, to transfer the propertyback to Mary. However, equitable relief based on unjust enrichment or in the formof quantum meruit is not available to one who has been found to have exertedundue influence (See: Otto v. Kapacilla (Litigation Guardian of), 2007 SKCA 140).Likewise, The Improvements under Mistake of Title Act, R.S.S. 1978, c. I-1 doesnot apply in these circumstances.2008 SKQB 350 (CanLII)CONCLUSION[31] The defendant shall forthwith, and in any event in not less than 31days from the date hereof, provide the plaintiff with a registerable transfer of thesubject property in favour of Mary St. Pierre along with a mortgage statementshowing the balance owing after application of the September 1, 2008 payment

- 22 -on the mortgage he granted and is registered against the subject property. MarySt. Pierre shall be entitled to judgment against the defendant for the balanceowing under the mortgage after application of the September 1, 2008 mortgagepayment less the sum of $5,100.00 that was paid by Garnet to discharge the taxarrears in 2003. Mary shall also be entitled to all rents and profits from theproperty after September 1, 2008. The defendant shall retain the September 1,2008 rent. The third party claim is dismissed. The defendant shall pay one set ofcosts calculated under column 3. As the details of the tenancy and mortgageregistered against the subject property were not dealt with at trial, any issuesarising as a result of the foregoing may be brought back to me on seven daysnotice to the other side.2008 SKQB 350 (CanLII)J.J.L.G. PRITCHARD

CITATION: Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and TheOntario Labour Relations Board), 2011 ONSC 3057DIVISIONAL COURT FILE NO.: 373/09DATE: 20110518ONTARIOSUPERIOR COURT OF JUSTICEDIVISIONAL COURTJ. WILSON, SWINTON AND LOW JJ.BETWEEN: ))BLUE MOUNTAIN RESORTS LIMITED ))Applicant ))– and –))RICHARD DEN BOK, THE MINISTRY )OF LABOUR AND THE ONTARIO )LABOUR RELATIONS BOARD, ))Respondents ))– and –))CONSERVATION ONTARIO))Intervenor ))John Olah, for the applicantDavid McCaskill and Kikee Malik, for theRespondents Richard Den Bok and theMinistry of LabourLeonard Marvy, for the Respondent OntarioLabour Relations BoardKrista Stout, for the Intervenor,Conservation Ontario)) HEARD at Toronto: April 20, 20112011 ONSC 3057 (CanLII)LOW J.[1] The applicant operates a resort comprising ski runs, an inn and other recreationalfacilities. The property covers some 750 acres. The business employs about 1,750 workers inpeak season. It seeks judicial review of a decision of the Ontario Labour Relations Board (“theBoard”) dated March 23, 2009 which upheld, on appeal, an order of the respondent Richard DenBok in his capacity as an inspector under the Occupational Health and Safety Act, 1990, R.S.O.c. O.1, as amended (“the Act”).

Page: 2[2] The order related to an occurrence at the applicant’s premises in which a guest drownedon December 24, 2007, in the unsupervised swimming pool at the resort. The order was madepursuant to s. 51(1) of the Act and arose out of a field visit to the applicant’s premises onMarch 27, 2008.[3] Subsection 51(1) of the Act provides:51. (1) Where a person is killed or critically injured from any cause at aworkplace, the constructor, if any, and the employer shall notify an inspector, andthe committee, health and safety representative and trade union, if any,immediately of the occurrence by telephone or other direct means and theemployer shall, within forty-eight hours after the occurrence, send to a Director awritten report of the circumstances of the occurrence containing such informationand particulars as the regulations prescribe.2011 ONSC 3057 (CanLII)[4] The inspector concluded that a “person” included a guest, and that a “workplace”included an unsupervised swimming pool. The inspector’s order was as follows (at para. 3):Where a person is killed or critically injured from any cause at a workplace, theconstructor, if any, and the employer shall notify an inspector, and the committee,health and safety representative and trade union, if any, immediately of theoccurrence by telephone, telegram or other direct means and the employer shall,within forty-eight hours after the occurrence, send to a director a written report ofthe circumstances of the occurrence containing such information and particularsas the regulations prescribe. THE EMPLOYER FAILED TO NOTIFY ANINSPECTOR OF THE FATAL INJURY TO A PERSON WHICH OCCURREDAT THE BLUE MOUNTAIN INN ON DECEMBER 24, 2007. COMPLYFORTHWITH.[5] The applicant believed initially that the guest had suffered a heart attack but itsubsequently learned that the guest had drowned. The applicant did not notify an inspector of theoccurrence pursuant to s. 51(1) of the Act and did not send to the Director a written report of thecircumstances of the occurrence. It was of the view that because the person who drowned wasnot a worker, the provisions of s. 51(1) of the Act did not apply.[6] The Board upheld the inspector’s order.[7] The two issues before the Board in deciding the applicant’s appeal were whether theword “person” in s. 51(1) means “worker” and whether the unsupervised swimming pool inwhich the guest drowned was a “workplace” within the meaning of the Act.[8] “Person” is not defined in the Act.[9] “Workplace” is defined in s. 1 as follows:

Page: 3“workplace” means any land, premises, location or thing at, upon, in or nearwhich a worker works. (“lieu de travail”)[10] The Board considered the legislative context, the purposes of the Act as set out in R. v.Timminco Ltd., [2001] O.J. No. 1443; 54 O.R. (3d) 21 (C.A.) and Ontario (Ministry of Labour)v. Hamilton (City),[2002] O.J. No. 283; 58 O.R. (3d) 37 (C.A.) and the uses of the words“person” and “worker” in different parts of the Act. The Board concluded that the word “person”in s. 51(1) is to be construed in its ordinary meaning and not as synonymous with the word“worker”, which is defined in s. 1 of the legislation asa person who performs work or supplies services for monetary compensation butdoes not include an inmate of a correctional institution or like institution orfacility who participates inside the institution or facility in a work project orrehabilitation program.2011 ONSC 3057 (CanLII)[11] With respect to whether the guest drowned in a “workplace”, the Board found thefollowing:75. Blue Mountain is a fixed workplace. There is a fixed location to whichemployees regularly report. There is a defined area that encompasses a ski hill,buildings, parking lots, a swimming pool etc. from which Blue Mountain operatesits resort. Employees of Blue Mountain move about performing work functionswithin all or a part of this area on a daily basis. The area of the resort where theBlue Mountain employees perform their work functions is a “workplace” for thepurposes of section 51(1) of the Act. The fact that an employee is not physicallypresent within a section of that “workplace” does not mean that that particularsection is not part of the “workplace” during the period when no employees arepresent.76. I heard no evidence as to the work done by employees of Blue Mountainwithin the enclosed area of the indoor swimming pool where the guest drowned. Iheard no evidence as to how regularly employees go into this area, what they doin the area or how many employees enter this area. However, Blue Mountain didnot contest the Ministry’s assertion that Blue Mountain employees enter the poolarea and did not suggest that persons who were not Blue Mountain employeeslooked after the pool. Based on general and common knowledge I infer that atleast one and perhaps more Blue Mountain employees must enter the enclosedarea of the indoor swimming pool in order to clean the pool and check the waterat least once, and likely more times, each day. The swimming pool thus comprisesa part of at least one Blue Mountain employee’s workplace. It does not cease to bea “workplace” because the employee in question moves from that area of his orher workplace to another area of the same workplace.

Page: 477. Blue Mountain did not argue that the guest who drowned in the swimmingpool had not suffered a critical injury. Although Blue Mountain initially believedthe guest had died of natural causes, it subsequently learned that the guest haddrowned.78. For the reasons set out above, I find that the drowning of a guest in the BlueMountain swimming pool on December 24, 2007 triggered the reportingobligation under subsection 51(1) of the Act, as it involved a “person” who waskilled from any cause at a “workplace" ….[12] The standard of review on this application is one of reasonableness. The Board is anexpert tribunal exercising its powers of decision in the administration of a statute within its areaof responsibility (and see also Lennox Drum Ltd. v. Ah-Home, 2010 ONSC 4424 (Div. Ct.)).2011 ONSC 3057 (CanLII)[13] As to the Board’s construction of the word “person”, the applicant does not challenge theBoard’s determination that the word is to be given its plain, ordinary and inclusive meaning. Theintervenor, Conservation Ontario, argued that the word “person” should be construed as meaning“worker”.[14] The applicant and the intervenor raise concerns about the practical application of thereporting requirement flowing from the interpretation of the meaning of “workplace” to includeall 750 acres of the entire resort.[15] The obligation created by s. 51(1) upon employers to report when a person is killed orcritically injured is driven by result rather than by causation. Hence on a plain reading of thesubsection, any event resulting in death or critical injury, even if occurring in circumstanceshaving no potential nexus with worker safety, is reportable so long as they occur in a workplace.For purposes of triggering the reporting obligation and ensuring a sufficient reach to deal withincidents having a possibility of genesis in working conditions, the subsection as interpreted bythe Board has a potential to reach beyond the ambit of the purposes of the statute.[16] The intention to cast a very wide net to ensure that all circumstances resulting in death orcritical injury at a workplace are brought to the Ministry’s attention is apparent elsewhere in theAct. For example, s. 8(14) provides:(14) Where a person is killed or critically injured at a workplace from any cause,the health and safety representative may, subject to subsection 51(2), inspect theplace where the accident occurred and any machine, device or thing, and shallreport his or her findings in writing to a Director. [Emphasis added.][17] The applicant did not challenge in argument the Board’s construction of the word“person” as unreasonable. We are of the view that the Board’s logic in arriving at that conclusionwas transparent, intelligible and justified in light of the total context of the legislation’s purposesand the language used to implement those purposes. Nor does it lead to a result that is absurd.Conditions and hazards that result in the death or critical injury of a non-worker have the

Page: 5potential to cause similar harm to workers. The reporting obligation serves to enhance theprotection of workers by bringing hazards to the attention of the Ministry whereas an absence ofa reporting obligation would lead to a diminished oversight and potentially less worker safety.[18] The focus of this application for judicial review is the meaning of “workplace”. Themanner in which the word “workplace” is to be construed in s. 1 and s. 51(1) raises the samequestion of the extent of the Act’s reach.[19] The applicant’s position is that the construction of the word “workplace” adopted by theBoard leads to an absurd result. The Board held, at paragraph 75, that Blue Mountain is a fixedworkplace. Blue Mountain is both a place where some 1,750 individuals work at its peak seasonand a place of recreation for many thousands of holiday makers, including skiers in winter andmountain bikers at other times of the year.2011 ONSC 3057 (CanLII)[20] The applicant is concerned with the potential for serious disruption to its operations if“person” is construed in its ordinary meaning and “workplace” is defined as the whole of theresort. “Critical injuries” are defined broadly in the regulations to include the fracture of an armor leg (R.R.O. 1990, Reg. 834, s.1). Because the very nature of skiing is such that injuries, someof them critical as defined in the Act, are an expected and not-infrequent by-product of theactivity, a definition of workplace as comprising all of Blue Mountain would, it is argued, resultin serious disruption of the resort’s operations by reason of the language of s. 51(2) whichprovides:(2) Where a person is killed or is critically injured at a workplace, noperson shall, except for the purpose of,(a) saving life or relieving human suffering;(b) maintaining an essential public utility service or a public transportationsystem; or(c) preventing unnecessary damage to equipment or other property,interfere with, disturb, destroy, alter or carry away any wreckage, article or thingat the scene of or connected with the occurrence until permission so to do hasbeen given by an inspector. [Emphasis added.][21] The applicant argues that s. 51(2) requires preservation of the scene of the occurrence andthat mischief will ensue because doing so may cause perils to other users of the premises whileawaiting permission from the Ministry and because there will be significant disruption to theoperation of the recreational facility.[22] The applicant argues as well, based on the Board’s statement at paragraph 75 of thedecision, that subject to the statutory exceptions in the Act and premises covered by otherlegislation, virtually all places are “workplaces” with the result that the Ministry of Labour will

Page: 6have expanded its reach to realms of activity that are completely unrelated to worker health andsafety.[23] Accordingly, it is argued that such a result does not fall within a range of possible,acceptable outcomes which are defensible in respect of the facts and law as described inDunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para 47.[24] More specifically, the applicant argues that the Board ought to have given recognition tothe fact that the applicant’s facilities are dual use premises – they are both recreational premisesand a workplace and the use may change depending on the circumstances. A guest mayexperience a critical injury or be killed while engaged in a recreational activity on the premisesin circumstances which do not pose a risk to a worker.[25] The applicant’s position as to the proper construction of the term “workplace” is onewhich requires the physical presence of a worker at a place where a worker works at the time atwhich an occurrence with a guest or other person takes place. More specifically, in the instantcase, it is the applicant’s position that the swimming pool would have been a workplace had anemployee of the applicant been on site going about his work at the time of the guest drowning,but no employee being present and working at the time, the swimming pool was not a workplacewhen the occurrence took place. Therefore, the applicant argues, there was no reportingobligation in the facts of this case.2011 ONSC 3057 (CanLII)[26] There are significant logical flaws in the applicant’s argument. The focus is entirelytemporal and does not take into account the causative nexus between prevailing conditions andthe resulting harm. For example, had the swimmer been critically injured by a structural fault inthe pool area, it could hardly be argued that the circumstances ought not to attract the attention ofthe Ministry and thus the reporting obligation. Workers and guests are vulnerable to the samehazards. The purposes and intents of the legislation would be undermined if a physical hazardwith potential to harm workers and non-workers alike was not subject to reporting and oversight.[27] We are of the view that the language of the definition of “workplace” does not reasonablyadmit the construction proposed by the applicant. In our view, had the Legislature intended theconstruction advanced by the applicant, the definition of workplace would not be “any land,premises, location or thing at, upon, in or near which a worker works” but rather “any land…at,upon, in or near which a worker is working”. [Emphasis added.][28] In our view, the applicant’s suggested construction is neither consonant with the languageof the definition nor with the purposes of the legislation.[29] That said, we are not persuaded that the Board reasonably concluded that the whole of theBlue Mountain Resort is a workplace. Such a finding conflates, in our view, the proprietaryinterests of the applicant in the 750 acres of property with the statutory definition of “workplace”and it goes significantly farther than was necessary for purposes of disposing of the appeal. Eachcase must be determined on its own facts.

Page: 7[30] In this case, the guest drowned in the resort swimming pool. It is common ground that theswimming pool is a place where one or more workers work. For these reasons, the absence of aworker at the swimming pool premises at the time of the occurrence does not diminish the factthat it is a workplace, and we are not persuaded that the conclusion reached by the Board wasunreasonable.[31] Argument was directed to the spectre of disruption of the applicant’s operations and ofservices provided to the public by members of the intervenor if this court were to uphold theBoard’s holding that “person” means person and “workplace” does not import physical presenceof a worker at the time of an occurrence of death or critical injury. Such disruption is said to flowfrom an obligation under s. 51(2) to preserve the scene of the occurrence. It is suggested thatthere will be great disruption because the properties operated by the applicant and the intervenorare recreational in nature and attract vast numbers of users who are not workers and who suffercritical injuries in their recreational use of the properties. It is argued that a reporting obligationof such injuries does not advance the purposes of the Act and overexpands the reach of theMinistry of Labour.2011 ONSC 3057 (CanLII)[32] There was no issue before the Board as to whether there had been a failure to complywith s. 51(2) and, in our view, the Board correctly declined to deal with this issue.[33] We are of the view that the Board’s decision with respect to the obligation to report theswimming pool death was not unreasonable and accordingly dismiss the application.[34] The parties are agreed that as this application raises a novel issue, there should be nocosts.___________________________Low J.___________________________J. Wilson J.___________________________Swinton J.

Page: 8Released:2011 ONSC 3057 (CanLII)

CITATION: Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and TheOntario Labour Relations Board), 2011 ONSC 3057DIVISIONAL COURT FILE NO.: 373/09DATE: 20110518ONTARIOSUPERIOR COURT OF JUSTICEDIVISIONAL COURTJ. WILSON, SWINTON AND LOW JJ.BETWEEN:2011 ONSC 3057 (CanLII)BLUE MOUNTAIN RESORTS LIMITED– and –RICHARD DEN BOK, THE MINISTRY OFLABOUR AND THE ONTARIO LABOURRELATIONS BOARD,– and –CONSERVATION ONTARIOApplicantRespondentsIntervenorREASONS FOR JUDGMENTLow J.Released: May 18, 2011

PROVINCE OF NEW BRUNSWICKLabour and Employment BoardIN THE MATTER OF THE EMPLOYMENT STANDARDS ACTAND IN THE MATTER OF A REQUEST TO REFER AN ORDEROF DIRECTOR NO. O101102BETWEEN:Timothy ClementsSaint John, New Brunswick628608 New Brunswick Inc.doing business as First Stop AutoSaint John, New Brunswick- and -ES-036-10EmployeeEmployer2011 CanLII 13073 (NB LEB)BEFORE:John P. McEvoyVice-ChairpersonAPPEARANCES: For the Director: Drew Simpson, Esq.For the Employer: Glen JardineDATE OF HEARING: 25 January 2011DATE OF DECISION: 22 February 2011

DECISION OF THE BOARDI. INTRODUCTION1. The fundamental issue in this matter is whether an employee is entitled to pay in lieu ofnotice when the employee attempts an after-hours burglary of his place of employment, isarrested, subsequently convicted, and was not given written notice of termination by theemployer.2011 CanLII 13073 (NB LEB)2. On 6 October 2010, the Employment Standards Branch (“Branch”) in Saint John, N.B.received a complaint by Timothy Clements (“Clements”) that his employment had beenterminated without written notice. He claimed two weeks pay in lieu of the notice. Followingnormal procedures, an Employment Standards Officer, Derek Chase, investigated the matter andrecommended that the Deputy Director issue an Order. The Deputy Director thereupon issuedOrder No. O101102 on 3 November 2010 by which the employer, 628608 New Brunswick Inc.,doing business as First Stop Auto, Saint John, New Brunswick (“the employer”), was ordered topay to Clements the amount of $981.32 representing vacation pay of $37.74 and payment ofwages in lieu of notice of $943.58. In response, on 10 November 2010 the employer submitted aRequest to Refer the matter to the Board for a hearing de novo.3. At the hearing, the employer acknowledged as correct the amount specified in the Orderbut took the position, in part, that the employee had quit his employment rather than having been2

terminated by the employer.II. THE HEARING4. The Deputy Director of Employment Standards had carriage of the complaint and theemployer was represented by one of the two co-owners, Glen Jardine. Ten exhibits were receivedin evidence by consent including the complaint, documents detailing the calculation of theamounts claimed, letters dated 7 and 13 October 2010 from Chase to First Stop Auto detailing2011 CanLII 13073 (NB LEB)the complaint and findings, the Request to Refer, and Order No. O101102.5. Following a brief opening statement by the Deputy Director, to which Jardine did notreply, the Deputy Director called two witnesses.6. The first witness, Derek Chase, testified concerning his inquiry into the complaintsubmitted by Clements. Chase, an Employment Standards Officer in the Saint John office of theBranch, testified that Clements appeared at his office on 6 October 2010 with his pay stubs andcompleted the Employment Standards “Complaint Form” which stated, in part “I was fired frommy job on Sept 21 st 2010, I was not given a written notice....” The remainder of the complaintrelates, inter alia, to Clements’ tools, non-receipt of his record of employment form, and anapparent loan to him by a co-owner of the employer business. The next day, 7 October 2010,Chase sent a “voluntary compliance letter” to the employer advising of the complaint andrequesting either payment of the amount claimed or that the employer provide relevantdocuments if it denied the complaint. No documents were received. However, in response to the3

this letter, Jardine and Chase had a telephone conversation on 13 October 2010 as a result ofwhich Chase concluded that the employer would not make a voluntary payment of the amountclaimed and issued a “finding letter” in which his set forth his findings and conclusions. Chasefound that “the facts do not in any way show that a written reason of termination of employmentwas given to the employee at or near to the time of his termination/dismissal” (letter dated 13October 2010 Chase to the employer). Chase concluded that the employer had violated section30(1)(a) of the Employment Standards Act and asked that the payments outlined above be made2011 CanLII 13073 (NB LEB)by the employer within ten days, failing which he would forward a recommendation to theDirector that an Order be issued.7. On 25 October 2010, Chase had a conversation with the other co-owner (Jardineapparently being away) in which that person advised that he favoured “going to the Board”rather than paying the claimed amount. Thereupon, Chase recommended that the Director issuean Order and the Director subsequently did so. Chase considered the fact of filing a complaint asan indication that Clements did not intend to quit his employment. In direct examination, Chaselinked Clements’ termination of employment to having been “arrested for some reason”; incross-examination, he testified that Clements had told him of the “circumstances of that night”,i.e., the night of the arrest.8. The employer made no payment and the Deputy Director issued the order on 3 November2010.4

9. The second witness, Clements, testified concerning his employment history as anuntrained but experienced mechanic with the employer. He commenced this employment in Julyor August 2009 and worked from 8:00 a.m. to 5:00 p.m. Monday to Friday each week at the rateof $15 per hour. Before recounting Clements’ testimony regarding termination of hisemployment, I pause to observe that his complaint identified the date of termination as 21September 2010 and that, in testimony, he described the events as occurring on a Wednesday. InSeptember 2010, 21 September was a Tuesday. I attribute these apparent inconsistencies to the2011 CanLII 13073 (NB LEB)timing of the relevant events which were identified as “around midnight”. Putting aside thisdetail, the parties agree on the salient events.10. Clements testified that, around midnight on 21 September 2010, he and anotherindividual were apprehended by the police in the act of attempting to break into his employer’splace of business. He testified that he appeared in court the next day and was released by thepresiding judge on condition that he not appear at the employer’s place of business. Clementsalso testified that the police told him of this condition and advised him that Jardine had said thathe was fired from his employment and no longer welcome as an employee. In cross-examination,Clements testified that the police had told him that he was “no longer welcome at [his] place ofemployment and [his] position was terminated”. Clements attributed this statement not to Jardinebut to the other co-owner of the business. Clements acknowledged that the employer later paidthe outstanding wages and vacation pay for the days he had worked prior to the night of 21September 2010. This occurred at some point after Clements had unsuccessfully sent hisgirlfriend to the employer’s place of business for a cheque. Clements himself did not appear at5

the employer’s place of business after his arrest nor did he contact the employer until after hehad filed his complaint.11. Clements testified that he subsequently pled guilty to attempted break and enter at hisemployer’s place of business on the night of 21 September 2010 and was sentenced to aconditional sentence including house arrest for one year. At the hearing, Clements declined anoffer of time to retrieve supporting documents from his home to aid in the presentation of his2011 CanLII 13073 (NB LEB)evidence. He stressed that he had not taken anything from the business on the night of his arrest.12. Jardine testified that he had been the landlord of the business premises and subsequentlybecame involved as a co-owner. He testified that he received a phone call from the police,around 1:00 to 2:00 a.m. after discovery of the attempted burglary, advising of the attempt and ofClements’ arrest and of the arrest of the other individual. Jardine testified that he doesn’t recalltelling the police that Clements was fired but acknowledged that, at that time of the morning andgiven the disturbance of his sleep, he might have done so – and that perhaps he had said thatClements was not permitted on the property. He conceded that the other co-owner may havemade such a statement to police but thought it unlikely because there was no reason for thepolice to have contacted that co-owner after having contacted him after the arrests. Jardinetestified that Clements did not report to work the next day or, indeed, any day after his arrest andthat he had no communication from Clements except a subsequent phone call to Jardine’s homeasking about owed wages. At no time did Jardine, or to his knowledge the other co-owner, evercommunicate directly with Clements about termination of employment. Jardine testified that6

Clements’ phone call to him at home about unpaid wages occurred after he had received theletter and order from the Employment Standards Branch.13. In cross-examination, Jardine testified that he spoke with police officers when, after thearrest, they came to the business premises to verify the value of the “float” (the presumed objectof the attempted burglary) and other details pertaining to the security system, etc. He alsotestified that, when he had his conversation with Chase on 13 October 2010, Chase informed him2011 CanLII 13073 (NB LEB)that the period within which to send a notice of termination to Clements had already expired andthat it was, therefore, too late to rectify the failure to give written notice. Jardine made noattempt to contact Clements to determine his intention about returning to work. Heacknowledged that, assuming breach of the Act, the employer has no issue with the calculation ofthe amount of wages owed in lieu of notice of termination.III.POSITION OF THE PARTIES14. The Deputy Director identified the issue as relating to the proper characterization of thetermination of employment in this matter – was the termination of employment a “quit” or a“dismissal”. The Deputy Director argued that a “quit” situation involves two elements, asubjective intention to quit and an objective manifestation of that intention. He stressedClements’ testimony that the police had told him that he had been fired and that he was not toreturn to his place of employment. Pointing to this and that the presiding judge had included, as acondition of release from custody, that Clements stay away from his place of employment, theDeputy Director reasoned that such information must have originated with the employer. The7

Deputy Director argued that Order No. O101102 be affirmed.15. Jardine, for the employer, asserted that Clements had quit. He also expressed disquietthat the law would require an employer to pay wages in lieu of notice to an employee incircumstances involving serious criminal misconduct directed at the employer.2011 CanLII 13073 (NB LEB)IV.RELEVANT STATUTORY PROVISIONSEmployment Standards Act, S.N.B. 1982, c. E-7.2Section 1...In this Act...“dismissal” means the termination of the employment relationship for cause at thedirection of the employer;...“termination” means the unilateral severance of the employment relationship at thedirection of the employer...NOTICE OF TERMINATION29 Sections 30 and 31 apply only where employees are not covered by a collectiveagreement.30(1) Except where cause for dismissal exists, and subject to subsection (3) and tosections 31 and 32, an employer shall not terminate or lay off an employee withouthaving given at least(a) two weeks notice in writing, where the employee has been employedby the employer for a continuous period of employment of six months ormore but less than five years; and(b) four weeks notice in writing, where the employee has been employedby the employer for a continuous period of employment of five years ormore.8

30(2) Where an employer dismisses an employee for cause he shall do so in writing,setting out the reasons for such action, and, subject to section 31, unless this section iscomplied with no dismissal without notice is valid notwithstanding that cause for suchaction exists.[30(3) omitted]34(1) Notwithstanding sections 30 and 32 an employer may terminate or layoff anemployee without notice upon payment in lieu of notice of an amount equal to the pay theemployee would have earned during the notice period provided under section 30 asthough he were entitled to notice under that section.34(2) Where an employer does not comply with either section 30 or subsection (1) he isliable to the employee for the pay the employee would have earned during the noticeperiod.2011 CanLII 13073 (NB LEB)V. ANALYSIS AND DECISIONA) Quit or Dismissal16. The complainant, Clements, characterizes the ending of his employment relationship as adismissal (termination); the employer characterizes it as a ‘quit’. Over many years, thejurisprudence of this Board has approached the dismissal/quit conundrum through the analyticallens provided by Innis Christie et al, Employment Law in Canada [now 4th Ed, Lexis-Nexis,(2008), Loose-leaf, at par. 13.12]:It may sometimes be difficult to determine whether the employment relationship has beenterminated by a quit on the employee’s part or by a dismissal on the part of the employer.The courts and statutory adjudicators, echoing the approach of collective agreementarbitrators, have held that a valid resignation must have a subjective as well as anobjective component. The former requires conduct on the employee’s part thatunequivocally manifests that he or she had the subjective intention of quitting. The latterrequires conduct on the employee’s part that would lead a reasonable person in theposition of the employer to believe that the employee had carried out his or her subjectiveintention.In a fairly recent decision, Armstrong v. DonMatt Enterprises Limited (The Buccaneer’s Pub),2009 CanLII 37502 (NB L.E.B.) the Board quoted the above excerpt and added the following9

salient comments:25. Accordingly, there are two significant elements to a finding of a “quit” fromemployment:1) an express statement or action confirming an intent to quit; andthen2) a clear and unequivocal act to carry out that intention.26. The act of quitting, therefore, is an act solely within an employee’s control; if anemployer forces a quit to be effective, it is not a quit.27. Finally, while the burden of proof on a termination rests with the employeemaking this allegation, the Board also adopts the statement of the authors expressed inthe leading Ontario Employment Standards Handbook [Parry, Employment StandardsHandbook, 3rd Ed, Canada Law Book, 2009, Looseleaf at para. 15:100:30:60 2], on thepoint that “[w]hen uncertainty exists as to whether an employee has quit or not, it is theresponsibility of the employer to clear up that uncertainty.”2011 CanLII 13073 (NB LEB)17. The facts of DonMatt Enterprises presented a classic dismissal/quit scenario. Theemployer learned that, for reasons of health - at least in part, the regular janitor would not beavailable to work over the short term period. The employer then assigned janitorial duties toother employees, including the complainant, a food service employee of some long standing.Though accepted as a temporary solution by other employees, the complainant refused to reportto work one half hour early for each shift to perform janitorial services in the toilets. Theemployer’s manager and the complainant met to discuss the matter. At this meeting, the manageruttered no words of direct termination and the complainant uttered no words about quitting.Instead, the manager informed the complainant that, in fairness to other employees who acceptedtemporary janitorial tasks, she would be let go if she refused. The complainant returned her keysand left the establishment. The employer interpreted this as a quit; the complainant, as atermination. The Chairperson considered the subjective and objective factors identified above(neither of which, on the facts, was held to be within the complainant’s control) in combination10

with the employer’s failure to take steps to resolve any uncertainty or confusion as to thecomplainant’s employment status. As a result, the employer was held to have dismissed theemployee without written notice of termination or pay in lieu thereof.18. Similar analysis has produced similar results in other Board decisions. Consider forexample, Stevens v. Global Pet Food Stores Inc., 2010 CanLII 39757 (NB L.E.B) (employeeheld not to have subjective intention to quit when left meeting with employer under instruction to“think about her job”, after discussion of her health related absences, and employee left place of2011 CanLII 13073 (NB LEB)employment “unable to take it anymore” but informed employer when out of hospital);McKnight v. Stirling Fruit Farms Ltd. (Stirlings Mountain Side Farms), 2009 CanLII 37501 (NBL.E.B.) (employee held not to have quit employment when, on sick leave justified by medicalcertificates, employer requested return to work or be fired and then issued final pay cheque anddemanded return of keys); and Cameron v. Sarlin Subway Limited, 2004 CanLII 66242 (NBL.E.B.) (employee held not to have formed subjective intention to quit when left place ofemployment after forming belief would be dismissed for having opted to attend previouslyscheduled personal meeting rather than conflicting compulsory staff meeting).19. In both DonMatt Enterprises at para. 27 (quoted above) and Sarlin Subway at para. 13(quoting Sharon Price and We Care Home Health Care Services Ltd. [2003] N.B.L.E.B.D. No.13 at para. 16) the Board was precise in stating that the complainant employee bears the initialburden of proof to establish that the employer terminated the complainant’s employment. Thisfollows because a complaint that an employer has terminated or dismissed an employee withoutwritten notice is premised on the factual allegation that the employer has done so and the general11

ule on the burden of proof that the party who alleges must prove. In this context it is helpful torepeat to the subjective and objective elements identified in the Innis Christie quotation abovethat:[t]he former requires conduct on the employee's part that unequivocally manifests that heor she had the subjective intention of quitting. The latter requires conduct on theemployee's part that would lead a reasonable person in the position of the employer tobelieve that the employee had carried out his or her subjective intention.The focus on conduct in both branches reflects both the legal principle that a person is taken to2011 CanLII 13073 (NB LEB)intend the natural consequences of his or her acts and the 15 th century adage that “the Devilhimself knoweth not the thought of man” per Chief Justice Brian (Year Book 17 Edw. IV, p.1)[as quoted in C.S. Kenny, Outlines of Criminal Law (Cambridge: Cambridge University Press,1922, at 41]20. What then is the evidence in the present matter? Clements was an employee in goodstanding on the date and at the time that, as he acknowledged, he and another person attemptedto break into the employer’s place of business in September 2010. Doubtless, he hoped to evadedetection and arrest and would gladly have appeared at work and been paid his regular wages inthe days that followed. At no time in the relevant period following his arrest did Clementsexpressly communicate to his employer a decision to quit his employment. The same is true ofthe employer. At no time did the employer communicate directly with Clements concerning hisemployment status. The evidence does not reveal any direct communication between Clementsand the employer on the matter on or after the former’s arrest.12

21. Clements testified that the police informed him that the employer had dismissed him.Yet, that is clearly a hearsay statement offered as proof of the truth of its content. It is also veryself-serving. Certainly, there is no evidence that the police acted as agents of the employer tocommunicate this vital information to Clements. The Director argued that an inference should bedrawn linking the employer to the statement attributed by Clements to the unnamed policeofficer or officers about dismissal and to his release from custody by the judge on condition thatClements not appear at his place of employment. In other words, the Deputy Director argues that2011 CanLII 13073 (NB LEB)on proof of basic facts, the trier of fact is entitled to draw an inference of fact that logically flowsfrom the basic facts. However, in this instance the inference favoured by the Director is not theonly logical inference. The inference may also be drawn that the police and the judge advised, oreven required, Clements to stay away from the scene of the crime without any direct link to hisemployment status. So stated, this would not be an unusual condition of release. I decline todraw the inference favoured by the Director. Nor do I place significance in Jardine’s concessionthat he may have made an employment-related statement to the police when awakened in theearly morning hours after the arrest as evidence that such a statement was indeed made. Such astatement to police is not a statement to Clements nor does it necessarily constitute the police asagents to convey that information.22. Nor do I consider the filing of a complaint as necessarily inferring that Clements did notintend to quit his employment. In certain circumstances, that inference may logically be drawn.The present are not such circumstances. Clements did not proceed at the earliest opportunity tothe Branch offices; rather, he appeared there and completed the complaint form two weeks later13

on Wednesday, 6 October 2010. In other words, his visit coincided with expiration of the twoweeks notice period as provided by section 30(1)(a) of the Act. Though certainly consistent withan intention not to quit and thus permissive of such a factual inference, the filing of a complaintin the present circumstances is equally consistent with waiting out the expiration of the statutorynotice period so as not to bring the issue to the employer’s attention. Clements offered noexplanation for this delay. The condition of his release, according to him, was that he not attendat the employer’s place of business so he should have been able to visit the Branch offices if he2011 CanLII 13073 (NB LEB)so wished. At best, the filing of the complaint is a neutral factor.23. Shorn of hearsay and inappropriate inferences of fact, the evidence leads to theconclusion that Clements simply stayed away from his place of employment and the employerdid nothing. The evidence is silent of what arrangements the employer made to cover Clements’shifts at work or, indeed, when such arrangements were made. One might well assume that thisoccurred the very next day but no evidence supports this assumption. Thus, the first step toclarify the situation occurred after expiration of the two weeks notice period when Clements senthis girlfriend to attempt to collect his tools and a cheque for earned wages. The removal of histools might be a factor supporting the employer’s position that Clements quit his employment.24. On the evidence, Clements failed to satisfy his burden of proof that the employerterminated his employment. To the contrary, I conclude that Clements quit his employment. Hisdeliberate criminal conduct was so inconsistent with continuation of his employment relationshipthat, notwithstanding a desire not to be detected and arrested, he must be taken to have intended14

the natural consequences of his act. At its most basic level, his criminal conduct, to which hepled guilty, constituted just cause for termination of his employment. Having deliberatelyengaged in misconduct of such magnitude and so destructive of the employment relationship, hemust be taken to have intended to end the employment relationship. On the objective side, hisconduct was such, quoting Innis Christie, “that would lead a reasonable person in the position ofthe employer to believe that the employee had carried out his or her subjective intention.”25. I conclude that Clements has failed to satisfy his burden to prove that the employer2011 CanLII 13073 (NB LEB)terminated his employment. I conclude on the evidence in this matter that he quit hisemployment.26. Having reached this conclusion, it is not necessary to address other related issues notexpressly raised by the employer but implicit in his position. For example, Innis Christie et al,Employment Law in Canada, at para. 13.15.1, describe “abandonment” as an “unstated form ofresignation” which “constitutes a repudiation of the employment contract by the employee. Theemployer is then entitled to accept that repudiation and treat the contract as being at an end.”Though not necessary to decide the point, Clements’ misconduct could be characterized as“resignation by conduct” because it was of a serious criminal nature directed at his employer andin breach of his obligation of good faith towards his employer.(C)Conclusion15

27. For the reasons presented in this decision, I conclude that Clements quit his employmentand, thus, had no right to wages in lieu of notice of termination by the employer. Accordingly,Order No. O101102 issued by the Deputy Director on 3 November 2010 is vacated.Issued at Fredericton, New Brunswick, this 22 nd day of February 2011.2011 CanLII 13073 (NB LEB)John P. McEvoyVice-ChairpersonLabour and Employment Board16

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNALDECISION NO. 113/09BEFORE: S. Ryan : Vice-ChairB. Wheeler : Employer MemberK. Hoskin : Worker MemberHEARING:January 13, 2009 at London(Oral)2009 ONWSIAT 243 (CanLII)DATE OF DECISION: January 28, 2009NEUTRAL CITATION: 2009 ONWSIAT 243DECISION(S) UNDER APPEAL: P. Puhl, Appeals Resolution Officer, August 27, 2007APPEARANCES:For the worker:For the employer:Observer:P. Mancini, paralegalDid not participateThe worker’s wife

Decision No. 113/09REASONS(i)Introduction[1] In the decision of August 27, 2007, the Appeals Resolution Officer (ARO) denied theworker entitlement for “any psychotraumatic stress related impairment”. He determined that theworker was entitled to Loss of Earning (LOE) benefits based upon deemed minimum wageearnings in a 30 hour work week from February 2, 2007.[2] At the outset of the hearing, we discussed the issue agenda with Mr. Mancini. We agreedthat in this appeal the Tribunal will decide: 1) whether the worker has entitlement for “traumaticmental stress” as a result of two incidents in which a co-worker complained that the workersmelled of “body odour”; and 2) whether the worker is entitled to 100% LOE benefits fromFebruary 2, 2007 or, in the alternative, partial LOE benefits based upon his ability to work lessthan 30 hours per week at minimum wage.2009 ONWSIAT 243 (CanLII)(ii)Background(a) History to 2004[3] The worker was born in Portugal. He immigrated to Canada in 1973 at age 23. Prior toimmigrating to Canada, the worker was employed for three years as a mechanic and spent about2 ½ years in the Portuguese military. He was discharged from the military because of problemswith an ulcer. The worker testified that no physician ever explained the aetiology of his ulcerproblems.[4] The worker testified that between 1973 and approximately 1983, he worked in variousfactories and on a farm. He performed essentially manual labour jobs.[5] The worker testified that he and his wife are parents of two children, a son aged 26 and adaughter aged 14. Only the worker’s daughter lives at home at the present time. The workerdenied any significant non-occupational stress in his life, psychological problems or the need forpsychotropic medication prior to the events in 2004. He denied any family history of anypsychological illness.[6] The worker testified that in 1983, he began his own business. He bought a buildingcontaining 2000 square feet of space for two retail stores on the main floor and one apartment onthe top floor. He opened up a children’s clothing store and his wife opened up a hair salon. Herented the upstairs apartment. After a few years, the children’s clothing store was replaced by awomen’s clothing store and the single apartment was made into two apartments. After a fewmore years, he replaced the women’s clothing store with a discount store selling generalmerchandise. The worker testified that he did not employ staff. He stated that he alone ran thebusiness. He was responsible for purchase orders, stocking shelves, bookkeeping and essentiallyall of the administrative work required to operate a retail store. He worked from 9:00 a.m. to5:00 p.m. Monday to Friday, 9:00 a.m. to 2:00 p.m. on Saturdays and cleaned up the store,restocked shelves and did paper work on Sundays. The worker testified that his earnings fromhis retail activities fluctuated from one month to the next.

Page: 2 Decision No. 113/09[7] The worker confirmed information in the Case Record that he closed the discount store inJune 2004. He explained that a franchise discount store opened up close to his store. He statedthat he simply closed his store and left approximately $8,000 worth of merchandise in it. Hehoped that someone might buy it, but no one did.[8] Contrary to the reporting of Dr. Swamy (discussed below), the worker emphaticallydenied that closing his store after two decades caused him any regret or duress. He testified thathe was elated with the prospect of not having to work “seven days a week” and complete paperwork in the evenings and on weekends. He stated that he yearned for a more reliable income andmore time to play golf with his friends. The worker testified that he enjoyed playing golf about60 times per season, after work and on weekends.[9] The worker testified that after he made the decision to close his retail store, he looked forwork in the London area. He recalled that he was hired by the accident employer through apersonnel agency in September 2004. The worker testified that he was very happy with his newjob because it provided him with more time off work and a more reliable and stable income. Theaccident employer manufactured automobile parts (headrests) and he was hired as an assembler.He worked 40 hours per week and earned $11.48 per hour.2009 ONWSIAT 243 (CanLII)[10] The worker testified that because he was hired through a personnel agency, he was on“probation” for three months. He testified that it was during this period that he first developedsymptoms in both hands and also developed a psychotraumatic disability resulting fromcomments made by co-workers.(b) Onset of bilateral hand symptoms and psychotraumatic disability[11] The worker stated that his duties as an assembler involved a rotation between variousworkstations and a rotation with two other workers at each workstation. The majority of hisduties involved placing covers over foam headrests. He stated that because of the rotation ofassignments, he typically worked alongside different co-workers from one shift to the next.[12] The worker testified that during the first few weeks of his new job, he began toexperience a “tingling” sensation in his fingers. Initially, he attributed the symptoms to a changein physical activities associated with his new job. Thus, he did not report the symptomsimmediately to the accident employer or seek medical attention.[13] The worker testified that his relationship with co-workers was good, in the beginning. Hesat with them at lunchtime and joined them on coffee breaks. He estimated that only about 30%of the workers in the plant were his age or older. He stated that he knew some of his co-workersbefore the accident employer hired him.[14] The worker recalled that one day in November 2004, about halfway into his shift, anemployer administrator summoned him for a meeting with his supervisor. In the meeting theadministrator advised that the personnel agency had received a complaint about his body odour.The administrator did not divulge the name of the complainant. The worker testified that neitherthe administrator nor the supervisor knew what to suggest as a solution to address the complaintand left that up to him. The worker recalled that he advised the administrator and supervisor that2

Page: 3 Decision No. 113/09he showered everyday. He stated that the complaint was “like a bombshell” to him. He returnedto the production floor and completed his shift.[15] The worker testified that after his shift, he went home and told his wife what hadhappened. She suggested that he not put up with such accusations and recommended that he quithis job. The worker testified that although the allegation was devastating to him, he wasdetermined not to quit his job.[16] The worker testified that he returned to work the next day and probably worked evenharder than he had previously because he was no longer interested in anything at work exceptfulfilling his duties on the production line. He stated that he became isolated. He did not joinco-workers for lunch or coffee breaks.[17] Within a few days, the administrator called him again for a second meeting with thesupervisor. In this meeting, he was told that a second complaint about his body odour wasreceived by the personnel agency. Again, the administrator could not offer him any suggestionabout how to address the problem and was concerned about how the worker could return to theplant knowing that someone was complaining about such a personal matter. The worker testifiedthat the administrator was quite sympathetic.2009 ONWSIAT 243 (CanLII)[18] The worker testified that he returned to his regular duties and worked even morediligently. His isolation from co-workers deepened. The worker testified that he became“paranoid” about co-workers in the plant. He suspected that some of them “plugged their noses”when he was near them. He suspected that anyone who moved away from him did so because ofhis body odour. The worker testified that he avoided the workers he knew before being hired forfear that they would find out about the allegations. He stated that eventually he became soreclusive at work that his wife came to the plant on her days off to have lunch with him becauseshe knew he ate alone.[19] The worker testified that the workplace environment became extremely intolerable forhim. At home, whenever he thought about the allegations, he developed “panic attacks” andcried frequently. He raised the allegation of his body odour with his family doctor,Dr. T. Wolder. The worker testified that initially Dr. Wolder “laughed” but, after the physicianpersonally smelled him, concluded that he did not have a body odour problem. The workerrecalled that he nevertheless asked the family doctor for a strong anti-perspirant.[20] The worker recalled that his wife approached a pharmacist for a strong anti-perspirant. Ina note dated February 15, 2007, a pharmacist advised that in 2004, the worker’s wife was givenDrysol (Aluminium Chloride Hexaydrate) for her husband (Exhibit #4).[21] The worker testified that the administrator summoned him for a third meeting. He statedthat he thought the meeting was called because of a third complaint. To his pleasant surprise, themeeting was called to confirm that he had successfully completed the three month probationaryperiod and was hired on a permanent basis with the accident employer. He recalled thesupervisor saying, “Now you’re mine”. He recalled that she was happy to have him as afull-time employee because he was a productive worker.3

Page: 4 Decision No. 113/09[22] The worker testified that, to his knowledge, no other complaint about his body odour wasever made following the second complaint. Despite being happy to have a full-time, permanentjob with regular pay and health care benefits, he continued to avoid co-workers for fear thatsomeone else might complain.[23] On December 8, 2004, the worker presented to the Emergency Department of a localhospital with his wife. He was seen for complaints of stress. Dr. Wolder met him at the hospitaland in a report dated December 8, 2004, advised:This gentleman was brought in as a booked patient. I asked him to come and see metonight with his wife who states that he could not stand it any more, working at thefactory. Apparently, this gentleman has worked all his life as an independentbusinessman. The business had gone very sour lately and now he has had to go and workat a local factory. He feels intimidated by working at the local factory and also feelspeople are starting to make fun of him, being an older guy working among young peopleand not being able to catch onto things. He has been working there almost three months.His probation period is over although he did call in sick today. He does not feel there isany future there at all.I had started him on Paxil 25 mg od for his depression but he has only taken it for threedays and there has not been any great result so far. He also has shown some mentalincompetence as far as being able to look after himself. At times he just withdraws fromthe group at work and just sits by himself. He denies any suicidal ideation although attimes he says he wishes he could just end it all so we are getting conflicting messages.Unfortunately, tonight there are no hospital beds available for him to be admitted. I havedecided to send him home with his wife. He is taking Paxil. I will see him in themorning and will try to get him an out patient appointment with a psychiatrist as soon aspossible.[24] The worker recalled this visit to the hospital. He testified that at that time, his wife didnot know what to do with him. He stated, “I was like a little baby or kid at home…the smallestthing upset me”. He recalled that the hospital would not admit him because he was not suicidal.2009 ONWSIAT 243 (CanLII)[25] On December 9, 2004, the worker met with Dr. G.N. Swamy, a psychiatrist. In hisensuing report, Dr. Swamy advised:According to [the worker].he has been feeling stressed out and depressed for the last 3months or so. He said it all began when he sold his business incurring with some lossprior to seeking a factory job. He felt that he was not able to adjust to the factory workmilieu for he was working with a younger age group and he had specific issues likesomeone had complained at the workplace that he smelled bad and in this regard he hadto see his employer. However, he was known to be a hard worker and this complaint wasunsubstantiated, the employer encouraged him to carry on working. It becameincreasingly difficult for [the worker] to accept the work milieu and the people inparticular causing this undue concern about his body odour and complaining to theemployer. He also felt that he was in no way in common with the rest of the crowd at hisworkplace for they were far younger and they were not measuring up to his maturitygrowth and development. He somehow felt that his personal pride has been badlystepped on and he began to experience anxiety symptoms almost amounting to a panicattack every morning before he went to work. He explained the symptoms as nausea,racing heart, light-headedness, discomfort in breathing and feeling totally sick. He wasall right when he started working and his symptoms never came back during his workhours. He returned home with a lot of “load and baggage” from the workplace and he4

Page: 5 Decision No. 113/09began to ruminate over those issues. He said he was having difficulty to sleep and notbeing able to eat well. He lost some weight, his energy level was down and he lackeddrive and interest. He had to ask his wife to make all the decisions and he was not able toenjoy things like he used to. In a way he had developed major depressivesymptomatology reactive to the conflicts at the workplace particularly working with thefellow workers who were far younger and began to raise certain mischief and for somereasons complaining that he was smelling bad. [The worker] went around people withinhis family and friends seeking reassurance that he wouldn’t smell bad. He had regularbaths and showers and he used deodorant regularly. He also went to a chemist andrequested for a deodorant which would keep his body odour in control. Although hischemist reassured him that he had no such problems, for [the worker’s] own satisfactionhe gave him a certain deodorant. In the last week or so he has felt indecisive and he wasnot sure if he would go back to work. He said a brief period of rest from work is doingall the good but still he continues to have the symptoms of anxiety and depression asdescribed above.. . .On mental state examination, [the worker] appeared very well dressed and groomed. Hewas reassured that he was free from any body odour. He was very talkative and to someextent anxious. He did not present with any formal thought disorders. He lookeddepressed and anxious. He admitted to depressive symptomatology as explained in thehistory. He did not admit to any suicidal ideations. He said that presently he was fairlyokay to return to his job on the 13 th of December and although lacks some confidence hewould go back and face the work milieu. He did not admit to any alcohol or substanceabuse. He was well oriented to time, place and person and there was no apparentcognitive deficit. He was insightful and his judgement was good.[26] Dr. Swamy opined:2009 ONWSIAT 243 (CanLII)In my professional opinion he suffers from reactive depression with major depressivesymptomatology and anxiety symptoms.Dr. Swamy prescribed anti-depressant medication and advised that the worker felt a lot betterfollowing a session of cognitive therapy.[27] On January 12, 2005, the worker presented to Dr. Wolder with complaints of pain in hisbilateral arms.[28] On February 17, 2005, the worker stopped working. He testified that he stopped workingbecause of the pain in his hands and because of his “psychological damage”.[29] In a report dated February 18, 2005, Dr. Wolder related the worker’s condition to therepetitive nature of his work. The family doctor arranged for further investigations and opinedthat the worker was not capable of working at that time.[30] On February 21, 2005, the worker presented a medical note to the accident employerauthorising his time off work. The worker recalled that he was offered modified dutiesconsisting of “walking around”. He stated that he declined the offer because it would haveexacerbated his psychological condition. He explained that co-workers would see him simplywalking around. The worker testified that he returned home and cried. His wife told him that hewas not to return to work.5

Page: 6 Decision No. 113/09[31] EMG and nerve conduction studies carried out on February 23, 2005, indicated moderatemedian entrapment neuropathy in the right wrist and mild median entrapment neuropathy in theleft wrist.[32] The worker filed a claim with the WSIB for the injuries to his bilateral wrists and wasgranted entitlement. Over the ensuing weeks, following the diagnosis of bilateral wrist medianentrapment neuropathy, the worker participated in conservative health care treatment for hiswrists as well as regular treatment with Dr. Swamy.[33] The WSIB determined that the worker suffered a permanent impairment to his wrists. OnNovember 15, 2006, he was granted a 9% Non-Economic Loss (NEL) award for “bilateralmedial nerve entrapment aggravated by pre-existing osteoarthritis”.(c)LMRS[34] The WSIB determined that the accident employer could not provide the worker withsuitable modified work for his bilateral wrist impairments. Accordingly, he was referred toLabour Market Re-entry Services (LMRS) in May 2006.2009 ONWSIAT 243 (CanLII)[35] Following psycho-vocational testing, it was determined that the worker’s intellectualpotential measured in the average range. His reading, spelling and arithmetic abilities weremeasured at the Grade 8.2 level, Grade 6.4 level and Grade 8.2 level respectively. In a LMRPlan Proposal report dated June 7, 2006, a Suitable Employment or Business (SEB) objective ofService Adviser (NOC 1453) was recommended. An alternative SEB of Customer ServiceRepresentative – Financial Services (NOC 1453) was also recommended. However, the reportindicated that the worker’s “psychological issues are likely to interfere with vocationalrehabilitation”.[36] The worker confirmed that he participated in academic upgrading to acquire a GeneralEducation Diploma (GED). By November 2006, he had successfully completed all coursesexcept for an English course. The worker confirmed that he re-wrote the test for the Englishcourse after 30 hours of tutoring, but failed it again. In January 2007, while participating in anAutomotive Service Specialist program, the worker advised the LMR provider that he would nolonger be participating in the process.[37] In a report dated February 6, 2007, the LMR provider noted:[The worker] advised this Case Manager at the outset of the LMR plan of his psychiatriccondition and the medications he was ingesting as well as his monthly appointments withhis psychiatrist. [The worker] was unsure from the outset of the process if he would becapable of fulfilling the obligations involved in the process and as such a SEB waschosen that would provide [the worker] with the least amount of stress; provide him withthe maximum amount of flexibility in the learning environments, and ease him back intothe workforce through a work placement. Despite this, [the worker] continued toexperience ongoing anxiety which increased once he entered the formal training phase ofthe LMR program. On January 22, 2007, [the worker] with his spouse met with this CaseManager and advised that he would be unable to continue participating in the LMRprocess as a result of ongoing psychiatric issues that have been determined to be noncompensable.[The worker] provided this Case Manager with a copy of a letter from his6

Page: 7 Decision No. 113/09psychiatrist Dr. Swamy which states that in his opinion the worker suffers from apsychiatric disorder and is not gainfully employable or able to attend school at this time.[38] Effective January 22, 2007, LMRS were closed.[39] At the hearing, the worker confirmed that he had reservations about retraining for a newoccupation at the outset of his participation in LMRS. He testified that he did not think he couldhandle the SEB objective because it would involve “a lot of pressure”. Despite his reservations,he participated in academic upgrading. The worker recalled that this involved spending ½ daysin class, five days per week, with about 5 or 6 other students. The worker testified that he missedsome days because of stress and anxiety. He stated that while no one in the classroom evercomplained about his body odour, he was constantly “looking over his shoulder” as this concern“never left” him. He stated that he joined classmates on coffee breaks, but whenever someonewalked away from him it “triggered” the memory that he was accused of having body odour.The worker testified that he consumed anti-depressant and anti-anxiety medication prescribed byDr. Swamy. However, these pharmaceuticals had the effect of making him tired and reducinghis ability to concentrate.2009 ONWSIAT 243 (CanLII)[40] The worker recalled the meeting with the Case Manager in which he and his wife advisedthat he would no longer be participating in LMRS. The worker testified that he was incapable oftolerating the pressure of exams. He felt that the school was unsympathetic and interested onlyin maximizing billable hours. The worker stated that he told the Case Manager about his panicattacks. On some occasions, his panic attacks were so severe that he begged his wife to stayhome and take care of him.[41] In a decision dated March 7, 2007, a Board Claims Adjudicator (CA) advised the workerthat his LOE benefits were reduced to the deemed earnings of the SEB objective on the basis thatthere was “no rationale as to why [he was] unable to complete the LMR plan”.(d)The worker’s activities after the closure of LMRS[42] The worker testified that following the completion of LMRS, he essentially stayed athome. He did not look for work, although he briefly attempted to work from home translatingbetween the English and Portuguese languages. However, this effort proved to be veryfrustrating for him because his Portuguese vocabulary diminished with the passage of time.[43] The worker testified that he rarely socialises. On two occasions last summer heattempted to play golf with two friends. However, the experience “did nothing for [him]” andaggravated his hand condition. The worker advised that he keeps in regular contact with hissiblings (two brothers and one sister) who live in Portugal and that he visits his mother-in-law.[44] The worker confirmed that he holds a valid driver’s license, but only drives on anoccasional basis to drop off or pick up his wife from work or pick up some groceries.[45] The worker testified that he continues to experience significant sleep disruption at night.Thus, he tends to sleep “three-to-four” hours during the daytime. He stated that he frequentlywakes up during the daytime with “anxiety attacks”. He laments over his inability to work andfeels guilty that his wife is supporting him financially. In 2007 or 2008, he was grantedentitlement to Canada Pension Plan (CPP) disability benefits.7

Page: 8 Decision No. 113/09[46] When asked about his ability to work at the time of the hearing, the worker testified thathe would not last one hour in any job. He stated that even thinking about working causes him to“fall to pieces”. He stated that he is able to tolerate physical pain, but his psychologicaldisability is the most significant impediment to returning to work. He stated that his overalldisability is 70% attributable to his psychological problems and 30% attributable to his bilateralwrist problems.[47] The worker stated that he has significant difficulty even answering a telephone or talkingto people he does not know. We asked the worker how it was he appeared to have no difficultytalking to us in detail about his physical and psychological conditions. He explained that in thecontext of a hearing, he has no choice but to talk about his circumstances. The worker stated thathe experienced significant anxiety in the days leading up to the Tribunal hearing, but managed toappear because of a very understanding and supportive wife.[48] The worker testified that he continues to receive treatment from Dr. Swamy. For a briefperiod, he participated in group therapy with other people suffering from psychological issues.He did not find these sessions helpful and stopped attending them after about five or six sessions.2009 ONWSIAT 243 (CanLII)[49] Mr. Mancini asked the worker what he wanted from the Tribunal. He stated that hewould like new eyeglasses. He explained that he hoped a favourable decision will provide himwith health care benefits to cover expenses such as eyeglasses and dental care for himself and hisfamily.(iii)Submissions[50] Mr. Mancini submitted that the applicable policy in this appeal with respect to theworker’s psychological problems is Operational Policy Manual (OPM) Document #15-03-02,“In the Course of and Arising out of” – Traumatic Mental Stress”. Mr. Mancini submitted thatthe worker suffered an acute reaction to a traumatic event. He noted that the precipitating eventsin this case were the two allegations of co-workers that the worker had bad body odour.Mr. Mancini submitted that this case fits the “thin skull doctrine” and that there was no otherexplanation in the available evidence to account for the worker’s psychological disability.[51] The worker’s representative acknowledged the medical reporting of Dr. Swamy thatindicated that the closure of the worker’s business after 20 years might also have played a role inthe development of his psychological disability. However, he emphasised the worker’stestimony that such was not the case. Mr. Mancini submitted that, at best, the closure of theworker’s business pre-disposed him to the development of a psychological disability, but that thecatalysts for the well-documented emotional problems were the allegations of co-workers.[52] Mr. Mancini submitted that even if the Tribunal determines that the worker’spsychological disability is not compensable, it must nevertheless consider the psychologicaldisability as a component of the worker’s personal and vocational characteristics for the purposeof determining the correctness of the SEB objective and his overall employability. On this point,Mr. Mancini cited OPM Document #19-03-04, “Labour Market Re-entry (LMR) – Entitlement toLMR Plans” which states that the Board must have regard for a worker’s rights under theOntario Human Rights Code. The policy states that the Board considers “any non-work-relateddisability, handicap or condition a worker may have” in formulating a LMR plan.8

Page: 9 Decision No. 113/09[53] The worker’s representative submitted that the evidence supports the conclusion that, dueto his personal and vocational characteristics (including a psychological disability), limitedtransferable skills and permanent impairment in his bilateral wrists, the worker was effectivelyunemployable as of February 2, 2007, when LOE benefits were reduced. Accordingly, hesubmitted, the worker is entitled to 100% LOE benefits. In the alternative, Mr. Mancini askedthat the Tribunal grant the worker an increase in the level of his LOE benefits based upon anability to work on a part-time basis only (i.e. less than 30 hours per week).(iv)Analysis[54] We have carefully considered all of the available documentary evidence before us, theworker’s testimony under oath and the submissions of Mr. Mancini.1. Does the worker have entitlement for “traumatic mental stress” as a result of twoincidents in which co-workers complained that the worker smelled of “body odour”?[55] It is important to emphasise that in this appeal the worker is not seeking entitlementunder the Board’s OPM Document #15-04-02, “Disabilities/Impairments Resulting fromAccidents – Psychotraumatic Disability” as he is not claiming that his compensable bilateralwrist impairments played any role in the development of his psychological disability. In thisappeal, the worker seeks entitlement under OPM Document #15-03-02, “In the Course of andArising out of” – Traumatic Mental Stress” on the grounds that he suffered a severe reaction to awork-related traumatic event when an anonymous complaint was made about his body odour.2009 ONWSIAT 243 (CanLII)[56] In deciding the issue of initial entitlement in this case, we consider the provisions ofsection 2 of the WSIA. That section provides a list of definitions and defines “accident” asfollows:2(1) In this Act,"accident" includes,(a) a wilful and intentional act, not being the act of the worker,(b) a chance event occasioned by a physical or natural cause, and(c) disablement arising out of and in the course of employment; ("accident”)[57] Section 13 of the WSIA states:13. (1) A worker who sustains a personal injury by accident arising out of and in thecourse of his or her employment is entitled to benefits under the insurance plan.Presumptions(2) If the accident arises out of the worker’s employment, it is presumed to haveoccurred in the course of the employment unless the contrary is shown. If it occurs in thecourse of the worker’s employment, it is presumed to have arisen out of the employmentunless the contrary is shown.Exception, employment outside Ontario(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits underthe insurance plan if the accident occurs while the worker is employed outside of Ontario.Exception, mental stress9

Page: 10 Decision No. 113/09(4) Except as provided in subsection (5), a worker is not entitled to benefits under theinsurance plan for mental stress.Same(5) A worker is entitled to benefits for mental stress that is an acute reaction to a suddenand unexpected traumatic event arising out of and in the course of his or heremployment. However, the worker is not entitled to benefits for mental stress caused byhis or her employer’s decisions or actions relating to the worker’s employment, includinga decision to change the work to be performed or the working conditions, to discipline theworker or to terminate the employment. 1997, c. 16, Sched. A, s. 13.[58] OPM Document #15-03-02 was identified by the Board as an applicable policy in thiscase. It states that a worker is entitled to benefits for traumatic mental stress that is an “acutereaction to a sudden and unexpected traumatic event”. The policy states that a traumatic eventmay be a result of a criminal act, harassment, or a horrific accident, and may involve actual orthreatened death or serious harm against the worker, a co-worker, a worker’s family member, orothers. It requires evidence of an event that is clearly and precisely identifiable, objectivelytraumatic and unexpected in the normal or daily course of the worker’s employment or workenvironment. Examples offered in the policy of sudden and unexpected traumatic eventsinclude:2009 ONWSIAT 243 (CanLII)• being the object of threats of physical violence where the worker believes the threats areserious and harmful to self or others (e.g. bomb threats or confronted with a weapon)• being the object of harassment that includes physical violence or threats of physicalviolence (e.g. the escalation of verbal abuse into traumatic physical abuse)[59] The policy also provides entitlement in circumstances where a worker has been exposedto multiple, sudden and unexpected traumatic events resulting from criminal acts, harassment, orhorrific accidents even if the last event is not the most traumatic or significant.[60] In Decision No. 422/96, the Panel set out the applicable legal test in mental stress caseswhich has been followed by other Tribunal decisions:The basic questions could then become:1. Is it reasonable that workers of average mental stability wouldperceive the workplace events to be mentally stressful?2. If so, would such average workers be at risk of suffering adisabling mental reaction to such perceptions?If the answer to either question is “no”, the psychological damage would not becompensable.[61] In Decision No. 871/99 (September 16, 2003), the Panel discussed the average workertest set out above, and clarified that the thin-skull rule continues to apply in these cases:But these questions do not create a new legal requirement for entitlement. The“thin-skull rule” continues to apply. If it is found that there was an employment-relatedinjuring process, the disability from the resulting psychological injury is compensable,even if that disability is, because of some pre-existing vulnerability, greater than it wouldbe for the average worker.10

Page: 11 Decision No. 113/09[62] Recent Tribunal decisions have specifically interpreted the WSIA and applicable Boardpolicy in mental stress cases.[63] In Decision No. 1527/05 (February 13, 2006), the Panel considered the followingquestions in determining initial entitlement for mental stress:1. Was there a “sudden and unexpected traumatic event”?2. If so, did the worker suffer an “acute reaction” to that event?3. Was the worker’s psychological disability related to the workplace event? In this case, thisissue will require consideration of the worker’s history.The Panel noted:Board policy provides a number of examples, and states that the event must beobjectively traumatic. Therefore, the nature of the incident must be assessedindependently of the worker’s subjective reaction to it. As noted in Board policy, it is notnecessarily a bar to entitlement if other workers did not suffer mental stress whenexposed to the same event: “Not all workers have the same resilience to sudden andunexpected traumatic events.” Therefore, even though an objective test is applied, it isnot necessary to establish that all workers would suffer the same type of reaction to theevent in order to characterize it as “traumatic.”. . .The question is, would a reasonable person, with knowledge of the relevantcircumstances and context, consider the incident experienced by the worker to betraumatic?[64] With respect to the harassment provisions of Board policy, we note that early Tribunaldecisions interpreted the policy broadly. For example, Decision No. 2056/03 (March 12, 2004)held that harassment could include unjustified, non-violent attacks by co-workers andsupervisors.2009 ONWSIAT 243 (CanLII)[65] However, recent Tribunal decisions have taken a narrower view of harassment. InDecision No. 620/08 (March 19, 2008), the Panel considered earlier Tribunal case lawinterpretations of the Board’s policy on the issue of harassment. The Panel cited Decision No.2056/03 and Decision No. 669/02 (March 27, 2003) which interpreted the word harassmentbroadly. The Panel in Decision No. 620/08 concluded:We do not agree that all types of “harassment” which would fall within a dictionarydefinition of that word, would attract entitlement under the policy. For example, in ourview, the circumstances where a co-worker insults another co-worker, or calls another coworkera vulgar name, might very well qualify as “harassment” according to a dictionarydefinition (i.e., subjecting (someone) to…unpleasantness), but, in the absence of othercontributory factors, would fall short of the requirements for entitlement under the policy.We reach this conclusion having regard for the list of occurrences which are explicitlystated in the policy as examples of occurrences that would attract entitlement.In our view, the list should be considered as instructive, although not necessarilyexhaustive. The items on the list suggest that entitlement applies when the circumstancesare very serious, and where a threat to personal security is implicit, if not explicit. Asindicated above, this must be considered from an objective perspective, and not solelyfrom the subjective perspective of the aggrieved party. Having said that, we wish to reemphasizeour view that the occurrences listed in the policy which would attract11

Page: 12 Decision No. 113/09entitlement should not be considered to be an exhaustive list. There are types ofharassment not included in the list, such as sexual harassment, which could, inappropriate cases, provide the basis for entitlement.We note that Decision No. 2056/03 granted entitlement to benefits for traumatic mentalstress in a case where the worker was subjected to “overzealous scrutiny” by hersupervisor. We are not able to agree with the Panel in Decision No. 2056/03, to theextent that the decision stands for the proposition that a worker may be entitled tobenefits for traumatic mental stress as a result of “overzealous scrutiny” by a supervisor,in the absence of other extraordinary or mitigating circumstances.[66] In Decision No. 3022/07 (November 26, 2008), the Panel held that entitlement applieswhen circumstances are very serious and where a threat to personal security is implicit. ThePanel held that the policy does not apply when the facts amount only to unpleasant or hostileinteraction between co-workers. At paragraphs 184 to 186, the Panel noted:We agree with the interpretation of section 13, and of Board policy, set out in DecisionNo. 620/08. Although that decision recognizes that the type of traumatic events that mayform the basis for entitlement are broader than those listed in Board policy, we agree thatthe list found in Board policy should be considered as instructive, although notnecessarily exhaustive, of the kinds of events that fall within the policy. The items on thelist suggest that entitlement applies when the circumstances are very serious, and where athreat to personal security is implicit, if not explicit. As indicated above, this must beconsidered from an objective perspective, and not solely from the subjective perspectiveof the aggrieved party.We agree that there are situations not expressly listed, that might meet that criterion, suchas, in some circumstances, sexual harassment. Sexual harassment can involve an implicitthreat to personal security, but it is not listed in the policy. Also, in our view, the facts ofDecision No. 929/04 provide another such example. In that case, the threat to the policeofficer was of a criminal conviction and possible jail. A threat of incarceration is a threatto personal security, although it is not specifically listed in the policy.However, in our view, the policy does not apply when the facts established amount onlyto unpleasant or hostile interactions between co-workers. That is not an uncommonoccurrence in a workplace. Further, when management actions are involved, we agreethat the Act requires that the impugned actions must go beyond an “employer's decisionsor actions that are part of the employment function”. To fall outside this exclusion, in ourview, the action of management must be egregious and/or carried out in bad faith. Even“overzealous” scrutiny, when carried out for the purposes of accomplishing the workfunctions, is insufficient in our view to fall within the provisions of the Act.[67] The Panel in Decision No. 871/99 noted that the general principles of causation applyequally in mental stress cases. The Supreme Court of Canada reviewed the principles ofcausation in Athey v. Leonati, [1996] 3 S.C.R. 458. Major J., speaking for a unanimous Court,provides an overview of the authorities and sets out the following general causation principles:2009 ONWSIAT 243 (CanLII)Causation is established where the plaintiff proves to the civil standard on a balance ofprobabilities that the defendant caused or contributed to the injury: Snell v. Farrell,[1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).The general, but not conclusive, test for causation is the "but for" test, which requires theplaintiff to show that the injury would not have occurred but for the negligence of thedefendant: Horsley v. MacLaren, [1972] S.C.R. 441.The "but for" test is unworkable in some circumstances, so the courts have recognizedthat causation is established where the defendant's negligence "materially contributed" to12

Page: 13 Decision No. 113/09the occurrence of the injury: Myers v. Peel County Board of Education; [1981] 2 S.C.R.21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v.National Coal Board, supra. A contributing factor is material if it falls outside the deminimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske(1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd [1989] 2 S.C.R. 979.In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove thatthe defendant's tortious conduct caused or contributed to the plaintiff's injury. Thecausation test is not to be applied too rigidly. Causation need not be determined byscientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 AllE.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practicalquestion of fact which can best be answered by ordinary common sense". Although theburden of proof remains with the plaintiff, in some circumstances an inference ofcausation may be drawn from the evidence without positive scientific proof.It is not now necessary, nor has it ever been, for the plaintiff to establish that thedefendant's negligence was the sole cause of the injury. There will frequently be amyriad of other background events which were necessary preconditions to the injuryoccurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed.1992) at p. 193), a "fire ignited in a wastepaper basket is . . . caused not only by thedropping of a lighted match, but also by the presence of combustible material andoxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendantis part of the cause of an injury, the defendant is liable, even though his act alone was notenough to create the injury. There is no basis for a reduction of liability because of theexistence of other preconditions: defendants remain liable for all injuries caused orcontributed to by their negligence.[68] Tribunal decisions have recognized the common law principles of causation and adaptedthem to the workers’ compensation/workplace insurance context. 1 It is generally accepted thatthe Tribunal’s “significant contribution” test is essentially the same as the “materialcontribution” test applied at common law. 22009 ONWSIAT 243 (CanLII)[69] There is no evidence before us to indicate that prior to 2004, the worker ever had anysignificant psychological problem requiring either medical attention or psychotropic medication.Although the worker has a long history of ulcers, there is no evidence linking his ulcers toemotional stress. In a report dated November 15, 2004, Dr. Wolder advised that the worker washis patient since 1982 with no history of depression. There is no evidence before us that theworker suffered from any substance abuse.[70] There is no dispute in this case that on two occasions the worker was called into ameeting by an employer administrator and supervisor to discuss complaints about his bodyodour. On September 5, 2006, a Board Claims Investigator (CI) contacted WP, administratorwith the accident employer, who confirmed that she received a telephone call from the personnelagency about complaints from co-workers and was asked to speak to the worker. At no time didthe accident employer ever express a concern about the worker’s body odour and, moreimportantly, at no time was there ever any indication that the worker’s job might somehow bejeopardised by that issue. To the contrary, the accident employer considered the worker to be a1 Decision No. 549/95I2 (July 23, 1998) discusses the common law principles and how they apply in this context.2 See for example, Decision Nos. 832/91 (October 7, 1992), Decision Nos. 228/02R (January 20, 2004) and 1645/99R(October 31, 2000). The use of the word “significant” is not intended to connote a higher standard for establishing causationin workplace injury cases.13

Page: 14 Decision No. 113/09good worker and readily accepted him for full-time, permanent employment as soon as the threemonth probationary period expired.[71] There is no dispute in this case that the worker developed a psychological disabilitywhich required treatment from a psychiatrist beginning in December 2004. In his report ofDecember 10, 2004, Dr. Swamy advised:In my professional opinion he suffers from reactive depression with major depressivesymptomatology and anxiety symptoms.[72] Subsequent reporting from Dr. Swamy confirms that the worker continued to experiencepsychological symptoms such as depression, anxiety and panic attacks for which psychotropicmedications were prescribed and cognitive therapy provided.[73] In a report dated August 22, 2006, Dr. Swamy offered the following DSM-IV diagnoses:2009 ONWSIAT 243 (CanLII)AXIS I:AXIS II:AXIS III:AXIS IV:Major depression with anxiety and panic symptomsNo diagnosisNo diagnosispsychosocial stressors: sensitive to work milieu, being harassed andbulled by other workers, particularly spreading rumors that he has bodyodour. This specifically has lowered his self-esteem, self-worth andself-image. Overall he is in a major conflict whether to work or not.AXIS V: GAF 60 when the patient was seen and previously it was 90[74] The worker’s testimony and his wife’s letters refuting that the closure of his retail storewas not at all emotionally difficult for him and that his job in the factory was initially verygratifying is at odds with the reporting of his treating physicians. Clinical notes obtained by theBoard from Dr. Wolder indicate that on November 30, 2004, the worker presented with thefollowing complaints:His business has failed and he feels very depressed working in a factory.Giving him supportive therapy.He has worked for himself all his life and now is faced with this problem.Also has a great deal of stomach pains.[75] In his initial consultation report dated December 10, 2004, Dr. Swamy reported:According to [the worker].he has been feeling stressed out and depressed for the last 3months or so. He said it all began when he sold his business incurring with some lossprior to seeking a factory job.[76] We do not accept the worker’s testimony or his wife’s letters that the closure of hisbusiness after 20 years had absolutely no adverse affect on his mental health, let alone a positiveeffect on him. To reach such a conclusion would require a finding that the history provided in thereporting of his family doctor of 22 years and the history provided in the reporting of his treatingpsychiatrist were somehow defective. We find it more likely than not that the worker’s familydoctor and psychiatrist were quite competent in accurately recording his presenting history and14

Page: 15 Decision No. 113/09that the worker’s subsequent identification of comments from co-workers as the sole cause of hispsychological disability is not entirely accurate.[77] We hasten to add, however, that even if we rejected the histories provided by professionalmedical doctors and accepted without reservation the worker’s attribution of cause to the twocomplaints about his body odour, we would nevertheless reach the same conclusion that theworker does not have entitlement under the WSIA and Board policy for a psychologicaldisability.[78] We accept the interpretation of harassment and traumatic events in Decision Nos. 620/08and 3022/07. Not all forms of harassment are compensable. Entitlement may be allowed whencircumstances from an objective perspective are very serious and involve at least an implicitthreat to personal security. The facts of this case do not lead to a finding that, pursuant to Boardpolicy, the worker was the object of threats of physical violence or harassment that include thethreat of physical violence. We cannot find that a reasonable person would consider the bodyodour incidents traumatic within the meaning of the WSIA or Board policy. Applying theaverage worker test widely adopted in Tribunal jurisprudence, we cannot find that even if aworker of average mental stability might perceive the workplace events (being accused of havingbody odour) to be mentally stressful, a worker with average mental stability would be at risk ofsuffering a disabling mental reaction to such events.2009 ONWSIAT 243 (CanLII)[79] Other Tribunal decisions considered similar appeals involving the psychological effectson a worker accused of having body odour. However, the facts of each of these cases arematerially different from the facts in the present case because in these cases other events at workwere found to be contributing factors, not just comments about body odour.[80] In Decision No. 952/89 (January 24, 1991), a Panel of the Tribunal found that the workerwas entitled to temporary total disability benefits from August 26, 1985 to October 17, 1985 onthe basis that he suffered a personal injury by accident arising out of the course of hisemployment. In that case, the worker was criticized by a foreman for poor work habits as well asa lack of personal hygiene. However, it was the worker’s testimony in that case that his inabilityto keep up with the demands on a production line likely contributed to the generation of remarksmade from co-workers about his body odour. The facts in Decision No. 952/89 are different inimportant respects from the facts in the present appeal in that the worker experienced increasingpressure from co-workers as a result of his inability to keep up with production requirements. Inaddition, Decision No. 952/89 was issued prior to the enactment of the WSIA. The Panel inDecision No. 952/89 was not required to apply Board policy, including OPM Document#15-03-02 and was not applying subsections 13(4) and (5) of the WSIA. After the enactment ofthe WSIA on January 1, 1998, the Tribunal is bound to apply Board policy. As noted above, wedo not find that the worker is entitled to compensation under Board policy in this case.[81] In Decision No 778/95 (February 18, 1999), a Panel of the Tribunal granted the workerentitlement for an emotional reaction to workplace events caused by his disability. That case isdistinguishable from the present appeal because the Panel found that the worker “reactedreasonably in finding that co-workers and a supervisor had committed acts of racial and religiousdiscrimination against him” including an allegation that he had body odour. There were a15

Page: 16 Decision No. 113/09number of racial and religious slurs, in particular an incident in which the worker was given asnowball with the letters KKK engraved on it. The Panel noted:Given that the worker’s reaction to these occurrences of racial and religiousdiscrimination were partially identified as the cause of his emotional disability…weconclude that these occurrences were a significant contributing factor to the worker’sdisability.[82] We note that the Panel in Decision No 778/95 was not bound to apply Board policy as thehearings for that case began prior to the passage of the WSIA or subsections 13(4) and (5) of theWSIA. In any event, that case is distinguishable from the present appeal because that workerwas the object of a number of “reprehensible” acts of racism by co-workers—not simply theobject of a complaint about body odour.[83] In Decision No. 871/99 (September 16, 2003), a Panel of the Tribunal granted the workerentitlement for a psychological condition which disabled her from working as ofJanuary 25, 1993. In that case, the worker was the object of harassment by her immediatesupervisor including criticism of her work, interference with the worker’s ability to do her job,demeaning the worker in public and misleading management about the worker’s performance.The Panel expressly found in Decision No. 879/99 I2 (February 18, 2000), that there was noBoard policy on chronic stress prior to January 1, 1998 within the meaning of section 126 of theWSIA. Thus, the Panel in Decision No. 871/99 was not bound by the obligation of this Panel toapply relevant Board policy under subsections 13(4) and (5) of the WSIA. In any event, thatcase is distinguishable from the present appeal because the worker was subjected to many typesof harassment by her immediate supervisor including criticism of her work, interference with herability to do her job, demeaning comments in public and misleading information given tomanagement about her work performance.2009 ONWSIAT 243 (CanLII)[84] In summary, the worker in this appeal was accused of having body odour on twooccasions. He was not implicitly or explicitly subjected to a threat to his personal security froman objective perspective. He does not meet the average worker test widely applied in Tribunaljurisprudence for entitlement. His case is not supported by Tribunal case law that has consideredentitlement for mental stress under the WSIA. He does not meet the legislative or policy criteriafor entitlement.2. Is the worker entitled to 100% LOE benefits beyond February 2, 2007 or, in thealternative, partial LOE benefits based upon his ability to work less than 30 hours perweek at minimum wage?[85] LOE benefits are determined by reference to section 43 of the WSIA. It reads, in part:43. (1) A worker who has a loss of earnings as a result of the injury is entitled topayments under this section beginning when the loss of earnings begins. The paymentscontinue until the earliest of,(a) the day on which the worker’s loss of earnings ceases;(b)(c)the day on which the worker reaches 65 years of age, if the worker was less than63 years of age on the date of injury;two years after the date of the injury, if the worker was 63 years of age or olderon the date of the injury;16

Page: 17 Decision No. 113/09(d)the day on which the worker is no longer impaired as a result of the injury.[86] Payment of benefits is contingent upon specific requirements described in section 43(3)and (4):(3) The amount of the payment is 85 percent of the difference between his or her netaverage earnings before the injury and any net average earnings the worker earns after theinjury, if the worker is co-operating in health care measures, and(a) his or her early and safe return to work; or(b) all aspects of a labour market re-entry assessment or plan(4) The Board shall deem the worker’s earnings after the injury to be the earningsthat the worker is able to earn from employment or business that is suitable for theworker under section 42 and is available and,(a) if the worker is provided with a labour market re-entry plan, the earnings shallbe determined as of the date the worker completes the plan; or(b) if the Board decides that the worker does not require a labour market re-entryplan, the earnings shall be determined as of the date the Board makes the decision. 2007,c. 7, Sched. 41, s. 2 (2).[87] Additionally, subsection 43(7) states:2009 ONWSIAT 243 (CanLII)43(7) The Board may reduce or suspend payments to the worker during any period whenthe worker is not co-operating,(a) in health care measures;(b) in his or her early and safe return to work; or(c)in all aspects of a labour market re-entry assessment or plan provided to theworker.[88] As noted above, OPM Document #19-03-04, “Labour Market Re-entry (LMR) –Entitlement to LMR Plans” applies to this case. This policy states that the Board must haveregard for a worker’s rights under the Ontario Human Rights Code. The policy states that theBoard considers “any non-work-related disability, handicap or condition a worker may have” informulating a LMR plan.[89] In applying the thin-skull rule, Tribunal decisions have found that pre-existing conditionssuch as they were at the time of the injury must be considered in determining a LMR plan andwage loss benefits. Tribunal decisions have found that non-compensable conditions that occurafter a compensable injury and non-compensable conditions that develop before a compensableinjury, but progress independently of the compensable injury after the compensable injury, arenot considered when determining a worker’s entitlement to wage loss benefits. This approachwas succinctly described in Decision No. 1287/01 (October 11, 2001). Although the benefits atissue in that case were Future Economic Loss (FEL) benefits governed under the pre-1997Workers’ Compensation Act, the analysis, in our view, is equally applicable to the provision ofLOE benefits under the WSIA. A similar conclusion was reached in Decision No. 300/07(May 31, 2007). The Vice-Chair in Decision No. 1287/01 stated:If post-accident, non-compensable changes render the worker totally disabled and unableto participate in any vocational rehabilitation program, the worker will generally receive17

Page: 18 Decision No. 113/09a FEL award based on the earnings the worker would probably have been able to earn butfor the non-compensable, post injury changes.. . .A pre-existing condition that becomes worse after the accident will be treated in the sameway as a new non-compensable problem that arises after the accident. In both situations,the worker has become disabled by non-compensable problems that have arisen after theinjury.[90] In this case, there is a strong temporal nexus between the onset of the worker’s bilateralwrist impairment and the development of a psychological disability, which this decision hasfound to be non-compensable. The worker testified that he developed symptoms in his fingerswithin the first few weeks of being hired by the accident employer on September 29, 2004.However, the Board has determined an accident date of January 10, 2005 for the worker’sdisablement. The medical evidence clearly indicates that the worker developed a psychologicaldisability before the accident date determined by the Board.2009 ONWSIAT 243 (CanLII)[91] What is important in our view is that the worker was not totally disabled by hispsychological disability at the time of the accident date for his bilateral hand disability, whenLMRS were offered and when the LMR plan was formulated. We note that the worker wascapable of attending half-day classes and successfully completed all but one course in the GED.We acknowledge that the worker’s psychological disability interfered with his ability toparticipate in LMRS from the outset and ultimately it was his non-compensable psychologicaldisability that led to his withdrawal from LMRS. However, the LMR provider expressly statedin the report of February 6, 2007, that the SEB was chosen to provide the worker with the leastamount of stress and maximum amount of flexibility in the learning environments so that hecould “ease…back into the workforce through a work placement”. In our view, the LMR planclearly took into consideration the worker’s psychological disability as it existed at the time ofthe LMR plan[92] The medical evidence before us indicates that the worker’s non-compensablepsychological disability worsened and rendered him unemployable as of February 2, 2007. Inhis report of January 20, 2007, Dr. Swamy opined:In my professional opinion, [the worker] suffers from a serious psychiatric disorder andhe is not gainfully employable nor is he able to go to school to complete is credits. Idon’t think he is able to undertake any active rehabilitation program.[93] The worker’s compensable bilateral wrist disabilities have not been identified in theavailable medical evidence as a significant contributing factor to the worker’s inability to workand no such argument has been raised at the Tribunal hearing.[94] In determining the worker’s entitlement to LOE benefits beyond February 2, 2007, wenote that in his decision of August 27, 2007, the ARO concluded that the worker’s LOE benefitsought to be based upon, “potential earnings of minimum wage over a 30 hour work week”. Hedid not expressly state how the worker’s compensable condition or whether the worker’snon-compensable condition factored into his analysis.[95] Subsection 43(1) of the WSIA states that LOE benefits are paid to a “worker who has aloss of earnings as a result of the injury”.18

Page: 19 Decision No. 113/09[96] With respect to the worker’s compensable condition, we note that the worker’s physicalcapabilities were described in the February 6, 2007 LMR report following a Functional AbilitiesEvaluation (FAE). These were as follows:A workday tolerance is between 7 and 8 hours, the client is capable of sitting or standingfor up to six hours, for one-hour durations, and walking for 3 or 4 hours for moderatedistances; lifting is limited to loads weighing 10 kg or less on an occasional basis (lightrange); stooping, squatting, crawling, stair climbing, crouching and kneeling on anoccasional basis. Neck postures can be assumed on a frequent basis; grip strength is lowbilaterally; aggravating factors include repetitive grasping and pinching and firmsqueezing; he has the ability to complete firm grasping with either hand on an occasionalbasis only and simple and fine grasping on a frequent basis; the client requires a job inwhich he can alternate hands, and have a variety of handling requirements; aboveshoulder reaching with either hand is limited to a frequent basis or less.[97] As noted above, a SEB objective of “Service Adviser (NOC 1453)” was recommendedand an alternative SEB of Customer Service Representative – Financial Services (NOC 1453).We note that the worker completed all but one course in the GED. We note that the worker had20 years experience in the retail industry as an owner/manager. Descriptions of the SEBobjectives in the Case Record indicate that the duties are clerical in nature including answeringtelephones, providing information to customers, processing applications and investigatingcomplaints.2009 ONWSIAT 243 (CanLII)[98] In our view, the SEB objective of Service Adviser (NOC 1453) and the alternative SEBof Customer Service Representative – Financial Services (NOC 1453) are well within theworker’s physical abilities. There is no indication that the worker’s bilateral wrist impairmentsprevented him from working in the SEB objective on a full-time basis. But for the worker’spsychological disability, there is no indication that he would not have successfully completed theLMR plan and successfully integrated back into the labour market.[99] However, the worker’s psychological disability was a non-work-related disability at thetime of the injury to his hands and at the time of the formulation of the LMR plan and limited hisability to return to the labour market in full-time employment. At the time of the injury to hishands and of the formulation of the LMR plan, the worker was not totally disabled by hispsychological disability. On this point, we note again that the worker was able to attend half-dayclassroom training. We note the worker’s testimony that he experienced significant sleepdisruption at night and that he tended to sleep “three-to-four” hours during the daytime.[100] Given the impact of the worker’s non-compensable psychological disability at the time ofthe injury and LMR plan, we are satisfied that the worker is entitled to LOE benefits based uponminimum wage in a 20 hour work week because he was only able to tolerate half-days ofclassroom training. In our view, this determination equitably reflects the worker’s loss ofearnings resulting from the compensable condition and taking into account his non-work-relatedpsychological disability at the time of the LMR plan.19

Page: 20 Decision No. 113/09DISPOSITION[101] The worker’s appeal is allowed, in part.[102] The worker does not have entitlement for a psychological disability. The worker isentitled to LOE benefits after February 2, 2007, based upon an ability to earn minimum wage ina 20 hour work week.DATED: January 28, 2009SIGNED: S. Ryan, B. Wheeler, K. Hoskin2009 ONWSIAT 243 (CanLII)20

ONTARIO LABOUR RELATIONS BOARD1509-10-M City of Hamilton, Applicant v. United Brotherhood of Carpenters andJoiners of America, Local 18, Responding Party.BEFORE: Lee Shouldice, Vice-Chair.APPEARANCES: Richard J. Nixon, Lora Fontana, Gerry Davis and Tatha Swann for theapplicant; Harold F. Caley and Glenn Morrice for the responding party.DECISION OF THE BOARD: December 7, 20102010 CanLII 77074 (ON LRB)1. This is a Ministerial reference filed with the Board pursuant to section 115(1) of theLabour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”). The Minister seeks theopinion of the Board as to whether he has the authority to appoint conciliation officers withrespect to the renewal of two collective agreements that expired on April 30, 2010.2. The relevant section of the Act for the purposes of answering the Minister’s questionis subsection 18(2) of the Act, which reads as follows:Despite the failure of a trade union to give written notice under section 16 orthe failure of either party to give written notice under sections 59 and 131,where the parties have met and bargained, the Minister, upon the request ofeither party, may appoint a conciliation officer to confer with the parties andendeavour to effect a collective agreement.3. The City of Hamilton (“the City”) and the United Brotherhood of Carpenters andJoiners of America, Local 18 (“Local 18”) are signatories to a collective agreement covering theheavy engineering sector of the construction industry (“the heavy engineering agreement”) andto a collective agreement covering the residential sector of the construction industry (“theresidential agreement”). The most recent collective agreements both had an expiry date of April30, 2010. Each collective agreement contains an automatic renewal clause which provides thatthe agreement will renew for three years unless either party provides written notice to bargainwithin (in the case of the heavy engineering agreement) the 60 day period prior to April 30, 2010or (in the case of the residential agreement) within a period of no more than 120 days and not lessthan 30 days before April 30, 2010.4. Lora Fontana, the Director, Employee and Labour Relations of the City, testifiedregarding the relevant events from March, 2010 to July, 2010. The evidence establishes that onApril 1, 2010, the President & Business Representative of Local 18, Bob Yakiwchuk, left avoicemail message for Ms. Fontana indicating that “three years were coming up” and that hewanted to set dates for bargaining for both the heavy engineering and residential agreements. Ms.Fontana returned his message the next day but was unable to connect with Mr. Yakiwchuk.5. On April 9, 2010, Mr. Yakiwchuk left a further message for Ms. Fontana on hervoicemail. He indicated in this message that he and his team were available to meet on the

- 2 -Tuesday and Thursday of the following week. In the course of leaving his voicemail message,Mr. Yakiwchuk advised Ms. Fontana that Local 18 was seeking to increase the wage rates in boththe heavy engineering and residential agreements from 85% of the rates contained in theCarpenters’ Provincial ICI Agreement to 90% of those same rates. Mr. Yakiwchuk indicated inhis message that this was the only amendment to the collective agreements that Local 18 wasseeking. He also indicated that he did not believe that there would be a long round of collectivebargaining given the minor amendments sought for the collective agreements.6. Ms. Fontana testified that at some point between April 9, 2010 and April 30, 2010, shecalled Mr. Yakiwchuk and spoke with him. It appears to have been relatively soon after April 9,2010, because during this call (which Ms. Fontana estimated to be between 5 and 7 minutes induration) Ms. Fontana advised Mr. Yakiwchuk that she and her bargaining team were notavailable on the dates he had proposed. During the course of this discussion, Mr. Yakiwchukreiterated to Ms. Fontana that Local 18 was seeking to raise the wage rate in the two collectiveagreements from 85% of the rates contained in the Carpenters’ Provincial ICI Agreement to 90%of those rates, and that in his opinion bargaining would not take long.2010 CanLII 77074 (ON LRB)7. The evidence establishes that the parties did meet face-to-face to bargain on June 11,2010 and on June 30, 2010. On the latter date, the City proposed, for the first time, to eliminatethe subcontracting clauses contained in both the heavy engineering agreement and the residentialagreement. As one might anticipate, that proposal was not warmly embraced by Local 18.Bargaining quickly came to a halt.8. Shortly thereafter, the City requested from the Ministry of Labour the appointment oftwo conciliation officers, one for each of the heavy engineering agreement and the residentialagreement. Local 18 subsequently asserted that the City’s requests were untimely because thecollective agreements had by their terms renewed on April 30, 2010. The City asserted that theMinister had the authority to appoint the conciliation officers pursuant to subsection 18(2) of theAct, and Local 18 disagreed. The Minister thereupon referred that issue to the Board.9. There is no dispute that before April 30, 2010 neither party gave written notice to theother in accordance with the collective agreement or pursuant to sections 59 and 131 of the Act.Accordingly, for the purpose of determining whether subsection 18(2) of the Act applies, thecritical question is whether the parties at any time before April 30, 2010 “met and bargained” forthe purposes of that subsection of the Act. In my view, they did.10. In Danver Ambulance Service Inc., [1985] OLRB Rep. June 833, the Boardconsidered the scope of the words “met and bargained” in what was at that time subsection 16(2)of the Act. In that case, the employer had spoken to a union staff representative by telephone andindicated that if the union were prepared to negotiate two, one-year agreements together, theemployer was prepared to give a 5% wage increase automatically with respect to the first year.The union staff representative refused the employer’s offer and advised that there were otherissues to be dealt with in that agreement.11. The Board stated the following, at paragraph 17 of its decision:17. The phrase "met and bargained" in section 16(2) has not been the subject ofmuch comment by the Board. In Adath Catering, supra, the Board found that, on thefacts, the parties had satisfied the standard. (Parenthetically, it is appropriate to note thatthe collective agreement in question had an automatic renewal clause but the parties hadinitially met and bargained before the expiry of the contract. The parties' conduct post-

- 3 -expiry was found to be consonant with continuation of that bargaining.) Conversely, inDryden, supra, the Board found the parties had not "met and bargained"; the employerhad simply made unilateral and ex gratia offer of an unspecified wage increase (andanother item). The Board does not intend to here set out an extensive analysis of thestandard in section 16(2). However, the Board is of the view that "met and bargained"need not necessarily involve a "face-to-face" meeting provided a person authorized tobargain for one party tables a clear offer on one or more issues to be negotiated to aperson authorized to bargain for another party. In the instant case, Monsen, chiefnegotiator for the employer, made a monetary proposal to Gardner, the unionrepresentative. The Board does not consider that the offer was any less an offer becausethe contact was via the telephone. Monsen did not place his offer on a "withoutprejudice" basis. To be sure, it is more usual perhaps for the parties to meet across abargaining table, often in "teams", and table extensive proposals in writing. As noted, theBoard does not consider it appropriate or necessary in this case to set out a definitivestatement on the standard in section 16(2). In these, circumstances, though, the Board isof the opinion that the parties met and bargained in December 1984, with respect to the1985-6 collective agreement. Because the parties' conduct in late Fall 1984 was relied onby the union in its argument, the Board considers it appropriate, although not essential, toinclude the comments in this paragraph in responding to the Ministerial reference.(emphasis added)2010 CanLII 77074 (ON LRB)I agree with this analysis. It was a persuasive analysis of the words “met and bargained” in 1985and, given the exponential development of technology over the past 25 years, it is that much morepersuasive today. There are many different possible ways to meet and bargain that do not requirephysically meeting face-to-face. Accordingly, there is no reason why the words “met andbargained” should be interpreted to mean only a face-to-face meeting, as long as a person who isauthorized to bargain for one party makes a clear offer to a person who is authorized to bargainfor the other party.12. Here, the circumstances are very similar to those arising in Danver Ambulance. Mr.Yakiwchuk clearly had the authority to bargain on behalf of Local 18. During their discussion inApril, 2010 Mr. Yakiwchuk tabled an offer on an issue to be negotiated to Ms. Fontana, who wasthe lead bargaining representative on behalf of the City and its most senior human resourcesrepresentative. The offer was clear, and it was made without prejudice. Although the offer madeby Mr. Yakiwchuk was not rejected as in the Danver Ambulance decision, it is not the rejectionthat establishes the advent of bargaining, it is the making of the offer that does so.13. Counsel for Local 18 argued that there was a qualitative difference between the offermade in Danver Ambulance and the offer made by Mr. Yakiwchuk in the instant proceeding,which counsel characterized as not bargaining. Counsel for the City submitted that this was adistinction without a difference. I agree. In both instances the party making the offer has clearlyindicated what it wants or what it is prepared to give. As noted above, it is the placing of a clearoffer onto the table that matters. Here, Mr. Yakiwchuk put a clear offer onto the table.14. I conclude that the City and Local 18 “met and bargained” during the five to sevenminute conversation between Ms. Fontana and Mr. Yakiwchuk held during April, 2010.15. Counsel for Local 18 noted during argument that in all of the materials filed with theBoard and with the Ministry of Labour there was no mention by the City of this five to sevenminute conversation. Ms. Fontana acknowledged during her testimony that she reviewed thosesubmissions for accuracy before they were filed. Counsel for Local 18 submitted that theinference could be drawn from the absence of any reference to the conversation that the City didnot perceive the conversation to constitute circumstances wherein the parties had “met and

- 4 -bargained”. Counsel also asserted that Ms. Fontana had acknowledged during her testimony thatthe June 11, 2010 meeting was the parties’ first bargaining session.16. With respect to the absence in the materials filed with the Ministry of Labour and theBoard of any reference to the five to seven minute conversation with Mr. Yakiwchuk, there doesnot appear to be any dispute regarding the factual accuracy of that conversation. The testimonyoffered by Ms. Fontana on this point was given without objection and was not contradicted. Inthat regard, Mr. Yakiwchuk was present in the hearing room throughout the day and he did nottestify on behalf of Local 18.17. With respect to the assertion regarding the characterization by Ms. Fontana of theJune 11, 2010 meeting date, counsel for the City stated that his notes did not reflect that Ms.Fontana made such an acknowledgement. Both counsel quite properly agreed that my noteswould govern the disagreement on this issue. I have reviewed my notes very carefully and findno such reference by Ms. Fontana. However, the absence of such a reference in my notes doesnot really end this argument, because City’s requests for the appointment of conciliation officersfiled with the Ministry have the same characteristic – the City notes that the parties met andbargained on June 11, 2010 and June 30, 2010, and makes no reference any phone messages or adiscussion between Mr. Yakiwchuk and Ms. Fontana in April, 2010. Likewise, the writtensubmissions filed by the City make reference at one point to bargaining having commenced onJune 11, 2010.2010 CanLII 77074 (ON LRB)18. The real question is whether the absence of a reference to the conversation in thematerials filed by the City and these other references to June 11, 2010 ought to lead to theconclusion that the parties did not meet and bargain in April, 2010 because the City did notperceive the April, 2010 conversation to constitute meeting and bargaining. I do not believe thatsuch a conclusion can be reached in the circumstances of this proceeding. This same issue arosein the Danver Ambulance case, where the Board noted, at paragraph 7, that counsel for theemployer in reply argument expressed his scepticism at the union’s position that what is nowsubsection 18(2) of the Act had been satisfied “in view of the union’s statement on the applicationfor a conciliation officer appointment that the parties had not held any negotiating meetings”.19. The Board did not find that argument to be persuasive in Danver Ambulance. I do notfind it persuasive here. What laypersons (even laypersons with a long labour relationsemployment background such as Ms. Fontana) perceive to be significant for the purpose of theAct and what is legally significant for the purpose of the Act often do not align. As a result, thelegal theories adopted by a party in any given proceeding may tend to change over the course oftime. In fact, the documents filed with the Board by Local 18 and the ultimate position taken byit at the hearing reflect that same tendency – its assertion that there was no collective bargainingin June, 2010 was not pursued at the hearing.20. Even if Ms. Fontana did not perceive her phone call with Mr. Yakiwchuk to have hadany legal significance before or during July and August, 2010 when the pleadings and othermaterials were prepared and filed with the Ministry of Labour and with the Board, the Boardought not to just ignore the substance of the phone call and the legal effect of that call. As notedabove, there was no objection made when Ms. Fontana testified regarding her April phone callwith Mr. Yakiwchuk. Mr. Yakiwchuk was not called as a witness by Local 18, and thereforethere can be no assertion that the testimony offered by Ms. Fontana on this question wasinaccurate.

- 5 -21. I find that the prerequisites for the application of subsection 18(2) of the Act to thecircumstances of this proceeding are present. In light of that conclusion, it is not necessary todeal with the other arguments raised by the City at the hearing.22. Accordingly, I advise the Minister of Labour that he does have the discretion to makethe requested appointment of conciliation officers with respect to the renewal of the heavyengineering agreement and the residential agreement that expired on April 30, 2010, pursuant tosubsection 18(2) of the Act.“Lee Shouldice”for the Board2010 CanLII 77074 (ON LRB)

ONTARIO LABOUR RELATIONS BOARD0069-07-G International Brotherhood of Electrical Workers, Local 353, Applicant v.Black & McDonald Limited, Responding Party v. The Electrical Trade BargainingAgency of the Electrical Contractors Association of Ontario, Intervenor No. 1 v.International Brotherhood of Electrical Workers Construction Council of Ontario,Intervenor No. 2.BEFORE: Harry Freedman, Vice-Chair and Board Members John Tomlinson and Alan Haward.APPEARANCES: Elizabeth M. Mitchell, John Chapman and Perry Speranza for the applicant;Scott Thompson, Nadine Dostrovsky and John Higginson for the responding party; ScottThompson, Nadine Dostrovsky, Eryl Roberts and Bob O’Donnell for Intervenor No. 1; ElizabethM. Mitchell and John Pender for Intervenor No. 2.2010 CanLII 58144 (ON LRB)DECISION OF THE BOARD; October 8, 20101. This grievance referral to the Board for determination under section 133 of the LabourRelations Act, 1995, S. O. 1995, c. 1, as am. (the “Act”) arises from the layoff of a journeymanelectrician (the “Grievor”) who at the time of the layoff was over 50 years of age. The applicantcontends the layoff violated section 706 of the Principal Agreement between the two intervenors(the “Principal Agreement”) by which both the applicant and responding party are bound.2. Section 706 of the Principal Agreement provides:Where five (5) or more Journeymen are employed, every fifth (5 th )Journeyman shall be fifty (50) years of age or older, where available.The responding party, as one of its defences to the grievance, asserted in a motion to dismiss thegrievance that section 706 is illegal because it is contrary to the Human Rights Code, R.S.O.1990, c. H. 19 as am. (the “Code”) by expressly discriminating among employees in respect oftheir employment because of their age. The responding party also had claimed not only wassection 706 contrary to the Code and therefore void, the applicant had failed to assert a primafacie case and finally, section 706 was not violated when the Grievor was laid off.3. The applicant in response to the preliminary motion asserting section 706 was voidbecause it was contrary to the Code submitted section 706 is not discriminatory within themeaning of the Code and even if it was discriminatory, that provision provides a benefit to adisadvantaged group, namely construction tradespeople 50 years of age and older and is permittedby section 14(1) of the Code as a special program for that disadvantaged group. The applicantalso argued the responding party is estopped from raising the alleged illegality of section 706because of its conduct during collective bargaining and because it does not have status to assertdiscrimination on behalf of its employees.

- 2 -4. The applicant quite properly acknowledged from the outset that section 706distinguishes between employees on the basis of their age by giving those individuals 50 years ofage and older a preference in respect of maintaining employment with their employer. There canbe no doubt when an employer bound by the Principal Agreement is reducing its workforce ofjourneymen electricians, those employees 50 years of age and older have greater protection fromlayoff because of their age when compared with journeymen electricians under the age of 50.The applicant asserts despite it giving a preference to workers based on their age section 706 isnot discriminatory within the meaning of the Code, but even if it is, the provision is not contraryto the Code because it benefits a disadvantaged group and is explicitly permitted by section 14 ofthe Code.5. The estoppel issue raised by the applicant as a defence to the preliminary motionmade by the responding party can be dealt with succinctly. In respect of the estoppel argumentbased on what took place during collective bargaining, the agreed statement of fact filed by theparties stated at paragraphs 6 and 7:2010 CanLII 58144 (ON LRB)The language of article 706 has not changed since it was initially negotiatedas article 704 in the first province-wide Principal Agreement between theparties, which was effective from May 5, 1978 until April 30, 1980.During the recent negotiations for the renewal of the Principal Agreementthe ETBA [intervenor no. 1] took the position that article 706 should bedeleted from the Principal Agreement because it is inconsistent with andcontravenes the Ontario Human Rights Code. The IBEW-CCO [intervenorno. 2] rejected this proposal and as a consequence article 706 remains in thePrincipal Agreement.The Board also heard testimony about the parties’ collective bargaining from John Pender, theexecutive secretary treasurer of intervenor no. 2, the applicant’s bargaining agent. Mr. Penderwas involved in the last round of bargaining. He testified that section 706 has been in thePrincipal Agreement since 1978. He said there were two attempts by intervenor no. 1 to have iteliminated over that time, once in the late 1990’s and once again in the last round of bargaining in2007. Both attempts were unsuccessful. Mr. Pender also said a proposal had been made by hisside of the table to lower the ratio which was also not accepted. In cross-examination heacknowledged the employer side had taken the position in bargaining that section 706 was illegalbecause it was contrary to the Code and should be removed. Mr. Pender could not recall therebeing a suggestion from the employer side during bargaining that they would consider languagerequiring them to abide by the Code. He did say he remembered taking the position that as far ashe was concerned, there was a clause in the agreement that was legal and there was no reason toremove it. Mr. Pender also made it clear in his cross-examination that the union side was notprepared to consider any changes to the language of section 706.6. The position taken by the employer in bargaining was section 706 was illegal and theunion side was aware of that. There was nothing in the evidence before us to suggest either sideeither explicitly or implicitly agreed with the other’s view of the legality of that section. Theposition taken by intervenor no. 2 that it would not consider any changes to section 706 of thePrincipal Agreement in negotiations suggests to us there was no detrimental reliance by theapplicant when the employer side did not pursue the issue any further in bargaining. Simply put,the legality of the clause was raised in bargaining by the employer side. The union side took theposition it was legal and would not change the language and neither side wished to take that issueany further. In other words, status quo continued and it appears to us the parties in bargainingsimply agreed to disagree over whether section 706 was contrary to the Code.

- 3 -7. We also do not accept the applicant’s assertion the responding party does not havestatus to raise the alleged illegality of section 706 as a defence because it is not affected by thediscrimination and cannot assert discrimination on behalf of its younger employees. Theresponding party is not seeking redress for discrimination. Rather it is asserting the provision iscontrary to the Code because it requires an employer bound by the Principal Agreement todiscriminate between employees with respect to their employment because of their age.8. The responding party is bound to the Principal Agreement which contains what it saysis a provision that violates the Code. In our view, the responding party is not asserting a right forunnamed third parties but rather is raising a legal defence to a claim that it violated that section ofthe Principal Agreement. We believe the responding party has standing to assert section 706 isillegal because complying with it would cause the responding party to infringe an individualemployee’s rights under the Code if in selecting which of two employees were to be laid off, itchose to lay off an employee only because he or she was under 50 years so that it would maintainthe employment of another employee who was 50 years of age or over. (See sections 5(1) and 9of the Code). Therefore, we are prepared to consider the arguments made by the responding partyconcerning the legality of section 706 of the Principal Agreement. We find the responding partyhas standing to make the argument and the applicant has failed to establish the responding party isestopped from asserting section 706 is void because it is contrary to the Code.2010 CanLII 58144 (ON LRB)9. Before the Board considers whether section 706 is a special program to benefit adisadvantaged group the Board must first determine whether section 706 requires an employer todiscriminate against its employees by reason of their age contrary to section 5 of the Code.Section 5(1) of the Code provides:Every person has a right to equal treatment with respect to employmentwithout discrimination because of race, ancestry, place of origin, colour,ethnic origin, citizenship, creed, sex, sexual orientation, age, record ofoffences, marital status, family status or disability.Section 5(1) of the Code establishes that every person “has a right to equal treatment with respectto employment without discrimination because of…age”. Section 9 of the Code provides:No person shall infringe or do, directly or indirectly, anything that infringesa right under this Part.In addition, regard must be had to the relevant definitions in section 10(1) of the Code. Section10(1) provides in part:In Part I and in this Part,“age” means an age that is 18 years or more;“equal” means subject to all requirements, qualifications and considerationsthat are not a prohibited ground of discrimination;In our view, section 15 of the Code is also relevant to this issue. Section 15 provides:A right under Part I to non-discrimination because of age is not infringedwhere an age of sixty-five years or over is a requirement, qualification orconsideration for preferential treatment.

- 4 -Section 5 is in Part I of the Code. Therefore the definitions of “age” and “equal” in section 10apply to the interpretation of sections 5 and 15.10. The applicant contends the preference given to journeymen electricians who are 50years of age or older is not discriminatory within the meaning of the Code. It submits there arelegitimate and acceptable reasons for that provision which is designed to assist older employeesto maintain their employment. The applicant submits when interpreting the Code it is necessaryto look at the overall objective the differential treatment is designed to achieve. In this case, theapplicant submits there can be no doubt section 706 of the Principal Agreement attempts toaddress the disadvantages older workers in the construction industry face in trying to maintaintheir employment in that industry.11. The applicant’s argument relies to some degree on the Board taking administrativenotice that journeymen electricians who are 50 years of age and older are subject to losing theiremployment based, at least in part, because of their age. It says section 706, by providing abenefit or preference to certain workers because of their age is nevertheless not contrary tosection 5(1) of the Code because there is a bona fide laudable purpose for that differentialtreatment.2010 CanLII 58144 (ON LRB)12. That argument was accepted by the Board in Gilmar Electric Inc., [1990] OLRB Rep.Jan. 20. The Board in that case dismissed the argument of an employer in a certificationapplication that an affiliated bargaining agent bound by the Principal Agreement could not becertified because the Principal Agreement contained provisions that were contrary to the Code.The employer in that case relied on what is now section 15 of the Act.13. In Gilmar Electric Inc., the Board held that what is now section 706 of the PrincipalAgreement was not contrary to the Code. In doing so the Board wrote at page 24:13. … In our view, these provisions of the collective agreement do notdiscriminate against any person because of any ground of discriminationprohibited by the Code, within the meaning of sections 13 and 48(1)(b) ofthe Act. We agree with and adopt the decision of the Supreme Court ofCanada in Andrews v. Law Society of British Columbia, (1989), 56 D.L.R.(4 th ) 1 (S.C.C.) that not every distinction or differentiation between thetreatment of groups or individuals amounts to “discrimination”14. In our view, the words “discriminate” and “discrimination” containtheir own inherent limits. As stated in Andrews, supra and certainly in thecontext of sections 13 [now 15] and 48(1)(b) of the Act, we must also look towhether there is a discriminatory effect as a result of these provisions.15. The effect of the impugned provisions of the collective agreement areto provide some accommodation, security, recognition and assistance tothose members of the trade who have spent many of their years employed inthe trade. The purpose and effect of the provisions are not motivated by anymalice or based on any invidious reasons. Indeed, the purpose and effect ofthe provisions are reasonable and laudable and were negotiated for sound,cogent labour relations and proper purposes. There is no evidence to suggestthat the provisions have caused any adverse or improper effects. We noteparenthetically that it is the respondent employer and not any individualemployee complaining that these provisions of the collective agreement arediscriminatory.

- 5 -16. Finally, we note that the provisions have been in existence for manyyears and appear to be well accepted, not only by the trade union but equallyby the designated employer bargaining agency with whom the trade unionnegotiates.14. The Board’s reliance on the analysis adopted by the Supreme Court of Canada inAndrews did not indicate it had considered that the Court in that case was dealing with theinterpretation of section 15(1) of the Canadian Charter of Rights and Freedoms [Part I of theConstitution Act, 1982, (Canada Act 1982, U.K. 1982, c. 11, Schedule B)] (the “Charter”) whereboth sections 1 and 15(2) of the Charter had an impact on the discrimination analysis developedby that Court. In our view, different considerations apply to the proper interpretation of the Code.15. It seems to us that to interpret the words “discriminate” and “discrimination” ashaving their own inherent limits would require the Board to ignore the normal and ordinarymeaning of those words. The Code itself recognizes that conduct which is “discriminatory” onthe basis of a prohibited ground is not necessarily contrary to the Code. The Code in section 14specifically accepts that certain kinds of conduct which would otherwise be discriminatory arenevertheless permitted if they are a “special program designed to relieve hardship or economicdisadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equalopportunity or that is likely to contribute to the elimination of the infringement of rights underPart I.” In addition, sections 11 and 17 of the Code establish that certain limits do exist whenassessing whether conduct that might appear to infringe a right in Part I through the concepts ofreasonable and bona fide requirements or qualifications and by providing the Code is not violatedwhen an individual is unable to perform or fulfill the essential duties or requirements associatedwith the exercise of the right with reasonable accommodation. And finally, in relation to thespecific issue of age discrimination, regard must be had to section 15 of the Code which clearlydemonstrates the legislature’s acceptance that preferential treatment on the basis of age, when thatage is 65 years or more, while discriminatory, does not infringe an individual’s rights under theCode.2010 CanLII 58144 (ON LRB)16. In our view, section 706 clearly requires an employer to consider whether ajourneyman electrician is 50 years of age or older when determining whether that employee canremain at work when there is a layoff. Since that clause provides for preferential treatment on thebasis of age the journeymen electricians covered by the Principal Agreement do not receive equaltreatment with respect to employment without discrimination. Moreover, an employer bound bythe Principal Agreement, in order to comply with the Principal Agreement, would directlyinfringe a right set out in section 5 of the Code and therefore be acting contrary to section 9 whenit used a journeyman’s age to determine who would be laid off and who would be retained inemployment.17. We therefore find, before considering whether section 706 of the Principal Agreementis saved by section 14 of the Code, section 706 requires an employer bound by the PrincipalAgreement to discriminate among employees with respect to their employment by reason of theirage.18. The applicant submits section 706 of the Principal Agreement, because it benefitsconstruction industry workers 50 years of age and older, is permitted by section 14 of the Code.The applicant contends section 706 exists to assist or relieve the hardship or economicdisadvantage faced by that group. The applicant argued the Board should take administrativenotice of the fact persons 50 years of age and older face significant difficulties in obtaining and

- 6 -remaining employed, particularly in the construction industry. The applicant relies on thefollowing statement of the Supreme Court of Canada in Law v. Canada (Minister of Employmentand Immigration), [1999] 1 S.C.R. 497 in which the Court at paragraph 101 wrote:It seems to me that the increasing difficulty with which one can find andmaintain employment as one grows older is a matter of which a court mayappropriately take judicial notice. Indeed, this Court has often recognizedage as a factor in the context of labour force attachment and detachment. Forexample, writing for the majority in McKinney, supra, [McKinney v.University of Guelph, [1990] 3 S.C.R. 229] La Forest J. stated as follows, atp. 299:Barring specific skills, it is generally known that persons over 45 havemore difficulty finding work than others. They do not have the flexibilityof the young, a disadvantage often accentuated by the fact that the latterare frequently more recently trained in the more modern skills.Similar thoughts were expressed in Machtinger v. HOJ Industries Ltd.,[1992] 1 S.C.R. 986, at pp. 998-99, per Iacobucci J., and at pp. 1008-09, perMcLachlin J., regarding the relevance of increased age to a determination ofwhat constitutes reasonable notice of employment termination.2010 CanLII 58144 (ON LRB)19. The responding party disputed the applicant’s attempt to have the Board takeadministrative notice journeymen electricians 50 years of age and older, in the context of acollective agreement with a hiring hall, face the same sort of obstacles to obtaining andmaintaining employment the Court suggested exist for older persons. The responding partyargued construction industry collective agreements containing hiring hall and apprenticeshipprovisions together with the fact that electrician journeymen are highly trained and skilledtradespeople all have to be considered when assessing whether the Board should takeadministrative notice of a fact which it disputes.20. The applicant, in the alternative to its argument about the Board taking administrativenotice of the facts on which it wished to rely, filed detailed statistical evidence to provejourneymen electricians 50 years of age and over face real obstacles in maintaining employmentand require the contractual preference provided by section 706 to address the disadvantages theysuffer due to their age. The applicant provided statistical evidence about the paid hours ofmembers of Local 353 to show that those journeymen electricians over the age of 50 hadapproximately two to three weeks less work per year than those under age 50 in order to provethose electricians who are the beneficiaries of section 706 are a disadvantaged group. Theapplicant also provided evidence that newly organized employers had employed far fewerelectricians who were 50 years of age or older compared to employers who have been bound bythe Principal Agreement for many years.21. The responding party disagreed with the conclusions the applicant asked the Board todraw from the evidence of the hours paid relied on by the applicant. The responding party arguesthe evidence relating to the newly organized employers does not demonstrate that olderelectricians who are members of Local 353 and work for contractors bound by the PrincipalAgreement have difficulty in getting work and remaining at work without the benefit of aprovision like section 706.22. The responding party points out the unorganized contractors do not participate in ajoint apprenticeship program and without a hiring hall must hire employees “from the street”.While unorganized employers may not be employing many electricians 50 years of age and over,

- 7 -it contends the non-union sector of the construction industry has no bearing on whether theemployees of contractors bound by the Principal Agreement who are 50 years of age and olderconstitute a disadvantaged group. First, those contractors obtain employees through a hiring halland are involved in a joint apprenticeship program. Secondly, the responding party, relying onanother report prepared by Toronto Electrical Industry Benefit Administrative Services Ltd.(“TEIBAS”), points out that the distribution of work between apprentices 50 years of age andolder and apprentices under 50 years of age is relatively equal, suggesting that age is not a factorwhen it comes to employing electricians. (Section 706 of the Principal Agreement only applies tojourneymen. Apprentices 50 years of age and older do not benefit from section 706.) It arguesthe distribution of work among apprentices shows age is not a relevant factor in an employer’sdetermination of whom it will employ and to whom it will assign work. Thirdly, the respondingparty points out statistical evidence relied on by the applicant is not hours worked but hours paid,which includes overtime hours. It suggests journeymen electricians 50 years of age and oldermay be more reluctant to accept overtime assignments and may take more vacation time thanyounger journeymen. Finally, the responding party argues the statistical difference between thehours paid of journeymen electricians over and under 50 years of age is not particularly material,especially when compared to the distribution of hours among apprentices.2010 CanLII 58144 (ON LRB)23. The responding party also argued taking judicial notice that older journeymenelectricians are a disadvantaged group would simply reinforce the applicant’s stereotyping ofolder workers generally. It contends older experienced journeymen electricians are often valuedby employers for their reliability, skill and knowledge. Moreover, it argues the statistical reportprovided by TEIBAS clearly shows the average number of hours paid to apprentices who are 50years of age and older compared with those under 50 years of age employed by contractors boundby the Principal Agreement are relatively equal.24. The statistical evidence contained in the TEIBAS report provided the followinginformation about hours worked by apprentices:Average Number of Hours Paid to Apprentices Per CapitaYEAR AVG. HRS 50 and over AVG HRS under 502003 1479.14 1475.222004 1446.60 1435.952005 1476.50 1450.212006 1549.57 1489.042007 1449.81 1393.35The TEIBAS statistical report for that same period for journeymen showed a different pattern ofhours worked for journeymen who do get the benefit of section 706 of the Principal Agreement:Average Number of Hours Paid to Journeymen Per CapitaYEAR AVG. HRS 50 and over AVG HRS under 502003 1823.14 1887.052004 1601.17 1767.362005 1696.50 1803.532006 1702.40 1840.742007 1609.31 1692.50

- 8 -The difference between the paid hours of journeymen who are 50 years of age and older andthose who are under 50 over the five year period ranged from approximately 64 hours in 2003 to166 hours in 2005. Over that five year period the average difference in the paid hours of ajourneyman electrician 50 years of age and over compared with a journeyman electrician under50 years of age was approximately 112 hours a year.25. While the difference in the average hours worked by the two categories of journeymenelectricians is significant, we remain uncertain whether that difference can be ascribed tosystemic age discrimination as the applicant suggests in view of the opposite result in respect ofapprentice electricians. Moreover, since section 706 of the Principal Agreement does not apply toapprentices and there is nothing the parties pointed to that suggested there was some other reasoncompelling contractors to employ apprentices who are 50 years of age or older rather thanapprentices who are under 50, we are simply not satisfied a journeyman’s age has a materialimpact on that individual’s employment with contractors bound by the Principal Agreement.26. We are sensitive to the concerns expressed by the applicant about seeking to protectolder construction workers. The responding party argues the applicant’s position is based onassumptions and stereotypes about older construction workers and their employers. Theresponding party submits the applicant’s argument in essence is that experienced, skilled andproductive journeymen electricians who happen to be 50 years of age and older require someprotection from lay off simply because of their age.2010 CanLII 58144 (ON LRB)27. The Board is not prepared to perpetuate that stereotype. In that regard, we refer to thefollowing passage from the Policy on Discrimination Against Older Persons Because of Ageissued by the Ontario Human Rights Commission at section 5 – Employment:Assumptions and stereotypes about older workers are unfortunately all tooprevalent in our workplaces. Older workers are often unfairly perceived asless productive, less committed to their jobs, not dynamic or innovative,unreceptive to change, unable to be trained or costly to the organization dueto health problems and higher salaries. These ideas about older workers aresimply myths that are not borne out by evidence. In fact, there is significantevidence that older workers:• are highly-productive, offering considerable on-the-job experience;• do as well or better than younger workers on creativity, flexibility,information processing, accident rates, absenteeism and turnover;• can learn as well as younger workers with appropriate training methodsand environments;• do not fear change but rather fear discrimination.Aging is a highly individual experience and it is not possible to generalizeabout the skills and abilities of a person based on his or her chronologicalage, any more than it is possible to make assumptions about someone basedon any Code ground.As a general principle, older workers should be treated as individuals,assessed on their own merits instead of presumed group characteristics andoffered the same opportunities as everyone else in hiring, training andpromotion. They should be subjected to the same performance management

- 9 -practices as every other worker. Age, including assumptions based onstereotypes about age, should not be a factor in decisions about lay-off ortermination. [emphasis added]28. We are not prepared to take administrative notice that journeymen electricians 50years of age and older who are employed by contractors bound by the Principal Agreement are adisadvantaged group, nor are we persuaded to make that finding based on the evidence presented.29. In any event, we are not persuaded section 706 of the Principal Agreement constitutesa special program within the meaning of section 14(1) of the Code. Section 14 of the Codeprovides, in part:(1) A right under Part I is not infringed by the implementation of a specialprogram designed to relieve hardship or economic disadvantage or toassist disadvantaged persons or groups to achieve or attempt to achieveequal opportunity or that is likely to contribute to the elimination of theinfringement of rights under Part I.2010 CanLII 58144 (ON LRB)(2) A person may apply to the Commission for a designation of a programas a special program for the purposes of subsection (1).(8) In a proceeding,(a) evidence that a program has been designated as a special programunder this section is proof, in the absence of evidence to thecontrary, that the program is a special program for the purposes ofsubsection (1); and(b) evidence that the Commission has considered and refused todesignate a program as a special program under this section isproof, in the absence of evidence to the contrary, that the programis not a special program for the purposes of subsection (1).(10) For the purposes of a proceeding before the Tribunal, the Tribunal maymake a finding that a program meets the requirements of a specialprogram under subsection (1), even though the program has not beendesignated as a special program by the Commission under this section,subject to clause (8) (b).The applicant did not suggest that section 706 of the Principal Agreement had ever beensubmitted to the Ontario Human Rights Commission for designation as a special program. Theapplicant relies on section 14(1) of the Code and asks the Board to exercise the power undersection 48(12)(j) of the Act to make a determination as if the Board was the Human RightsTribunal of Ontario acting pursuant to section 14(10) of the Code.30. The applicant referred to Broadley v. Steel Company of Canada, Inc., (1992), 15C.H.R.R. D/408 in which a Board of Inquiry determined that a provision in the Stelco collectiveagreement conferring an extended vacation entitlement on some employees but denying it toother employees because of their age was a special program within the meaning of what is nowsection 14 of the Code. The Code at the time the Broadley case was determined permitted theCommission to inquire into whether the collective agreement provision in issue met therequirements of what is now section 14 of the Code to be considered a special program “upon acomplaint in respect of which the protection of subsection 1 is claimed”. In other words, it wasopen to a responding party to a complaint under the Code alleging age discrimination to assert as

- 10 -a defence that its discriminatory action was permitted because it was a special program within themeaning of section 14 of the Code.31. The applicant contends it was not necessary to apply to the Commission for adesignation that section 706 constitutes a special program. Rather, it submits the Board in thisproceeding is capable of making that determination and should find section 706 constitutes aspecial program within the meaning of section 14 of the Code.32. Although the Board is not the Human Rights Tribunal of Ontario, it does have thejurisdiction to interpret and apply the Code pursuant to section 48(12)(j) of the Act and in thecourse of doing so may determine, by applying section 14(10) of the Code, whether section 706 isa special program within the meaning of section 14(1).33. The Commission has developed policy guidelines to assist the parties in developingprograms that meet the requirements of section 14(1) of the Code. In our view, those policyguidelines provide some indication of what conditions a program must meet in order to bedesignated by the Commission as a special program and are, for that reason, a relevantconsideration when determining whether a program, policy or contractual provision is a specialprogram within the meaning of section 14(1). It appears to us section 706 of the PrincipalAgreement may well be lacking in that regard. If section 706 would not satisfy the Commission’sguidelines for designation as a special program we believe the Board should be reluctant to find itis.2010 CanLII 58144 (ON LRB)34. In order to be a special program section 706 must be “designed to relieve hardship oreconomic disadvantage or to assist disadvantaged persons or groups to achieve or attempt toachieve equal opportunity or that is likely to contribute to the elimination of the infringement ofrights.” In making that determination, it is, in our view, important to appreciate the applicant isasserting section 706 of the Principal Agreement constitutes the entirety of the special program.35. There is no dispute that section 706 only applies when employers are determiningwhich journeymen will be laid off. Section 706 does not require the applicant to provide anypreference to journeymen 50 years of age and older when it dispatches journeymen from thehiring hall. In other words, journeymen electricians are dispatched from the hiring hall withoutregard to their age, but when an employer is reducing the number of journeymen electricians inits employ, it must have regard to the age of its journeymen when determining who will be laidoff.36. The Commission’s Guidelines on Special Programs that were in effect at the time thegrievance was filed have some bearing on our determination. Section 6 of the Guidelines is titledWhat Should Special Programs Look Like. Section 6.1 which deals with eligibility criteria states,in part:Care should be taken to ensure that the program does not unreasonablyrestrict who will benefit, especially when the restrictions might beconsidered to be “discriminatory” under the Code. There should be arational connection between any restrictions in eligibility and the purpose ofthe special program itself.We observe in that regard that the section 706 does not apply to apprentices 50 years of age andolder. We also note no explanation was provided for selecting 50 years of age as the demarcationfor the group who benefit from that provision. Restricting the benefit to persons 50 years of age

- 11 -and older appears, in the absence of an explanation, to be a restriction based solely on age, whichis a prohibited ground. Moreover, section 706 is not a consideration when journeymen aredispatched through the hiring hall.37. We accept the purpose of section 706 is to provide some measure of protection toolder journeymen from a loss of employment due to their age. In order to be a special program,the applicant must first demonstrate that journeymen electricians 50 years of age and older are atsome disadvantage by reason of their age when it comes to remaining employed. It has not doneso. In any event, even if “older” journeymen electricians are a disadvantaged group, there wasnothing presented to the Board to justify journeymen who are 50 years of age getting theprotection of section 706 while journeymen who are 49 years of age do not. In other words, sincesection 706 on its face is restricted to persons 50 years of age and older the applicant, in order topersuade us it is a special program, needs to provide a “rational connection between anyrestrictions in eligibility and the purpose of the special program itself.” Simply put, there wasnothing presented to us to demonstrate why the restriction in section 706 was fixed at 50 years ofage.2010 CanLII 58144 (ON LRB)38. The Board accepts it is the applicant’s intention to provide some greater security inemployment to older journeymen electricians through section 706 of the Principal Agreement.Nevertheless, section 706 of the Principal Agreement clearly does differentiate between twoclasses of employees in relation to their employment on the basis of age and therefore infringesthe rights of one class of those employees. Since section 706 has not been designated by theCommission as a special program and the Board has not found it constitutes a special programwithin the meaning of section 14(1) of the Code we must conclude section 706 of the PrincipalAgreement is contrary to the Code.39. In the result, we find the responding party did not violate the Principal Agreementwhen it laid off the Grievor because it cannot be compelled to engage in conduct contrary tosection 9 of the Code.40. The preliminary motion made by the responding party is allowed. The grievance filedby the applicant concerning the lay off of the Grievor must therefore be dismissed.“Harry Freedman”for the Board

L.S.T. Nos. 2266 & 22672011NSLST29IN THE MATTER OFTHE LABOUR STANDARDS CODE OF NOVA SCOTIABETWEEN:Allison Marchand-and-The Regional Occupational Centre Society- Complainant- Respondent2011 NSLST 29 (CanLII)RE:HEARING:Complaint of Allison Marchand - failure to comply with s. 72(1)(d) (termination ofemployment by employer), s. 71 (dismissal or suspension without just cause) and s. 34(vacation pay)August 12 and 13, 2010 and January 27 and 28, 2011 at Sydney, Nova ScotiaFOR THE COMPLAINANT:FOR THE RESPONDENT:FOR THE DIRECTOR OFLABOUR STANDARDS:Represented by Dennis JamesRepresented by Jasmine Walsh and Noella MartinRepresented by Dana MacKenziePRESIDING MEMBERS OF THE TRIBUNAL:E.A. Nelson Blackburn, Q.C. - ChairB. Tanner / A.R. Mitchell1. This is a complaint of failure to comply with Section 72(1)(d) (Termination of Employment byEmployer), Section 71 (Dismissal or Suspension Without Just Cause) and Section 34 (Vacation Pay)of the Labour Standards Code (Nova Scotia).2. On July 3, 2009, the Director of Labour Standards dismissed the Complainant’s claim forreinstatement and vacation pay and ordered the Respondent to pay to the Complainant a total amountof $36,489.60 representing 8 weeks pay in lieu of notice and reasonable notice less one month’s payfor failure to mitigate (subject to applicable statutory deductions).3. The Labour Standards Tribunal (Nova Scotia) received two appeals respecting the above notedmatter, from the Complainant on July 10, 2009 (LST-2266) and from the Respondent on July 16,2009 (LST-2267). The Complainant’s appeal relates to the Director dismissing his claim forreinstatement under Section 71 of the Labour Standards Code.4. The Tribunal decided to consolidate and hear both appeals at the hearing as the factual situation wasthe same.5. The Tribunal has used pseudonyms for the names of the Respondent’s clients in this decision.

FACTSRESPONDENT’S EVIDENCEAndrea MacEachern6. Andrea MacEachern testified she was the vocational supervisor for the Respondent and as such wasinvolved in supervising staff, completing reports, payroll, scheduling, conducting staff meetings, anddealing with policy matters.7. Ms. MacEachern testified she has approximately 22 years of experience working in group homeswhich involved working with people with disabilities and she has taken courses in competency forpeople with learning disabilities and she also has been a house supervisor for a small options home.She testified she started work with the Respondent in 2007 and left her employment in November2008. She testified during the time she worked for the Respondent, she supervised a staff of seven,including the Complainant, and she oversaw both the Port Hawkesbury centre of the Respondent aswell as D’Escousse Centres.2011 NSLST 29 (CanLII)8. Ms. MacEachern testified the Respondent was established in the 1970s to train people with mentalhealth and intellectual disability issues, to become self-sufficient and independent, not only in theirdaily lives, but also in the workplace. She testified the Respondent’s building contained an upstairswhich had a kitchen with a bakery and some staff offices, together with the downstairs being thewoodworking shop where the clients obtained carpentry and related skills, all taught and supervisedby the Complainant.9. Ms. MacEachern testified the clients that were present at the time she worked at the home, were alladults who had varying degrees of physical and mental disabilities and many had low education andwere very vulnerable and relied on trust of the staff. She testified they either lived at home or ingroup homes and they all had deficiencies in cognitive and comprehensive abilities and basicallywere intellectually disabled. She testified they could not live independently and thus, they had to liveeither in a group home or at their family home.10. Ms. MacEachern testified some of the services provided by the Respondent were, making bakedgoods and selling them, lawn maintenance for agencies such as Nova Scotia Power, making highwaystakes for the Department of Transportation, which generated revenue for the Respondent. Shetestified in addition to overseeing the vocational trainers and counselors, she also supervised theSpecial Olympics and a Bowl-a-Thon. She testified the Special Olympics was a one day event inMay each year for all members of the Respondent, including staff, and it is held in Antigonish andconsists of athletic events such as long jump, running, swimming, lawn bowling, etc. She testifiedthe staff help with client’s activities, hygiene, lunch, and provide moral support. She testified it isvery significant for both staff and the clients to participate in this outing.11. Ms. MacEachern testified in 2008, it was mandatory for all staff to attend, and prior to that, shebelieved it was voluntary. She indicated prior to the event in May, she had many meetings with staff,including the Complainant, in attempting to organize the event.12. Ms. MacEachern testified in April 2008, the Complainant informed her in front of kitchen staff,Margaret MacIntyre and Natalie Hatcher, that he was not going to attend and he said this in a veryloud tone with an angry demeanor. She testified she told him that the Centre would be closed andhe would be paid for that day and he informed her he did not care if he lost a day’s pay. She testifiedhe did not show up for the Special Olympics and stated she wrote to the Complainant a letter datedJune 2, 2008, referred to in Exhibit R-1, Tab 10, advising him that as he did not show up for the

Special Olympics, she was giving him a letter of reprimand which would be put in his employee file.13. Further, Ms. MacEachern testified at a staff meeting on April 1, 2008, she advised staff of a Bowl-a-Thon for Saturday, April 26, 2008, and as it was a Saturday and staff only worked from Monday toFriday, they would get Friday off. She testified someone told her that the Complainant said he wouldnot attend and she subsequently talked to the Complainant, who informed her he would not attendthe Bowl-a-Thon and he expressed a very angry and aggressive attitude towards her and staff. Shetestified she told the Complainant to come to the office and to not speak in that tone to her, and hisresponse was that he should have been asked in private to attend the Bowl-a-Thon.14. Ms. MacEachern testified she wrote up the incident of April 1, 2008, Exhibit R-1, Tab 8, and saidas a result of the interaction with the Complainant, it was a verbal disrespect to her and he just didnot see the bigger picture of helping clients. She testified she believed the Complainant wasdisrespectful to the Respondent and she told her Executive Director, Diana Poirier of this whoverbally reprimanded the Complainant. She testified the Complainant did not show up for the Bowla-Thonalthough she conceded in the past it was not mandatory, however, it was important for theinteraction with the clients of the Centre to have this event.2011 NSLST 29 (CanLII)15. Ms. MacEachern testified she was advised of an event on March 27, 2008, when a client, CB, wassent home by the Complainant as she had a large cold sore on her mouth. She testified theComplainant asked her on March 27, 2008, whether he could send the client home and he indicatedto her it was common procedure and she indicated that if that was the case, then he could make thatdecision. She testified, however, it appeared the manner in which the Complainant dealt with thesituation caused the client, CB, to be quite upset and offended and she threatened not to come backto the Centre. She testified she apologized to CB and told her she would address the issue with theComplainant.16. Ms. MacEachern identified notes dated April 16, 2008, Exhibit R-1, Tab 9, she took and put in theComplainant’s file. She testified she did speak to the Complainant who denied doing anything wrongin the manner in which he informed CB that she should go home.17. Ms. MacEachern testified the Respondent is a community based, not-for-profit organization thathelps mentally challenged people with their personal and vocational training and the Respondent hasmany programs to train and employ clients to work in the community. She testified the Complainantreported to her as he was employed as a vocational trainer in the woodworking program and as such,he would teach clients woodworking skills such as carpentry and they made things such as picnictables for sale in the community as well as highway stakes for the Department of Transportation.18. Ms. MacEachern testified the Complainant also worked closely with the clients in teaching them theuse and safety of woodworking equipment to enable them to become independent. She testified theComplainant also trained the clients in lawn mowing techniques and the Respondent had contractsfor lawn mowing in the Port Hawkesbury area and they also picked up recycling and took it to theRecycling Depot. She testified all of this came within the provision of the Complainant’s supervisionof the clients. She testified, in addition the Complainant would accompany clients to a localswimming pool and provide assistance in the washroom and change rooms for the male clients. Shereferred to the Complainant’s job description in Exhibit Book C-1, Tab 28, pages 8 and 9.19. Ms. MacEachern also referred to the Respondent having policies and procedures to deal withdisciplinary matters and she testified a manual was provided to each employee, and policy 3:04:005entitled “Corrective Action” and policy 3:04:006 “Documentation of Corrective Action” referred toin Exhibit Book C-1, Tab 28, pages 10 to 12 respectively, and the Code of Conduct in the same Tabat page 13. She testified the Respondent’s progressive discipline involves three steps which are setout in the Corrective Action policy document, Exhibit Book C-1, Tab 28, page 11, as follows:

Written counselling - this is a written communication from the ExecutiveDirector/Designate to the employee who continues either not to adhere tostandards of conduct or who continues not to meet expected standards ofperformance. Generally, an employee will receive two writtencommunications before any other corrective action is applied. The secondcommunication may advise the employee of a suspension pending reviewfor termination.Suspension - (1) A suspension is a leave of absence without pay imposedupon a staff member who continues not to adhere to accepted standards ofconduct. (2) A suspension pending review for termination is given in orderto conduct an investigation and review of the facts to determine whether theemployee shall have an additional opportunity to improve behaviour orwhether the employee shall be terminated.Involuntary termination - this action is appropriate where:After oral and written counselling, an employee still cannot meet thestandards of performance expectedAfter oral and written counselling, the employee continues not to adhere toexpected standards of conductFollowing an investigation and review during a suspension period, thedecision is to terminate.2011 NSLST 29 (CanLII)In cases of serious misconduct or criminal activity, the ExecutiveDirector/Designate may suspend or terminate the employee withoutfollowing the progressive counselling and disciplinary procedure.20. Ms. MacEachern testified up until the complaint in July 2008, by CF, being a client of theRespondent, there were only two letters of reprimand on the Complainant’s file, namely a letter ofMarch 7, 2008, referred to in Exhibit Book C-1, Tab 28, page 14, being a letter from the ExecutiveDirector, Diana Poirier to the Complainant, whereby he signed a letter addressed to the Board ofDirectors suggesting Ms. Poirier was not doing her job properly. She testified the other letter ofreprimand was the one she signed and sent to the Complainant on June 2, 2008, Exhibit R-1, Tab 10,when the Complainant refused to attend the Special Olympics.21. Ms. MacEachern testified with respect to the issues leading up to the dismissal of the Complainantmainly arose out of a complaint from the Respondent’s client CF, an adult client of the Respondent,who informed two staff members, Tanya Bungay and Arlene Samson, at a private meeting on July2, 2008, that the Complainant threatened to hit him with a 2 x 4. She testified on the next day, July3, 2008, CF indicated other incidents involving the Complainant, such that the Complainant wouldpull on the collar of his shirt and threaten to hit him and others with a ruler and told them to bendover so he could hit them in the behind, cursing at them and telling them to ‘sit your arse down andbutton your lips’. Further CF said the Complainant grabbed the top of his arm hard and said ‘youare coming with me’ and she testified he had said these events had been happening for a long periodof time.22. Ms. MacEachern testified an initial documentation report was prepared on July 3, 2008, and signedby Tanya Bungay and Arlene Samson and also they obtained a signature of CF, as referred to inExhibit R-1, Tab 11.23. Ms. MacEachern testified at the time these incidents were related by CF, the Executive Director,Diana Poirier, was on maternity leave and she was the acting Director in Ms. Poirier’s place. She

testified this incident of abuse had to be investigated under the Corrective Action Policy referred toin Exhibit R-1, Tab 1A, where all physical and verbal abuse has to be reported. She testified shereported this to Diana Poirier on July 8, 2008, and she believed Ms. Poirier went to the VicePresident of the Board, Diane Snook, as the Chair, Tom Gunn, was away on vacation. She testifiedboth she and Diana Poirier went to D’Escousse on July 8, 2008, to talk to CF. She testified thesummary of the meeting of July 8, 2008, is as referred to in Exhibit R-1, Tab 12, at pages 7 to 14, andthe notes were later typed up by Diana Poirier and are referred to in Exhibit R-1, Tab 13.24. Ms. MacEachern testified the meeting with CF took between half to one hour and she believed hewas truthful in his statements. She testified he indicated to them that when the Complainant wasshaking the ruler and said ‘sit your arse down’ CC, CE, CI, CH and CD were all present. Shetestified, CF indicated this happened almost every second week and he indicated the Complainantwould put his fists up; however, he was not sure if he was joking or not, but he was afraid theComplainant was going to hurt him, and he was thinking about pressing charges against him.25. Ms. MacEachern testified CF was intellectually disabled, had cognitive problems, learningdisabilities and he lived in a small options home. She testified he embellishes things because hewants to be liked and is a jokester and is a big man and does have some violent tendencies. Further,she testified when she and Ms. Poirier met with him on July 8, 2008, he appeared agitated and afraid.2011 NSLST 29 (CanLII)26. Ms. MacEachern testified Diana Poirier read the abuse policy to CF as his allegation is somethingthat has to be reported. She testified following the meeting of July 8, 2008, she was asked by theExecutive Director to question those persons that CF named as witnessing some incidents of abuse;however, she could not confirm how much input Ms. Poirier had with respect to the questions thatshe made up. She identified Exhibit R-1, Tab 12, page 1, as being five questions that she made upto have answered when she met with the clients of the Centre that CF had named to support hisallegations. The questions that she drafted up were as follows:1. Has Allison ever cursed at you or someone else?2. Has Allison ever taken you or someone else by the arm or collarleading them somewhere?3. Have you ever felt threatened by Allison?4. Has Allison ever made you feel intimidated by waving a ruler or fist oryelling?5. Have you ever witnessed him doing this to someone else?27. Ms. MacEachern testified she did not have any experience in investigating such incidents before,especially dealing with mentally challenged adults. However, as she was asked to conduct aninvestigation as quickly as possible, she met with those clients that were mentioned by CF on July9, 2008 and their statements are referred to in Exhibit R-1, Tab 12.28. Ms. MacEachern testified with respect to all of the clients that she interviewed, she informed themshe was going to go over some questions with them as a result of CF filing a complaint against theComplainant and she wanted them to respond to the questions that she had prepared.29. Ms. MacEachern testified with respect to CE, she indicated he is an adult who has mental healthissues, is anxious, depressed, often hits himself regularly which is a form of self abuse. She testifiedshe met with him at his apartment and she indicated he can read a little and she got him to sign hisstatement referred to in Exhibit R-1, Tab 12, page 1.30. Ms. MacEachern testified with respect to CE’s answer to question 1 “has Allison ever cursed at youor someone else?” his response was that he did not remember. With respect to question 2 “hasAllison ever taken you or someone else by the arm or collar leading them somewhere”, his response

was ‘yes, CD, a while ago’. She testified she did not get him to elaborate as to when this happened,or whether the Complainant took him by the arm or collar and in what manner that was done. Withrespect to question 3 “have you ever felt threatened by Allison”, his response was ‘no’. With respectto question 4 “has Allison ever made you feel intimidated by waving a ruler or fist or yelling”, heresponded ‘no’. With respect to question 5, “have you ever witnessed him doing this to someoneelse”, he responded by saying, ‘he grabbed CD and took him upstairs’. He said that CD hit Allisonand Allison took CD by the arm upstairs and this incident happened before Diana Poirier wasemployed by the Centre. She testified she had CE sign to his answers as he could write his name.31. Ms. MacEachern identified Exhibit R-1, Tab 12, page 2, being a statement of CH who was in thesmall options home. She testified he is a person who tries to avoid conflicts, cries out a lot and hewanted the supervisor of the home to be present, Muriel Vincent, and they met in the parking lot inMuriel’s vehicle and she estimated the interview took approximately 20 to 30 minutes. She testifiedCH is an elderly man, intellectually challenged, has global disabilities and is a cousin to theComplainant.32. Ms. MacEachern testified she informed CH the reason for meeting with him was that CF had madea complaint against the Complainant and had indicated that he was present during some of theallegations.2011 NSLST 29 (CanLII)33. Ms. MacEachern testified with respect to CH, and question 1 “has Allison ever cursed at you orsomeone else?” his response was that ‘they were stripping wire and Mr. Marchand told them to getoff their big behinds and do something and called them lazy”. With respect to question 2 “hasAllison ever taken you or someone else by the arm or collar leading them somewhere”, his responsewas ‘no’. With respect to question 3 “have you ever felt threatened by Allison”, his response was‘sometimes’. She testified she never got him to elaborate on that as to when or why he felt that wayand there was no follow-up. With respect to question 4 “has Allison ever made you feel intimidatedby waving a ruler or fist or yelling”, he responded by saying ‘sometimes he shakes his fist at you’.Again, she testified she never asked him to elaborate on when this happened. With respect toquestion 5, “have you ever witnessed him doing this to someone else”, he responded by saying, ‘onetime he got angry with CD and he told CF to grow up, you are like you are in kindergarden and heshook a yard stick at CG; he said one day he was cutting wire and he believed he came along witha broom and CH asked Allison what if I cut CI with a knife and Allison said that would be your fault.I asked why and Allison got very quick with me’. She testified again, she did not get CH to elaborateon this. She testified she did not recall Muriel Vincent saying anything while CH was beinginterviewed; however on page 3 attached to the statement of CH, she indicated after the interview,she did speak to Muriel Vincent.34. Ms. MacEachern referred to Exhibit R-1, Tab 12, page 4, being a statement from CG who she saidcould not write and she had him print his name, and again she indicated to CG the reason she wantedto meet with him was as a result of a complaint being made by CF against the Complainant. Shetestified CG has down syndrome and does not read or write, and he is a likeable person. She said sheinterviewed him at Central Supplies while on his work break and the meeting took approximately 30minutes.35. Ms. MacEachern testified with respect to CG, and question 1 “has Allison ever cursed at you orsomeone else?” his response was ‘yes, he said to sit my arse down and gave orders loud to everyoneincluding CF and CD’. She testified she never asked him when these events happened and in whatcontext they were said. With respect to question 2 “has Allison ever taken you or someone else bythe arm or collar leading them somewhere”, his response was ‘he took CD by the collar and I seenit at the Centre before Diana Poirier started work’. She testified she did not get him to elaborate onthe circumstances surrounding this. With respect to question 3 “have you ever felt threatened byAllison”, his response was ‘no, only when he cursed at me’. Again she testified she never asked him

to elaborate. With respect to question 4 “has Allison ever made you feel intimidated by waving aruler or fist or yelling”, he responded ‘no’. With respect to question 5, “have you ever witnessed himdoing this to someone else”, he responded by saying, ‘yes, at CH’. Again, she testified she nevergot him to elaborate on that response.36. Ms. MacEachern testified with respect to CC, he was working at Walmart at the time that sheinterviewed him and she met him in her car for approximately 15 or 20 minutes. She testified CClives with his mother and helps take care of her and he works independently at Walmart and he hasthe highest degree of intellect among the clients at the Centre.37. Ms. MacEachern testified with respect to CC’s answer to question 1 “has Allison ever cursed at youor someone else?” his response was ‘yes, to CH when he told CH to shut his mouth’ With respectto question 2 “has Allison ever taken you or someone else by the arm or collar leading themsomewhere”, his response was ‘CD’. She testified she did not get him to elaborate on thecircumstances surrounding this. With respect to question 3 “have you ever felt threatened byAllison”, his response was ‘no’. With respect to question 4 “has Allison ever made you feelintimidated by waving a ruler or fist or yelling”, he responded ‘no’. With respect to question 5,“have you ever witnessed him doing this to someone else”, he responded by saying, ‘no’.2011 NSLST 29 (CanLII)38. Ms. MacEachern referred to Exhibit R-1, Tab 12, page 6, being a statement she took from CD. Shetestified CD lives in a small options home in Isle Madame, and she had approximately a 30 minutemeeting with him and he has attention deficit disorder and he gets very anxious, repeats what is onhis mind, gets very vulnerable and needs 24 hour care. Again, she testified she told CD that she wasmeeting with him as a result of a complaint filed by CF against the Complainant and that she wantedhim to answer some questions.39. Ms. MacEachern testified with respect to CD, and question 1 “has Allison ever cursed at you orsomeone else?” his response was ‘sometimes he uses the ‘f’ word as he cursed at CA and at him forno reason and screams at him’. With respect to question 2 “has Allison ever taken you or someoneelse by the arm or collar leading them somewhere”, his response was ‘at the pool, he grabbed himby the arm and shook and threatened him’. With respect to question 3 “have you ever felt threatenedby Allison”, his response was ‘yes’. With respect to question 4 “has Allison ever made you feelintimidated by waving a ruler or fist or yelling”, he responded ‘he yells at him and sometimes argueswith him in the truck’. With respect to question 5, “have you ever witnessed him doing this tosomeone else”, he responded by saying, ‘he shakes his fist at CH and yells at CH and CA gets upsetwith him also and he indicated if things do not change, he will not come back’.40. Ms. MacEachern initially stated as a result of the responses to her questions, there appeared to be aconsistency in the responses; however, on cross-examination, she admitted the answers were notconsistent among the five interviewees. She further conceded she never was asked to nor did she goback to reinterview any of the clients or CF for any elaboration on the circumstances surrounding theanswers to the questions.41. Ms. MacEachern testified she had no reason to believe that answers of the clients to her questionswere not truthful, however, she conceded she did not explore with the clients what the circumstanceswere surrounding the various incidents. She testified as a result of the responses to the questionnaire,she informed Diana Poirier who was on maternity leave that there should be a meeting with theComplainant and the Board to get his side of the story and she was asked to contact the Complainantfor a meeting on July 10, 2008, at 8:30 in the morning.42. Ms. MacEachern testified on July 9, 2008, she called the Complainant at his home and on his cell ashe had been on sick leave and she left a voice mail informing him to attend a meeting on July 10,2008, at 8:30 in the morning. She testified on July 10, 2008, she, Diana Poirier, Roy Smith and

Diane Snook from the Board waited for the Complainant to arrive for a meeting at 8:30 a.m. and hedid not show up. She testified she phoned him that morning and her notes of the telephone call to hishome are referred to in Exhibit R-1, Tab 15, but she made no contact with him. She testified the nextcontact she had with the Complainant was at 9:50 p.m. when the Complainant had left a message forher that he would not attend the meeting as the RCMP had come to his home. She acknowledged shedid not tell the Complainant on a voice message or subsequently, what the meeting was about. Shetestified she was aware as a result of the Complainant not showing up for the meeting on July 10,2008, Diana Poirier had written a letter to the Complainant suspending him with pay pendingcompletion of an internal investigation for his failure to show up at the meeting and that letter isreferred to in Exhibit R-1, Tab 14.43. Ms. MacEachern also identified a Notification of Incident report to Community Services which shesaid was in accordance with the policy, when there is an accusation of abuse, they have to notify thecommunity services support specialist for the region, and Exhibit R-1, Tab 16, was the report filedwhich indicated the RCMP were also notified in accordance with the policy.44. Ms. MacEachern further testified she was aware of a reprimand letter sent to the Complainantreferred to in Exhibit R-1, Tab 17, dated August 7, 2008, signed by Diana Poirier officiallyreprimanding the Complainant for not attending the meeting on July 10, 2008, and requesting himto meet with the Society on August 15, 2008. She testified that meeting did not take place and thenext meeting was on August 22, 2008, which was held at the Respondent’s lawyer’s office andpresent was the Complainant; his lawyer, Gregory MacIsaac; the Board’s lawyer, Lorne MacDowell,Q.C.; as well as Diana Poirier; Tom Gunn; and Diane Snook. She testified she does not recall theComplainant being shown the initial responses by the clients to her questions, but a summary wasindicated to him and he denied the allegations, however, he admitted putting CD over his shoulderto bring him upstairs. She testified the meeting lasted approximately 15 to 30 minutes. She testifiedafter that meeting, she had no further involvement with this matter as it was up to the Board ofDirectors to deal with the complaint.2011 NSLST 29 (CanLII)45. Ms. MacEachern testified the allegations made her sick as one cannot use physical force on clientsand you must use non-violent crime intervention of which the Complainant had training. Shereferred to Exhibit R-1, Tab 5, being a respectful work environment policy acknowledged by theComplainant in writing on January 3, 2008, whereby he agreed to treat every person with respect anddignity. Further, she referred to Exhibit R-2, being an excerpt from the Port Hawkesbury Reporterthat apparently the Complainant had commented about this case to a reporter which had a negativeimpact on the Respondent as a result of the Complainant’s remarks.46. Ms. MacEachern further testified she does not recall submitting any written report to the Board asa result of information received in Exhibit R-1, Tab 11, but the initial complaint is referred to as‘Issue Documentation’, but the incident report did go to the Board, but she did not recall any detailsof what was explained to the Board.47. Ms. MacEachern conceded she did not have any formal training in interviewing clients as she neverhad to deal with such matters before. She reconfirmed she drafted the questions and she never askedthe Executive Director or the Board for advice with respect to interview techniques. Further, shereaffirmed she did not ask any of the clients to elaborate on their answers to get further particularson the circumstances, times or dates of any happenings. She conceded CD was abusive of himselfand he often bites or hits himself. She conceded CF embellishes his answers. She conceded she wasnot aware that CD had previously bit and hit the Complainant and had pushed him while he wasoperating a saw. She further conceded at the time that she worked for the Respondent, she never sawany problems between the Complainant, staff or clients and she did not personally witness any of theallegations.

48. Ms. MacEachern acknowledged sending a Christmas card to the Complainant, referred to in ExhibitC-2 and making a remark to the Complainant as follows, “you have a lot of good qualities to offerto the ROC”. She testified she thought she was a friend of the Complainant, he was easy to talk to,was willing to help, very friendly and very good with the clients.49. Ms. MacEachern testified it was a beehive of activity between the woodworking area in the basementand upstairs and there was a constant flow of people going up and down, and if there were anyproblems, she would be aware of them. She also conceded with regard to the Special Olympics, theComplainant wanted to use his vacation day and not get docked a days pay and she testified it wasonly in 2008, that staff were expected to participate, and prior to that it was voluntary. She testifiedthis change was made by the Board of Directors and was discussed with staff approximately sixweeks before the Special Olympics. However, she conceded she did not know if it was a policy ofthe Board.50. Ms. MacEachern testified the Centre was a small group and if there were any problems, theygenerally all worked them out and there was no reference to a reprimand or negativity in the file ofthe Complainant prior to April 1, 2008.2011 NSLST 29 (CanLII)51. Ms. MacEachern further acknowledged the job performance reviews of the Complainant, ExhibitBook C-1, Tab 28, pages 42 to 45, which were done by the previous Executive Director, Kaye Isenor,in 2005 and 2007, were complimentary of the Complainant and she does not recall Diana Poirierrequesting to see the performance reviews. She testified the Complainant was very good with theclients and she was not aware that he would often approach businesses for contracts, but he was verygood in interacting with the clients in teaching woodworking, using saws, building stakes, strippingwire, etc., and safety issues.52. Ms. MacEachern conceded the statement that she wrote, Exhibit R-1, Tab 9, dealing with the incidentwith CB of April 16, 2008, was not in the Complainant’s personnel file and was not a reprimand.Further, she conceded when she called the Complainant on July 9, 2008, for a meeting on July 10,2008, she did not leave a message to indicate what the meeting was about and she had alreadycontacted the RCMP regarding the abuse allegations. She conceded she was never asked toreinterview the clients or put a report in the file. She testified she knew the RCMP were going toinvestigate the matter, but apparently the investigation broke off and she is not sure why, but shethought it was due to a limitation of time matter, but in any event, she was not aware of any chargeslaid as a result of any RCMP investigation.53. Ms. MacEachern further conceded with respect to the answers given by CG, that he does not readand she did not know what he was referring to with respect to question 5 and she does not knowwhether she explained what was meant by ‘fearful or intimidation’. She recalled defining what wasmeant by ‘threatening actions’. Further, she indicated with respect to Exhibit R-1, Tab 12, page 3,Muriel Vincent never said anything in the car while she was interviewing CH. She conceded manyof the answers and responses to the questions were different and several had no recollection of anyproblems with respect to the allegations of CF. She conceded in retrospect there were noconsistencies in the answers to the questions by the clients, and in many cases, there were mixedresponses and the meaning of the answers were not clarified.54. Ms. MacEachern conceded CF has emotional outbursts, is very volatile and he is no longer at theCentre as he had pulled a gas line away from the building and since that incident he has not beenback to the Centre. She testified she did not think he was charged with any offence as a result of thatincident.55. Ms. MacEachern conceded only she and Diana Poirier had met with CF on one occasion and sheassumed he was telling the truth of what he perceived to be a fear he had of the Complainant. She

further conceded Exhibit R-1, Tab 13, which was a summary prepared by Ms. Poirier of the eventsof the July 8, 2008 interview with CF, that the reference to ‘sit your arse down’ was never followedup as to what he meant. She testified CF liked working in the shop with the Complainant and sincethe incident, she did not speak to CF and she did not call his family and she testified the only timeshe saw any aggressive behaviour with the Complainant was when he did not want to go to the Bowla-Thonor Special Olympics and she said he had a lot of anger.56. Ms. MacEachern testified when she was hired by the Respondent, she was interviewed by DianaPiorier and the decision to hire her in the position of vocational trainer was the Board’s decision. Shetestified she did observe there was some friction in the workplace as Occupational Health and Safetyhad some concerns over the bread mixer which needed a safety guard and the issue was whether tocontinue with bread making or not and the staff showed some concerns. She said with respect to theso-called ‘bread letter’ that was signed by the Complainant, referred to in Exhibit R-1, Tab 6, shewas the acting Director at the time as Ms. Poirier was on maternity leave, and she knew there werefrustrations involved with respect to the workers in the kitchen. She testified she took the letter tothe Board after discussing it with Ms. Poirier and did not inform the staff that by signing the letterit was wrong to go to the Board instead of Ms. Poirier; however, Ms. Poirier thought there shouldbe a Board meeting to discuss if the Complainant and the others who signed the letter should bedisciplined over that matter.2011 NSLST 29 (CanLII)57. Ms. MacEachern conceded there were grumblings due to change in management when Ms. Poiriercame in 2007, as she replaced Kaye Isenor, and her style was somewhat different from Ms. Isenor’s.She testified she believed she was a go-between between the staff and the Board; however, she saidthe staff should have spoken to Ms. Poirier first, even though Ms. Poirier was on maternity leave andshe was the acting Director, and she felt she was caught in the middle.58. Ms. MacEachern testified with respect to the Issue Documentation of July 3, 2008, written up byTanya Bungay and Arlene Samson, referred to in Exhibit R-1, Tab 11, she did not inquire about thesubstance of the complaint at that time; however, she and Ms. Poirier decided the five clients referredto by CF should be questioned which resulted in the questions referred to in Exhibit R-1, Tab 12.She conceded she did not think about getting details of what happened to support the client’sresponses to the questions, nor the dates when the events happened. She further conceded CF hadanger management issues, embellished things, had anxiety issues, and was volatile. Further, sheconceded the responses and the details of the complaint, to her knowledge, were never given to theComplainant for his response, other than they had an arranged meeting on July 10, 2008, for whichhe did not show up. She conceded at the meeting with the Respondent’s lawyer in late August 2008,she does not recall the Complainant being given copies of the complaint or the responses to the fivequestions that she obtained from the clients of the Centre.Diana Poirier59. Diana Poirier testified she is the Executive Director of the Respondent and she was hired in 2007 toreplace Kaye Isenor, the former Executive Director. She testified she was on maternity leave fromDecember 2007 and she returned to regular work in September 2008; however from April 2008 onshe worked approximately 2 days a week, and she was basically on call for important matters relatingto the Centre.60. Ms. Poirier testified Andrea MacEachern filled in for her while she was on maternity leave. Shetestified she worked for the Board of Directors and there were 11 on the Board and Tom Gunn wasthe President and she dealt mainly with him.61. Ms. Poirier testified she worked and got along well with the Complainant. She testified when shewas hired as Executive Director, the Board of Directors decided there was a need to make a shift

from the clients at the Centre producing products for sale and more of an emphasis on training theclients. She testified there were meetings with staff regarding this emphasis change.62. Ms. Poirier testified soon after she became Executive Director, the Complainant and her had adiscussion with respect to his vacation time and she suggested a time for his vacation and he wassomewhat annoyed due to him wanting to take his vacation in the Fall to go hunting. However, shetestified there was no animosity with respect to this and it was just an ongoing discussion concerningvacation.63. Ms. Poirier testified she did not check the Complainant’s personnel file when she became ExecutiveDirector to look at performance reviews that were conducted by the previous Executive Director.She testified relations between her and the Complainant were fine until February 2008, when theComplainant signed a letter to the Board of Directors showing displeasure in how she was handlingthe bread program. She identified Exhibit R-1, Tab 6, as the letter signed by the Complainant alongwith others which she testified was disrespectful and contrary to the Board policy dealing with linesof communication referred to in Exhibit R-1, Tab 5, signed by the Complainant on January 3, 2008.She testified if the staff had any complaints, they should have come to her personally and not goneover her head to the Board of Directors.2011 NSLST 29 (CanLII)64. Ms. Poirier testified some of the baked goods were sold to a local Co-Op and the Co-Op was closingand she had spoken to the Superstore before she went on maternity leave and later the Superstoreindicated they made a business decision not to purchase the bread. In any event, she testified theemployees that signed the letter to the Board, went contrary to the respectful work environmentpolicy (Exhibit R-1, Tab 5) which provided, inter alia as follows:Lines of communication: Employees are encouraged and expected to bringany questions, concerns or grievances to their immediate supervisor. If theyare not satisfied with the response of their supervisor they are encouragedto speak to their supervisor’s immediate supervisor. If they are still notsatisfied with the response, they are to bring the issue, in writing to theChair of the Personnel Committee or the Board President.65. Ms. Poirier testified as a result of that letter (Exhibit R-1, Tab 6), she issued a reprimand letter to theComplainant dated March 7, 2008, referred to in Exhibit R-1, Tab 7. She testified she believed thecomments were damaging, disrespectful and untrue. She testified prior to writing the reprimandletter, she spoke with Tom Gunn, Chairman of the Board, and they thought a reprimand letter wasappropriate to put in his file.66. Ms. Poirier further testified with respect to the Bowl-a-Thon, she was off on maternity leave duringthat period of time, however, the Board of Directors expected everyone to attend. She testified shewas shocked when she was informed the Complainant would not attend. She testified there was nowritten reprimand with respect to the Complainant not attending, but he was verbally spoken to aboutit and she wrote up a summary to put in his file. She referred to written notes by Andrea MacEacherndated April 1, 2008, Exhibit R-1, Tab 8, in that regard and she conceded it was not a formalreprimand and she did not believe that was sent to the Complainant.67. Ms. Poirier testified with respect to the Special Olympics in 2008, it was important for all staff toattend the trip to Antigonish with the clients as they all had different challenges and they participatedin races and sports events, and it was important to not only ensure a good time, but to cover anyclients needs and assistance with meals, hygiene, etc. She testified staff were expected to attend asit was a policy the Board wanted enforced and the Board gave direction in that regard and sheexpected the staff to support it. She testified she does not recall speaking directly to the Complainantregarding the Special Olympics, but she assumed Andrea MacEachern would have done so. She

testified she subsequently found out the Complainant was upset and refused to go.68. Ms. Poirier testified she believed the Complainant not attending the Special Olympics to be adisciplinary matter and as a result a reprimand letter was given to the Complainant, Exhibit R-1, Tab10, signed by Andrea MacEachern on her behalf for his failure to participate.69. Ms. Poirier referred to the job description of the Complainant, Exhibit R-1, Tab 4, however, sheconcedes there is nothing specific in the job description that he has to attend the Special Olympics,but his job description does refer to ‘complete other duties from time to time that may be required’.She testified this was required by the Board of Directors.70. Ms. Poirier testified in July 2008, the Respondent received a complaint from CF, one of the clients,of abusive behaviour shown towards him by the Complainant and they needed to investigate theallegations. She referred to Exhibit R-1, Tab 11, being the Issue Documentation dated July 3, 2008,from Tanya Bungay also signed by Arlene Samson, indicating the allegations of abuse as told to themby CF who signed the form.2011 NSLST 29 (CanLII)71. Ms. Poirier testified both she and Andrea MacEachern met with CF on July 8, 2008, and she wrotea summary of the meeting with him referred to in Exhibit R-1, Tab 12, page 7, which she reducedto typewritten notes, Exhibit R-1, Tab 13. She testified in her notes of July 8, 2008, it indicated theComplainant was rude to CD, slamming lockers, stating ‘do you want to go back to the ROC Centre’all at a time when Kaye Isenor was the Executive Director. She testified CF also indicated theComplainant threatened to hit him with a 2 x 4 and he appeared to be fearful of the Complainant.She testified she showed the Complainant the abuse policy, Exhibit R-1, Tab 1C, and she called thepolice on that day in accordance with the policy to report the abuse and she met with the policeofficer in her office with Andrea MacEachern present and he indicated he would speak with theComplainant.72. Ms. Poirier testified as she was on maternity leave, she asked Ms. MacEachern if she would interviewall the clients that CF referred as supporting his claim of abuse. She referred to Exhibit R-1, Tab 12,as being statements from those clients of the Centre that Ms. MacEachern interviewed and theirresponses to a series of five questions prepared by Ms. MacEachern. She testified she was not sureif the questions were discussed with her; however, she thought the questions were appropriate.73. Ms. Poirier testified after she reviewed the responses to the questions, she was shocked as there wasconsistency among the clients, such as yelling, grabbing by the collar, etc. She testified it wasimportant to meet with the Complainant to get his side of the story and she asked Ms. MacEachernto call him for a meeting at 8:30 in the morning on July 10, 2008, at the Centre.74. Ms. Poirier testified she and Roy Smith, Diane Snook, and Ms. MacEachern awaited for theComplainant’s arrival on July 10, 2008, at 8:30 a.m. and at 8:50 a.m. Ms. MacEachern tried tocontact the Complainant and left a message. She testified as a result of the Complainant not showingup for the meeting, she issued a suspension letter pending a further investigation. She referred to aletter of July 10, 2008, Exhibit R-1, Tab 14, in that regard. She testified the suspension was with payand she was shocked that the Complainant did not show up for the meeting on July 10, 2008, toanswer the allegations and she still wanted to meet with him to get his side of the story.75. Ms. Poirier identified Exhibit R-4 as an excerpt from the Board meeting of July 22, 2008, where theBoard approved a letter of reprimand to be sent to the Complainant for not attending the meeting ofJuly 10, 2008. She referred to Exhibit R-1, Tab 17, being a letter that she wrote to the Complainantof August 7, 2008, as an official reprimand to him for failing to attend the meeting and requestinghis attendance at a Society meeting on August 15, 2008. She conceded, however, the meeting ofAugust 15, 2008 did not take place, but took place on Friday, August 22, 2008 at the office of the

solicitor for the Respondent, Lorne MacDowell, Q.C.. She testified also in attendance were AndreaMacEachern, Sharon Ryan of the Board, the Complainant, and his lawyer Mr. MacIsaac. Shereferred to an excerpt from the letter of their solicitor of August 26, 2008, Exhibit R-5, summarizingthe events from that meeting.76. Ms. Poirier testified, however, she does not recall the actual statements of the clients being shownto the Complainant. She recalled the Complainant denied the allegations of abuse. She testified,however, the Complainant did say he put someone on his shoulder, but that took place over 15 yearsago, which she said was not appropriate and is contrary to the training he would have received.77. Ms. Poirier testified the meeting that was held at Mr. MacDowell’s office on August 22, 2008, wasapproximately 30 minutes in length. She testified, however, upon review of the statements by theclients and from interviewing CF, she believed there was enough consistency in the responses toreveal an element of truth. However, she conceded she did not conduct any further investigationsor meetings with the clients to get any elaboration on dates or particulars with respect to theirresponses. Further, she conceded she did not observe any problems between the Complainant andclients and she observed that he appeared to have a good working relationship with everyone and itwas a busy Centre with a constant flow of people going upstairs and downstairs and she would haveseen or been aware of any problems, but nothing was brought to her attention.2011 NSLST 29 (CanLII)78. Ms. Poirier testified after the August 22, 2008 meeting with her lawyer, recommendations were madeto the Board and the Board decided to terminate the Complainant’s employment. She stated at themeeting at the lawyer’s office of August 22, 2008, she believed there was a summary of thecomplaint which she believed was given to the Complainant or his lawyer, as referred to in ExhibitR-1, Tab 18, summarizing some of the allegations.79. Ms. Poirier testified although she had not interviewed the clients, she had no reason to believe theywere not telling the truth. She testified she did not want the clients to give evidence at this hearingas they are very sensitive and some have psychological problems and she did not feel they should bepart of the process. She testified with respect to the notation in the Complainant’s file of a note datedJanuary 21, 2007, she did not see that letter before the Complainant was terminated, which waswritten by Ms. Vincent on behalf of CH, a client of the Centre, who was annoyed at the teasing bythe Complainant. She testified there was a response to that from Kaye Isenor, the Executive Directorat that time, and there did not appear to be any disciplinary issue with the incident. She testified thatletter did not factor into the reason for the termination of the Complainant and it was not in hispersonnel file.80. Ms. Poirier testified Exhibit R-6 was a letter from Mitch David, a supervisor to Kaye Isenor, aboutinteraction between CD and the Complainant. Again, she testified this was not in his personnel fileand she only found it recently and it did not factor into the reason for terminating the Complainant.Further, she testified she never contacted Ms. Isenor with respect to this letter, nor did she contacther with respect to Exhibit R-1, Tab 3, being a note from Ms. Vincent regarding concerns that CHhad with the Complainant dated January 21, 2007, nor Ms. Isenor’s note of January 24, 2007.81. Ms. Poirier conceded CH has a troubled background, as both parents are deceased and he is mentallychallenged and he focuses a lot on the negative. She conceded she does not know the circumstancesof the pulling of his suspenders and he may have been just pulling them to keep them up. Shetestified CH cries a lot and they try to focus on the positive with him and to do their best.82. Further, Ms. Poirier testified the RCMP investigated this matter and did not lay any charges,however, she believed this was due to a limitation of time issue to lay charges.83. Ms. Poirier testified the Complainant apparently spoke to a Port Hawkesbury newspaper, The

Reporter, and Exhibit R-2 is an excerpt from The Reporter which casts negative dispersions towardthe Centre and she testified this is contrary to the Code of Conduct, Exhibit R-1, Tab 1B.84. Ms. Poirier testified she has no reason to believe the Complainant was not trying to do his best withthe clients of the Centre. She conceded she did call the RCMP on or about July 8, 2008, with respectto this matter in accordance with the abuse policy.85. Ms. Poirier testified with respect to the abuse policy, she followed the procedures outlined in ExhibitR-1, Tab 1C, and she called the police before talking with the Complainant. She testified, however,she believed the RCMP had contacted the Complainant either on or before the July 10, 2008 meeting,and he was advised by his lawyer not to show up for the meeting, however, she does not recallreporting to the Board that he did not show up as he was already contacted by the RCMP. Sheconceded, in any event, she did issue to the Complainant a suspension letter of July 10, 2008,(Exhibit R-1, Tab 14) for failing to attend the meeting.86. Ms. Poirier further conceded the Board made the decision to reprimand the Complainant. However,she does not recall telling the Board regarding his reasons for missing the meeting on July 10, 2008.She believed it was in the evening of July 10, 2008, that the Complainant called Ms. MacEachern;however, before July 10, 2008, she never told the Complainant of the allegations. Further, sheconceded even after he failed to show up for the July 10, 2008 meeting, she did not send out copiesof the answers to the questions or the complaint of CF to the Complainant and she believes what wasgiven to the Complainant before the meeting of August 22, 2008, was the summary referred to inExhibit R-1, Tab 18, dated August 19, 2008, being a confidential summary of complaint preparedby the Respondent’s solicitor.2011 NSLST 29 (CanLII)87. Ms. Poirier conceded she issued the suspension letter of July 10, 2008, Exhibit R-1, Tab 14, to theComplainant for not showing up to the meeting of July 10, 2008, however, she still wanted to get hisside of the story. She conceded she chose not to interview the clients herself and she conceded someof the clients might have been taken away from their jobs when Ms. MacEachern met them in her carin the parking lot and she does not recall whether Ms. MacEachern told the clients CF’s allegationsbefore she took their answers to the questions.88. Ms. Poirier conceded neither her nor Ms. MacEachern are investigators and she did not get advicewith respect to questions to be presented to them. However, she believes the questions asked werereasonable for this investigation. She testified she did not believe there was any necessity to get anyfurther clarification with respect to the responses.89. Ms. Poirier conceded, however, CF embellishes things as he wants to be liked and after he hadremoved a gas line from the building, he never returned to the Centre. However, they did not chargehim with any offence and that incident took place after the termination of the Complainant. Shetestified CF is a big man and he had violent tendencies due to his disability and a lot of hisembellishment is due to wanting to be accepted.90. Ms. Poirier further conceded she never asked other staff members regarding CF as she believed thiswas a confidential matter and she did not want to involve others. She conceded other than theincidents that she mentioned, she never witnessed any problem with the Complainant includingswearing, threats, abusive behaviour toward clients or staff, and he appeared to be doing a good job.91. Ms. Poirier identified a Christmas card that she gave him, Exhibit C-4, in which she indicated his‘dedication to the Society and its members is easy to see. Thank you for all that you do’, and shetestified that was true as he was a dedicated employee and that card was given in December 2007.She testified for the period of time that she was employed by the Respondent up to then, theComplainant was a good employee and she had no issues with him. She testified the Complainant’s

performance reviews conducted by Kaye Isenor, Exhibit Book C-1, Tab 28, pages 42 and 43,indicated he was an excellent employee and she agreed with the evaluations that were done by KayeIsenor.92. Ms. Poirier conceded with respect to the answers to the questions, that references to whether theComplainant grabbed the arm or collar, was not clarified, nor were the dates the events happened orthe circumstances surrounding the events. She conceded CD is abusive, repeats everything and hassevere psychological problems. She testified she does not recall ever asking the Complainant aboutthe issue of CD being carried upstairs referred to in Exhibit R-1, Tab 12, page 1, which was severalyears ago and prior to her being Executive Director and she did not know these circumstances.93. Ms. Poirier testified with respect to the questions and the answers to the questions from the clients,the Board saw the statements, but the Complainant did not. She conceded the answers given by allthe five clients were not the same and there was no discussion with Ms. MacEachern in defining thewords such as ‘intimidation’ or ‘threats’ etc. or whether the clients fully understood. She testified,however, she believed the process was fair, notwithstanding the responses may have been differentand she did not request Ms. MacEachern to, nor did she herself, reinterview the clients to get moreparticulars.2011 NSLST 29 (CanLII)94. Ms. Poirier testified she was hoping the Complainant would have explained his side of the story ifhe had showed up for the meeting of July 10, 2008.95. Ms. Poirier conceded with respect to Exhibit R-1, Tab 6, the so-called bread letter that was signedby the Complainant as well as two other long term employees, she was told of that letter by AndreaMacEachern before the Board received it. Further, she testified she did not speak to them about theletter before it went to the Board, and she does not recall discussing with the Complainant any changefrom past practices such as the emphasis on spending more time training staff as opposed to sellingproducts and believed that should have been the focus in any event, however she did speak to staffabout this and it was largely well received.96. Ms. Poirier further conceded from when she started at the Centre around June 2007, and up to July2008, she had no real issues with the Complainant, as he was loyal, a good worker, good with clientsand staff. She conceded she was not on the Executive Committee of the Board when termination wasrecommended and she does not know if an alternative discipline approach was presented to theBoard.97. Ms. Poirier conceded they work in a small community and she did not give any reference letter, butthis should not have impaired the Complainant looking for a job. She testified, however, if anyonehad called she would have said he was no longer working there and she would not have given areference.98. Ms. Poirier conceded again she never witnessed the Complainant being threatening or aggressive toothers. She conceded this was her first experience in having to terminate a long term employee underthese circumstances and she conceded she had no investigative training in this regard.99. Ms. Poirier further testified with respect to Exhibit R-1, Tab 5, the Respectful Work EnvironmentPolicy, that was not in place before she started work with the Respondent and she believed it cameinto being in January 2008. She does not believe she had any input with respect to the policy. Shetestified, however, she does not know why the policy was put in place, other than for clarificationfor staff, as she did not believe staff were acting maliciously towards her, but they had differentdynamics. She testified she had nothing bad to say about her predecessor, Kaye Isenor, however,their management styles were different, namely with respect to the woodworking and kitchen areasas there seemed to be more of a focus on getting the product out for sale as opposed to training and

she thought that focus needed to be changed.100. Ms. Poirier testified if reinstatement was ordered she would work with the Complainant as she is aprofessional and a team player. She further conceded neither she nor Andrea MacEachern did anyperformance review of the Complainant. She testified non-violent intervention training is essentialand the Complainant had that training and it is never appropriate to be physically aggressive, or useabusive language towards clients and you have to use the least violent actions appropriate for thesituation. She testified if a situation got really out of hand, they could call 911.101. Ms. Poirier testified the funding for the Respondent largely comes from Community Services;however, there is also a grant from Richmond County and they raise money from fund-raising events.102. Ms. Poirier testified abuse is never acceptable and accordingly, the decision to terminate theComplainant was appropriately made.Thomas Gunn2011 NSLST 29 (CanLII)103. Thomas Gunn testified he is President of the Board of the Respondent and had been Principal of theCommunity College and he has a degree in adult education. He testified he has experience inworking with persons with intellectual disabilities, not only here in Canada, but also overseas.104. Mr. Gunn testified he came to work for the Respondent in 2004 and he has been President for the past5 years. He testified as President, he chaired Board meetings, was on the Personnel Committee, andmeets regularly with the Executive Director. He testified the Board consists of 12 to 14 memberswho are all volunteers and some are clients of the Society.105. Mr. Gunn testified there are expectations for the staff in not just for making products for sale, but toget clients trained and involved in the community. He testified at the time he came to work for theRespondent, there were few policies in place and eventually they put together a policy for arespectful work environment and policies dealing with corrective action.106. Mr. Gunn referred to Exhibit R-1, Tab 1A, Corrective Action Policy, which also deals withprogressive discipline. He referred to the Code of Conduct, Exhibit R-1, Tab 1B and Tab 1C, beingan Abuse Policy and both those policies have been in place since 2005. He testified the policies wereput in place only after staff were consulted and comments were given to the Board. He testified atthe time the policy was put in place in 2005, Kaye Isenor was the Executive Director, as DianaPoirier was not hired until 2007.107. Mr. Gunn testified Diana Poirier’s job as Executive Director is more of a leadership role and hasexpanded from the manager’s role, previously held by Kaye Isenor.108. Mr. Gunn referred to Exhibit R-1, Tab 6, being a handwritten letter to the Board signed by theComplainant and others and he said this was not submitted through the proper channels and went tothe Board instead of to Diana Poirier. He referred to the Respectful Work Environment Policy,Exhibit R-1, Tab 5, where the lines of communication were that employees were to go to theirsupervisor first before going to the Board. He said the Board took the position that the letter was abreach of the policy referred to in Tab 5, and a reprimand letter went to the Complainant.109. Mr. Gunn testified all staff work under the Executive Director who reports to the Board and theBoard fully supported Ms. Poirier with respect to issuing a reprimand to the Complainant and theothers who signed the letter.110. Mr. Gunn testified the Board was aware of the substance of the letter dealing with the selling of bread

to the Superstore and he said it is not easy to get the product out and there were specific challengesat that time.111. Mr. Gunn testified he had little interaction with the Complainant and when he did, he advised himto take any concerns to his supervisor which was the Executive Director.112. Mr. Gunn testified with respect to the two issues in 2008, the Special Olympics and Bowl-a-Thonwhere the Complainant refused to attend, parents were upset that a staff member such as theComplainant did not attend as this is a highlight of the year for the participants. He testified he wason vacation when he received a call from Andrea MacEachern, acting Executive Director, and heasked her to contact the Vice President and check the policy manual as many on the Board were awaydue to vacation times. He testified he supported the letter of reprimand that went to the Complainantfor not showing up for the Special Olympics.113. Mr. Gunn testified with respect to the interviews of the clients of the Respondent arising from thecomplaint of CF, Exhibit R-1, Tab 12, he was not present for any of the interviews and when hereturned from vacation in mid July 2008, he saw the documentation that was gathered. He testifiedhe was disappointed and very concerned when he read the documents that a staff member would treatclients in that manner and he found it very worrisome and he wanted to hear the Complainant’s sideof the story.2011 NSLST 29 (CanLII)114. Mr. Gunn testified the Complainant was asked to appear at a meeting on July 10, 2008, with someof the Board members and he did not show up. He testified the Respondent sought legal advice andset up another meeting at their lawyer’s office on August 22, 2008. He testified at that time a letterof suspension with pay was given to the Complainant, Exhibit R-1, Tab 14, suspending him pendingfurther investigation.115. Mr. Gunn testified with respect to the August 22, 2008 meeting, he was not present, but was briefedfollowing the meeting. He testified at that meeting, the Complainant denied the allegations. Hetestified following that meeting with legal counsel, the Executive Committee made arecommendation to the Board for termination of the Complainant which was approved. He testifiedthey never had to terminate anyone before and he does not recall exactly what took place, but theBoard took the Committee’s advice. He testified some of the key factors were the seriousness of theabuse allegations as they wanted to ensure a safe environment for their clients, the reluctance of theComplainant to meet with them on July 10, 2008, and he believed they had a duty to protect theclients, especially as they were disadvantaged, and they relied on the trust of the staff members. Hefurther testified they had no reason to believe the statements of the clients were not truthful.116. Mr. Gunn conceded CC was a Board member and they did not request him to explain his answersto the questions or discuss the events with him.117. Mr. Gunn identified Exhibit R-1, Tab 13, a summary prepared by Diana Poirier of July 8, 2008, ofa meeting that she and Andrea MacEachern had with CF with respect to his complaint and hebelieved the Board was aware of that summary. He testified the Board’s decision was based on thecomplaint and allegations of CF together with the answers to the questions by the five clients of theRespondent. He testified he believed the truth of the statements and that there was abuse by theComplainant towards not only CF but also the other five clients of the Centre.118. Mr. Gunn testified the other ancillary issues of not attending the Special Olympics or Bowl-a-Thonor the incidents from years ago dealt with by Kaye Isenor, were not factors in terminating theComplainant. He testified it was a unanimous vote of the Board of Directors and he was notsurprised as there is a need to protect people with disabilities. He testified the Board took intoaccount the length of service of the Complainant and they thought the abuse allegations were serious

enough to terminate him immediately and not to give any progressive discipline as the primary focuswas to protect the clients who are very vulnerable with the disabilities.119. Mr. Gunn further testified if they kept the Complainant employed, he could be a risk to theRespondent as he may offend again and tarnish the reputation of the Society. He testified if theComplainant was reinstated, he had concerns of what may happen to the organization as he believessome of the Board members may resign.120. Mr. Gunn testified he did not want to bring to this hearing CF or clients of the Society who gavestatements to put them through the stress of the hearing. He testified as an example, CG has ‘downsyndrome’ and it would be difficult for him to testify.121. Mr. Gunn testified on cross-examination that a police clearance was given for the Complainant onMay 29, 2008, Exhibit C-5, as he was only requested to do so at that time. He testified concerningthis matter, other than the Board meeting on July 22, 2008, minutes of which are referred to inExhibit R-4, there was a meeting of the Board in September 2008, dealing with the Complainant’stermination. He also conceded, Exhibit R-1, Tab 17, was a letter from Diana Poirier to theComplainant of August 7, 2008, which was written on behalf of the Board and he testified he doesnot recall any minutes on record to reveal why the Complainant did not attend the meeting of July10, 2008; however, he believed it had something to do with the RCMP arriving at the Complainant’shome and he consulted a lawyer and was advised not to attend the meeting without counsel.Nevertheless, he testified he did not believe that was sufficient excuse to avoid a reprimand orsuspension.2011 NSLST 29 (CanLII)122. Mr. Gunn testified with respect to the change in focus to training and wellness issues with the clientsas opposed to making products for sale, he believed the Complainant had difficulty accepting theBoard’s direction in that regard.123. Mr. Gunn testified the allegations against the Complainant were a shock to everyone. He furthertestified at the meeting to terminate the Complainant in September 2008, he does not recall anyoneasking Ms. Poirier how the Complainant dealt with clients at the Centre, and he said the focus wason what happened and nobody asked Ms. Poirier whether remedial or progressive discipline wouldassist the Complainant instead of terminating him.124. Mr. Gunn conceded at the September 2008 Board meeting where the decision was made to terminatethe Complainant, the Board was not told the full details of CF’s complaint, however, some Boardmembers were on the Personnel Committee and would have known about the interviews that wereconducted. He testified there was no report at the Board meeting of how the questioning took placeand the Board was not told of the interview techniques and did not have clarification of the answersgiven by the clients.125. Mr. Gunn testified there was no thought given to reinterviewing the clients who made the statementsand he also confirmed they did not receive any reports from the RCMP and he has no knowledge ofwhat they investigated.126. Mr. Gunn testified the Complainant was a 15 year employee of the Respondent and there was littlein his employment file and there were no bad performance reviews. He conceded at the time DianaPoirier was hired there was talk of grumblings from staff, but he did not have any specifics. Heconceded he was aware the Complainant was interested in the welfare of the clients and he was goodat working with them. However, the recent allegations caused concern and they have a duty to protecttheir clients which is paramount.127. With respect to Exhibit R-5, being a letter the Respondent received from its solicitor dated August

26, 2008, following the meeting of August 22, 2008, Mr. Gunn confirmed the Complainant did denythe allegations. He testified although there were no formal complaints prior to the July 2008 incidentthat he was aware of, there were grumblings that the Complainant as such, had a rough way abouthim and he was more concerned about getting the work done and not the well being of the client, andhe did not like women working with him in the woodworking department, and things of that nature.However, he conceded, there were no formal complaints lodged by anyone.128. Mr. Gunn referred to the termination letter, Exhibit R-1, Tab 19, dated September 11, 2008, signedby Diana Poirier, with the approval of the Board of Directors terminating the Complainant’semployment effective that date. He testified he reviewed the letter that was written by legal counsel,which indicated abuse was the issue and he testified prior to that meeting, the Board was aware therewould be a resolution prepared for that meeting. He testified the Board, on recommendation of thePersonnel Committee and the Executive Director, whose main concern were the allegations of abusesupported by the statements of the clients and the complaint of CF, agreed that termination wasappropriate. He testified other ancillary issues such as the Bowl-a-Thon, Special Olympics, etc. werenot reasons for the Complainant’s dismissal. He testified they were concerned about risk to theCentre, the clients well being, and the liability of the Respondent. Mr. Gunn testified he did notbelieve the Complainant ‘was getting it’ about the new vision at the Centre.2011 NSLST 29 (CanLII)Kaye Isenor129. Kaye Isenor testified she is the past Manager of the Respondent and she commenced work in April1980 and retired in June 2007. She testified at the time she retired, she was in the position ofmanager of the Centre, and as manager, her duties were to supervise the operation of the workshop,provide training and raise funds. She testified some of the services provided were bakery and sellinggoods to the public and to some restaurants; woodworking; making custom orders such as smalltables and boxes; and recycling program. She testified the focus was always on client developmentand she was always interested in woodworking and she took courses in small business managementas well as having training in vocation awareness, first aid, and non-violent crisis intervention.130. Ms. Isenor testified she hired the Complainant on the recommendation from the Board and he hadbeen employed there for approximately 16 or 17 years. She testified the Complainant got alongexcellent with clients, he encouraged them, was patient and he mainly looked after the woodworkingarea of the Centre which was in the basement. She testified there was a lot of intermingling betweenthe upstairs and downstairs of staff and clients.131. Ms. Isenor identified Exhibit Book C-1, Tab 28, pages 42 and 43, being a staff evaluation which shedid on the Complainant and she testified this was part of her job. She testified the Complainantalways took the necessary training such as first aid, etc., and he never refused to take a course. Shetestified on a regular basis, she would see him work with clients, interact, talk and explain things tothem, and clients seemed to like working with him. She testified she never had any concerns or heardany grumblings from staff or clients about the Complainant.132. Ms. Isenor testified the Complainant was a self-starter and he would often go out to contractors onhis own to arrange contracts for the Centre and tried to involve the clients in programs such asrecycling. She testified he obtained a lot of revenue for the Centre. She testified she never heard anycomplaints that the Complainant did not want any female clients in the woodworking area and shesaid nobody was refused working with him in the woodworking department.133. Ms. Isenor testified the Complainant was a valued employee who was interested in the welfare of theclients. She referred to Exhibit R-1, Tab 3, being a note from Ms. Vincent of the group home whereCH resided, which indicated a complaint that the Complainant pulled CH’s suspenders. She testifiedshe spoke to the Complainant about the incident; however, she testified CH’s pants were too big and

the suspenders were holding up his pants and he refused to wear a belt. She testified the suspenderswould constantly fall off his shoulders and they were always encouraging him to keep his suspendersup. She testified she never noticed any teasing toward CH or disrespect shown to him by theComplainant and it was just a safety issue.134. Ms. Isenor testified with respect to Exhibit R-6, a May 12, 2003 letter from Mr. David to her dealingwith CD, she testified CD was aggressive if he did not get his way and he went off and abusedhimself by hitting and biting his hand, crying and causing injury to himself. She testified sheobserved CD and the Complainant had a good relationship and when CD got upset, he would hithimself. She testified she had no concern over the way the Complainant dealt with CD and she sawnothing to give concern about the way the Complainant handled the situation with not only CD, butalso other clients.135. Ms. Isenor testified she had been retired for 4 years; however, she never knew of any clients,including CD, that ever refused to go out with the Complainant on work trips or otherwise. Shetestified the letter that Mr. David wrote, Exhibit R-6, was not a disciplinary matter. Further, sheindicated CD’s hearing is not good and often you would have to speak very loud for him to hear,especially around a saw.2011 NSLST 29 (CanLII)136. Further, Ms. Isenor testified there was an incident where CD hit the Complainant from behind whilethe Complainant was working the saw and this was a safety issue, and CD was brought to her by theComplainant and she dealt with the issue. She testified she does not recall the Complainant puttingCD on his shoulder to bring him to her upstairs office.137. Ms. Isenor testified while she was the manager, it was a volunteer practice for staff to attend theSpecial Olympics and it was not mandatory. She testified she does not recall any policy from theBoard regarding staff having to attend the Special Olympics and they would only go if there was alack of volunteers. She testified the rule was that staff did not go to those events if there werevolunteers to help.138. Ms. Isenor testified she never saw the Complainant get rough with the clients, nor did she everreceive any complaints from parents about the Complainant’s treatment of the clients. She concededallegations of abuse are a serious matter that should be investigated.139. Ms. Isenor testified after she retired on June 15, 2007, she only came back to the Centre once for aretirement party. She further testified she was never asked to be part of the investigation or respondto the allegations against the Complainant.Margaret MacIntyre140. Margaret MacIntyre testified she worked in the Centre for 23 years and she retired approximately oneyear ago in October. She testified she was a counselor and worked with clients mainly in baking andcrafts. She testified she had training in health and safety, WHMIS, and crisis intervention. Shetestified over the years, the Complainant always took courses and she could not recall him everrefusing to take any course. She testified she worked with the Complainant for approximately 16years.141. Ms. MacIntyre referred to Exhibit R-1, Tab 6, being a letter that she wrote and signed along with theComplainant to the Board of Directors. She testified the concern she had was that she was helpingclients with bakery and crafts and they had an agreement where the Superstore bought their rolls anda representative of the Superstore led them to believe the Centre was not interested in selling the rollsto the Superstore. She testified they believed this came from the Executive Director, Diana Poirier.

142. Ms. MacIntyre testified she drafted the letter and her, another worker in the kitchen and theComplainant signed the letter and she had hoped that Andrea MacEachern would also sign the letteras she discussed it with her, but Andrea MacEachern did not want to get involved due to her positionas filling in for Diana Poirier. She testified she gave the letter to Ms. MacEachern as she was actingDirector for Ms. Poirier and told her she wanted it to go to the Board. She testified she subsequentlyreceived a letter of reprimand.143. Ms. MacIntyre testified it was important for the staff, as they were just sitting around and doing verylittle, to make and sell the bakery products to the Superstore, as they were not busy at the time asthere was no real program for them. She testified this would have been beneficial to the clients aswell as the Centre.144. Ms. MacIntyre testified she had a good working relationship with the Complainant and he got alongwell with everyone. She testified there was a lot of interaction between upstairs and downstairs andif there was any problem with the clients, people would have heard about it, and she never hadanyone come to her with any concerns about the Complainant.2011 NSLST 29 (CanLII)145. Ms. MacIntyre testified with respect to a swimming pool incident, she did not notice any aggressionshown by the Complainant against CD when he went upstairs with the Complainant to Kaye Isenor’soffice and he did not appear agitated. She testified during her years working with the Complainant,he did not mishandle clients.146. Ms. MacIntyre testified at the time the Complainant was terminated she was still employed there, butwas not approached by Ms. Poirier or Ms. MacEachern with respect to her views on theComplainant’s interaction with clients. She testified she believed CE was not there when she retired;she did see CH from time to time as well as CG; CC had left the Centre; and she believed CF got putout due to some damage at the Centre.147. Ms. MacIntyre testified there was very little discussion between management regarding policychanges and she does not recall any special directive for policies issued by the Board and there wasno effective communication. She testified before Ms. Poirier went on maternity leave, there was nopolicy dealing with change in production and there was no written memo from management.148. Ms. MacIntyre testified there was not a lot to do for the staff and making bread was the main thingand if they were not doing that, they were just hanging around. She acknowledges there was a moveto an individual program plan (IPP) which was hard to implement; however, there was not a lot ofdirection in that regard.149. Ms. MacIntyre testified the Complainant treated the clients well and they all got along well with himand she did not hear any complaints.COMPLAINANT’S EVIDENCE150. The Complainant testified he started work for the Respondent in 1993, in the woodworking area inthe basement of the Centre, and he had no prior experience working with people with learningdisabilities. He testified he has a grade 8 education and he has worked at odd jobs such as on afishing dragger and self-employed newspaper courier.151. The Complainant testified he had a good working relationship with all the clients of the Centre aswell as with staff. He testified he was shocked when he received the letter of September 11, 2008,Exhibit Book C-1, Tab 28, page 37, stating he was terminated for cause. He testified he neverengaged in yelling, cursing, threatening, intimidating, or teasing clients to a point of harassment, allas stated in the termination letter.

152. The Complainant testified the summary prepared by the lawyer for the Respondent referred to inExhibit Book C-1, Tab 28, page 19, detailing the allegations of CF and some other clients of theCentre referred to in a letter of July 8, 2008, prepared by Diana Poirier, was only seen by him afterhe was dismissed and he never saw the details of the complaint of CF nor the responses to questionsreferred to in Exhibit Book C-1, Tab 28, pages 26 to 31.153. The Complainant testified on July 9, 2008, there was a voice mail on his home phone to contactAndrea MacEachern at the Centre as he was home on stress leave. He testified an RCMP officercame to his home to inform him there had been an abuse complaint reported against him and that hewould like to meet with him to discuss it. He testified as the RCMP officer could not interview himat that time, he wanted to do it the next week. He testified, however, the RCMP never did interviewhim nor lay any charges.154. The Complainant testified he contacted a lawyer who advised him not to go to any meeting withouta lawyer present, and the next day he asked Ms. MacEachern as to what the abuse allegations wereabout and she did not indicate what the meeting was about or give any particulars and she did not tellhim who made the complaint or what the allegations against him were all about.2011 NSLST 29 (CanLII)155. The Complainant testified CF was a big man who was intellectually challenged and had a bad temper,but he had a good relationship with him and he worked with him in the woodworking shop. Hetestified reading CF’s complaint referred to in Exhibit Book C-1, Tab 28, page 21, with respect tohis comment about CD at the pool. He testified he denies being rude to CD and said that took placea couple of years ago prior to Diana Poirier being hired by the Respondent and he used to take clientsout for a swim from 12:00 to 1:00 p.m. on Mondays and half of them would be women and half menand he would supervise the men and help them in the dressing area and supervise them at all times.156. The Complainant testified CD had a tantrum on the pool deck and he had to speak to CD and oftenwhen he spoke to CD, who was intellectually challenged, he had to use eye contact, and often hewould have to speak to them firmly and tell them to go get dressed if they carried on or threw atantrum and he took CD to see Kaye Isenor to have her deal with him. He testified he did not grabCD by the collar or the arm and he knew through his non-violent intervention training program thatyou are not supposed to grab a client but use verbal instructions. He testified he asked CD to leaveand he became very angry and threw a tantrum, and by using eye contact to get CD’s attention hefinally came with him to see Kaye Isenor.157. The Complainant testified with respect to the reference by CF in his complaint that he told him ‘tosit your arse down’ and threatened him with a 2 x 4, he never threatened CF or anyone with a ruleror 2 x 4, however, he often uses a ruler to make lines or circles in the woodworking area and he neverthreatened anyone.158. The Complainant testified CF often embellishes things because he wants attention. He further deniedever cursing at anyone or telling them to ‘shut your fucking mouth’, all as alleged by CF. Heconceded, however, he might have told someone to ‘button their lip’ as sometimes they got rowdyand yelled at each other. He testified he was never rude to any of the clients and he treated them allas adults and he enjoyed working with them and they enjoyed working with him.159. The Complainant testified with respect to the allegation he put his fist up, the only person he put hisfist up to was CH, who was his cousin, who loved boxing and they did this on many occasions in ajoking way as CH always wanted to wrestle with him. He testified CH is a big man, he wouldsometimes put him in a head lock, but it was always in fun. He testified he did not pick on his cousinCH or make fun of him. He testified the reference to ‘not knowing if he was joking or not’, that wasthe reason that he might have been seen putting his fist up, but they were just joking around. He

testified CF would always be hanging around as he did not like to work but liked to watch; however,he said notwithstanding that, he enjoyed working with CF and teaching him in the workshop.160. The Complainant testified he took CF and others throughout the county to try and get jobs for them.He denies the allegation of CF that he was only going to take a break when he said so and again hetestified, CF did not like to work but enjoyed his breaks and he sometimes would not listen toinstructions. He denied ever grabbing him by the arm, telling him he was a ‘wise guy’, pushing him,or telling him he was going to hurt him. He testified he could never push CF up the stairs and CFis a big man who weighs approximately 250 pounds and he is only 5'4". He testified he often hadto look him in the eye and talk to him and then he would back down.161. The Complainant testified for approximately 4 years that CF was at the Centre, he never physicallygrabbed him, but he might have threatened to take him back to the Centre if they were out doingerrands or outside the Centre, however, this would only be because CF was getting out of hand andhad to be spoken to in order to control his temper.162. The Complainant testified CF was always after CH and he denied ever displaying anger or a tempertoward CF and he never hit a client.2011 NSLST 29 (CanLII)163. The Complainant testified after he was terminated, he has had contact with many of the former clientsof the Centre and they all are very supportive of him. He testified even CF apologized to him andhe understands CF had to leave the Centre because he pulled a gas line off the building.164. The Complainant testified with respect to CD’s statement, Exhibit Book C-1, page 27, he never sawthat statement before he was dismissed nor did he see any of the other clients statements referred toin Exhibit Book C-1, Tab 28. He testified with regard to CD, he has severe learning disability, lotsof anger, but there is a lot of good in him and he got along well with him and took him out a lot andspent a fair bit of time in helping him.165. The Complainant testified with respect to question 1 of CD’s statement, he denied using the ‘f’ wordor cursing at CA. He testified CA was hard of hearing and had two hearing aids and often he wouldhave to raise his voice to be heard. He testified CD would often use swear words and curse and thiswas common among all the clients from time to time.166. The Complainant testified with respect to question 2, the pool incident, the comment by CD was nottrue as he did not grab him by the arm, shake him or threaten him. He testified he put his hand onhis shoulder to lead him to the Centre, but he did not grab him to take him upstairs in the Centre, butjust walked up with him. He testified he has known CD for approximately 10 years, CD has stayedat his home and he has given him a utility knife and has had no problems with him. He testified CDcannot read or write and has a lot of mental disability issues.167. The Complainant testified with respect to CE’s statement, Exhibit Book C-1, Tab 28, page 28, again,he never saw that statement before he was terminated. He testified CE is approximately 40 years ofage and was at the Centre before he was employed there and they had a good relationship.168. The Complainant testified with respect to question 5, CE saying CD had hit him and as a result hetook CD by the arm upstairs, this happened before Diana Poirier was the Executive Director. Hetestified he was working on the saw and CD pushed him in the back while operating the saw and hetold CD he should not do that as it was dangerous and he had to go upstairs and tell Ms. Isenor whathappened. He testified when CD pushed him towards the saw, that is when he wanted Ms. Isenorto talk to him, and he just led him upstairs to her office.169. The Complainant testified with respect to the statement given by CH, Exhibit Book C-1, Tab 28,

page 29, he acknowledged CH is his cousin and he would wrestle and shadow box with him fromtime to time and this was all in fun. He denies shaking a yard stick at CG and the allegation that CHasked him ‘what if he cut CI with a knife’, he testified he does not recall the response that ‘it wouldbe your fault’, but he said this is just an example of the erratic comments that would be made.170. The Complainant testified with respect to the statement of CG, Exhibit Book C-1, Tab 28, page 30,he denies saying to him to ‘sit your arse down’ or giving orders very loud to CF or CD. He testifiedoften when the saws are running, it is very noisy and with the chattering going on, he sometimes hasto speak loud for everyone to hear. He denies cursing or giving loud orders to anyone.171. The Complainant testified CG is a member of the Board of the Centre and CG often calls him todiscuss how the case is going since he has been dismissed and he wishes him good luck. However,he testified it is always CG who initiates the telephone calls.172. The Complainant testified with respect to the statement of CC, Exhibit Book C-1, Tab 28, page 31,he does not recall telling anyone to shut their mouth, other than there being times he had to tell themto quiet down or not to all talk at once due to the noise level when the saws were running.2011 NSLST 29 (CanLII)173. The Complainant testified with respect to having to go to a meeting at 8:30 a.m. on July 10, 2008,he recalls he was on stress leave prior to that and on July 9 th his cell phone message box was full andhe was out and there was a message left by Andrea MacEachern for a meeting at the Centre;however, he said the RCMP came to his house later that day around 4:00 p.m. as they wereinvestigating abuse allegations, he called his lawyer who advised him not to attend the meetingwithout a lawyer. He testified he never heard again from the RCMP, but the officer did indicate hecould not interview him at the time he came to his house as he was going away for the weekend, buthe would try to get in touch with him the next week; which he never did, and he heard nothing furtherabout it and no charges were ever laid.174. The Complainant testified he likes his job, he enjoyed working with the clients, and he had a goodrapport with them. He testified they all have different degrees of disabilities and he helps instructthem on woodworking techniques, how to use the saws, safety issues, make survey stakes and alsotakes them to do lawn maintenance for clients as well as recreational activities such as bowling,swimming, etc.175. The Complainant testified he treats them all as friends and neither staff nor clients have evercomplained to him or he has not heard any complaints about his interaction with them. He testifiedbecause they are all different, they all have different ways of expressing themselves, but they all getalong with each other and he has been fortunate enough to deal with their various personalityproblems and disabilities. He testified he gives instructions to the clients in the workshop on howto use the saws, tools and equipment. He testified there is often interaction with the staff fromupstairs and if there was ever any problem with his interaction with the clients, such as yelling orthreatening, other staff would find out about it.176. The Complainant testified he believed he always got along well with the new Executive Director, Ms.Poirier, when she came to work at the Centre in 2007. However, he testified soon after she came on,he had discussed with her that he always took his vacation in October and November as he liked togo hunting and she advised him that she would be the one to set his vacation and not him.177. The Complainant testified with respect to the so-called bread letter referred to in Exhibit R-1, Tab6, he did sign the letter that was prepared by Ms. MacIntyre who worked upstairs in the kitchen ashe felt it was important for the clients to be involved in producing baked goods for sale and it wasa fund-raiser for the Centre. He testified they were all surprised to find out that the ExecutiveDirector, Diana Poirier, was not interested in selling rolls to the Superstore and they were quite

concerned because if the staff were not making rolls to sell, they would be sitting around doingnothing, and it was better for them to do that and to use this as a fund-raiser for the Centre.178. The Complainant testified at that time, Diana Poirier was off on maternity leave and the letter wasgiven to Andrea MacEachern who was filling in for Ms. Poirier and she would have signed the letteras well, but she indicated she did not want to get involved as she was between the Board and Ms.Poirier and she told them, she would present it to the Board.179. The Complainant testified a lot of the clients upstairs who are training in the kitchen and bakingdepartment cannot read or write and if they are just sitting around doing puzzles they would havenothing productive to do, and the letter was signed by himself, Natasha Hatcher and Ms. MacIntyreand he understood Ms. MacEachern was going to take the letter to the Board. He testified he did notbelieve this was going over Diana Poirier’s head as she was out on maternity leave and, inaccordance with the policy, if the acting Director was not going to do anything, it was to go to theBoard. He testified he was surprised when he received a letter of reprimand from Diana Poirier onMarch 7, 2008, Exhibit Book C-1, Tab 28, page 14.2011 NSLST 29 (CanLII)180. The Complainant testified the Respectful Work Environment document that he signed on January3, 2008, referred to a chain of command that a complaint would pass through, namely his supervisorwho was Andrea MacEachern, and if he did not get any assistance, he could go to the Board and thatis in accordance with the policy referred to in Exhibit R-1, Tab 5, under the heading “Lines ofCommunication”.181. The Complainant testified with respect to not going to the Bowl-a-Thon, he did tell AndreaMacEachern that he was not going to go as it was on a volunteer basis as he never had to go before,and he enjoys having his weekends off. He denies being told in advance that he had to go to thisevent and he referred to Exhibit R-1, Tab 8, being handwritten notes of Andrea MacEachern. Hetestified he did not appreciate Andrea MacEachern telling him in a strong tone of voice that he hadto go to the Bowl-a-Thon in front of others and she should have discussed this with him in private.He testified it was never a policy of the Board or any direction was given that this was a mandatoryevent that he had to attend. He testified in all his years at the Centre the event has always beenvoluntary.182. The Complainant testified he received a letter of June 2, 2008 from Andrea MacEachern and hereferred to Exhibit R-1, Tab 10, being that letter, wherein she issued him a reprimand for notattending the Special Olympics. He testified he mentioned to her that he was not going to go to theSpecial Olympics as this has never been a requirement and nobody told him he had to go. Hetestified being out in the sun all day caused him to get migraine headaches. He testified he was neverasked to go to Special Olympics before as basically it was all volunteer work. He testified the toneof Ms. MacEachern’s voice was that it was an order for him to attend, however, there was never anycommunication to him before about it being part of his employment and it was not in his jobdescription.183. The Complainant testified with respect to the letter issued by Diana Poirier of July 10, 2008, for notattending the meeting, referred to in Exhibit Book C-1, Tab 28, page 35, he was never told what themeeting was about and he was suspended with pay and prior to that day the RCMP attended at hishome with a view of investigating abuse allegations, but they never did come back and he heardnothing more about it. He testified he told Ms. MacEachern the RCMP had approached him and hewould not go to any meeting without a lawyer being present.184. The Complainant testified the letter from Diana Poirier of August 7, 2008 reprimanded him, however,he was never informed by Ms. MacEachern of the allegations and he had already told Ms.MacEachern why he did not show up for the meeting of July 10, 2008. He testified he did show up

for the meeting of August 22, 2008 with his lawyer and the meeting took place at the office of theRespondent’s lawyer, Mr. MacDowell, but he was not allowed to ask any questions. He testifiedwhen he asked if he could ask a question, he was told by Mr. MacDowell that he could not do so.185. The Complainant further testified he was never shown the statements by the clients at the Centre northe allegation of CF and all he was given was a summary of the complaint just prior to the meetingreferred to in Exhibit R-1, Tab 18.186. The Complainant testified at that meeting, he denied all the allegations and said he would never abusea client or tell someone to ‘sit your arse down’ or ‘shut your fucking mouth’ nor did he everintimidate anyone by waving a ruler or fist at them or threaten to hit them. He testified thoseallegations are all untrue.187. The Complainant testified the clients who made the statements do not lie provided they are explainedthe circumstances surrounding the questions and are given a chance to elaborate on them. Hetestified most of them are intellectually disabled and would not even understand the question andthey gave no specifics of when any events happened or the circumstances surrounding them, suchas him jostling with his cousin CH and shadow boxing, or speaking loudly as the saws were running.He testified CD and some others were hard of hearing and often in order to keep order, he wouldhave to speak firmly with them due to the clients jesting with each other. He testified CF would oftenembellish his stories as he wanted to be liked and he was also a jokester.2011 NSLST 29 (CanLII)188. The Complainant testified in the letter of August 26, 2008, Exhibit R-5, that the lawyer for theRespondent had prepared, referred to an incident 15 years prior and he testified he took CD from thelocker room to the shop and he had a hand on his back or shoulder, but he never laid a hand on himor assaulted him in any manner.189. The Complainant testified he never swore at any of the clients; he believed he had their trust and theyliked him and he liked them. He testified often he would have to raise his voice in the workshop dueto the noise level. He testified he never raised rulers or his fist at anyone in any threatening gesture.He testified he never refused to go for training or take courses when asked to do so.190. The Complainant testified since his dismissal it has been very difficult for him; he has been on socialassistance and he conceded he has not tried to get another job, other than working part-time as a dogcatcher for the Town of Port Hawkesbury. He testified he loved his job very much and wants to getreinstated. He testified he knows he can get along with the staff and clients as he has never had aproblem with the staff or the clients and many of them have come forward to him since histermination with encouragement.191. Further, the Complainant testified he would be able to work with the Executive Director, the Board,and clients and he is prepared to do whatever it takes to follow directions of the Executive Director.He testified he often talks to the clients of the Centre, both former and present, and he gets along wellwith them.192. The Complainant testified the clients do tell the truth when they are fully informed of the wholesituation; however due to their various degrees of intellectual disability, different things go throughtheir minds and they do not always react or respond clearly in their thinking. He cited an exampleof CG who has been calling him almost every second day; he has talked to CC, CE and even CFcalled him and he saw him on occasions after he was terminated and said he was sorry for what hehad done. He testified he knows CF is a good man, but is very challenged and embellishes thingsjust to be liked.193. The Complainant testified in cross-examination that most of the clients do not swear and he did not

swear or curse at any of the clients. He testified he never used the words ‘sit your arse down’, buthe might have said ‘sit your butt down’, but if he had said that, he did not mean it in any curse way,and he did not recall saying those words.194. The Complainant further testified on cross-examination that he did make references to him and hiscousin CH shadow boxing, but this was all in fun. He testified further, he does not recall when DianaPoirier came on staff, whether there was any formal meeting about a change in the way they dobusiness with more focus on client and less on work. He testified he did not have much interactionwith her and, accordingly, never really got to know her.195. The Complainant conceded in his job description, Exhibit R-1, Tab 4, page 2, that in addition to theduties outlined, it also referred to ‘complete other duties from time to time that may be required’.He testified the Bowl-a-Thon and Special Olympics were never part of his duties prior to DianaPoirier becoming employed with the Respondent and he testified he denies the reference in the letterfrom Andrea MacEachern to himself of June 2, 2008, Exhibit R-1, Tab 10, that he was informed ofthe Special Olympics at least six weeks prior and he testified it was actually a couple of days beforethat he was told to attend.2011 NSLST 29 (CanLII)196. The Complainant testified the Special Olympics were held in Antigonish and he understood it wason a volunteer basis and for the 16 years of his employment, he never had to go to the SpecialOlympics. He testified when Ms. MacEachern asked him to go, he declined and told her that he getsmigraines if he is in the sun for any length of time, and, in any event, he never had to go for all theyears of his employment and he was given short notice to attend.197. The Complainant denied he had any run in with Diana Poirier regarding his vacation time, and thiswas discussed and she wanted him to take vacation when she set the vacation time and not when hewanted to go. He testified he does not disagree with the way that Ms. Poirier has run the Centre, butdisagreed with her attempting to change his vacation time that he has enjoyed for the years of hisemployment with the Centre and also the change to the bread program. He testified the letter hesigned was not intended to undermine her, but she was on maternity leave and it was up to AndreaMacEachern to deal with and she did not want to get involved and she gave it to the Board. Hetestified he believed he followed the proper channels.198. The Complainant acknowledged the letter was addressed to the Board, but he knew AndreaMacEachern was in favour of the letter, but she would not sign it since she was acting in place of Ms.Poirier; however, she delivered the letter to the Board. He testified he could get along with AndreaMacEachern and did not feel that she stabbed him in the back by showing the letter to Diana Poirierbefore it went to the Board as she was in a difficult position. He testified he does not believe heshould have been reprimanded for signing the letter.199. The Complainant testified on cross-examination he did not believe any of the clients wouldintentionally fabricate a story and he always had a good relationship with them; however, they arechallenged people and one could easily make them say what you wanted them to say. He furthertestified at the time of his dismissal, he was not aware of the specifics of the allegations against himand at the meeting on August 22, 2008 at Lorne MacDowell’s law office, he was not permitted to askany questions and he was not permitted to see the statements made by CF or the clients.200. The Complainant testified for all the years he has worked with the Respondent, he has never had anycomplaint lodged against him by any of the clients or staff and he has always had a good workingrelationship with them. He testified he enjoys working with mentally challenged people and he takesan interest in them, in not only training them in the woodworking shop, but also taking them out toevents in the community. He testified he has learned over the years how to deal with the clients,through the training he has received and from practical experience. He testified with clients such as

CD, he had to try to make eye contact with him. He testified he has taken a course in non-crisisintervention and ways to deal with situations in a non-violent manner, such as speaking calmly, beingin a position of influence, making eye contact, and supporting clients.201. The Complainant testified he does not believe Diana Poirier was trying to build up a file on him andhe believes he could have a good working relationship with her, and unfortunately there was littleinteraction between them due to her being on maternity leave. He referred to a summary by thelawyer for the Respondent from the meeting of August 22, 2008, where a reference was made hewould agree to training, he testified he would agree to any training as he has always done, but it wasnot as a result of any abuse. He testified if the Centre believed training would further help himdevelop in his work, he is prepared to take that training.202. The Complainant conceded if there was abuse of clients at the Centre, it could lead to termination.He denies he abused any of the clients and reiterated he would never do so. He testified the focusof his work was client focused and they were always number one. He testified it was important togive the clients skills training for employment and he did the best he could and enjoyed his work andhe believed his clients enjoyed working with him.2011 NSLST 29 (CanLII)203. The Complainant testified he has three children and grandchildren and he treats his clients like hetreats his children. He testified he would never abuse them, swear at them, or threaten them in anymanner. He testified since his dismissal, he applied for work at the Town of Port Hawkesburyapproximately two years ago and he worked as a dog catcher for the Town for a short period of timefor $25.00 a day. However, he testified he wants to go back to his work which he loves and he didnot apply for jobs outside the Centre, including going to work out west. He testified he is a CapeBretoner and he does not want to go across the causeway.204. The Complainant testified he believed his job was foremost with the clients, keeping them busy,giving them skills for employment and creating new programs for them. He testified he worked withAndrea MacEachern while Ms. Poirier was on maternity leave and she had previously worked in thekitchen at the Centre and he got along well with her. He testified he does not have any reason tobelieve she does not like him. Similarly with Diana Poirier, he testified she is not a dishonest personand does a good job, but it is just that they have never had a chance really to get to know each otheras she was off on maternity leave and she did not come down to his woodworking shop very oftenwhile she was working there.205. The Complainant testified with respect to the confidential summary of complaint prepared by theRespondent’s lawyer, Exhibit R-1, Tab 18, dated August 19, 2008, he never saw that document orany document showing the allegations against him or the signed statements of the clients, at themeeting of August 22, 2008. He testified he specifically asked the Respondent’s lawyer if he couldask questions and he was told he could not. He denies the allegations referred to in that summary.206. The Complainant testified with respect to the statements of the clients as well as the allegation of CFthat it is very important to explain to them fully what you mean by the questions and to take timewith them as they get confused and have difficulty expressing themselves and they expressthemselves differently depending on their disability. He testified you do not have to swear at theclients or intimidate them as some of them become irritated, but you may have to speak loud in orderto be heard, either due to their loss of hearing or due to the noise in the workshop. He testified mostof the clients cannot read or write and although they were asked to sign the statements, most of themwould not have known what they said.207. The Complainant testified he was a role model to his clients and they enjoyed working with him. Hetestified he could accept the authority of Ms. Poirier if she has to set vacation times or administerpolicies of the Board and he would follow them. He testified he was always very concerned about

the safety of the clients and said he was aware in the kitchen upstairs, Occupational Health and Safetyrequired a guard to be put on the bread making equipment and while they were waiting for that to befixed, there was very little for people to do. He testified in his workshop the jigsaw had to be fixedand needed a guard and he fixed that; however, it did not appear there was any interest in getting thebread making equipment fixed.208. The Complainant testified with respect to the so-called bread letter, Exhibit R-1, Tab 6, that hesigned, prior to that letter being prepared by Ms. MacIntyre, he testified others had talked to AndreaMacEachern about problems in the bakery, but nothing happened, and she agreed with the contentsof the document. He testified the letter was addressed to the Board because that was the process togo through if you were unhappy with the supervisor’s response.209. The Complainant conceded he is aware of the policies referred to in Exhibit R-1, Tabs 1A, 1B and1C, dealing with Code of Conduct, Abuse and Corrective Action. He acknowledged signing theRespectful Work Environment document, Exhibit R-1, Tab 5, on January 3, 2008, and he thoughtthat document was brought to him by Tom Gunn as President of the Board.2011 NSLST 29 (CanLII)210. The Complainant testified Margie MacIntyre indicated there was an individual program plan (IPP)that had to be prepared on clients and he acknowledged he was asked after Ms. Poirier started at theCentre to prepare a plan, but he testified as he was very busy, he was supposed to sit down with Ms.Poirier and work this out, but they never got together to do this. He testified Ms. Poirier knew hisschedule, but between the two of them, they never got around to getting this done and he was neverdisciplined as a result of it.211. The Complainant further testified with respect to the bread letter, Andrea MacEachern had informedMs. Poirier, but none of them received any notification from her that the letter should not go to theBoard, and it was passed on to the Board by Ms. MacEachern.212. The Complainant testified with respect to Exhibit R-1, Tab 5, Respectful Work Environment, thelines of communication are set out as to bring any questions or concerns to the immediate supervisor,and if they are not satisfied, to speak to that supervisor’s immediate supervisor, and then if notsatisfied to go to the Chair of the Personnel Committee or the Board President. He indicated, hefollowed the procedure in that their immediate supervisor was Andrea MacEachern as Ms. Poirierwas on maternity leave, and as Ms. MacEachern did not want to deal with it, it was sent to the Board.213. The Complainant testified he just wants his job back with full pay and benefits and he knows he canwork with Ms. Poirier and staff and clients and he has always had the clients best interest at heart.He testified he believes there is no reason why he cannot do a good job and he has the support of theclients.RESPONDENT’S ARGUMENT AND REPLY214. Noella Martin, on behalf of the Respondent, argued they have proved the incidents for just cause toterminate the Complainant as the events were serious enough to summarily dismiss the Complainant.She argued alternatively, there were culminating incidents of progressive discipline history to providejust cause.215. Ms. Martin argued the Complainant made inappropriate statements to clients of the Respondent andengaged in inappropriate behaviour towards them. She argued the statements of the clients includethe following:• “Shut your fucking mouth.”• “Shut your fucking mouth before I punch you.”• “Do you want to go back to the Centre? You’re coming with me.

Don’t care if you’re in your clothes or your birthday suit. You aregoing to the office. Let’s go before I drag you there.”• “Sit your arse down.”• “Button your lip.”216. Ms. Martin argued the inappropriate actions of the Respondent were as follows:• Holding a ruler and threatening to hit a member of the ROC• Threatening to hit a member with a 2 x 4• Shaking a yard stick at a member• Shaking a fist at a member217. Ms. Martin argued the issue of credibility is important and that the members of the Respondent whoprovided information were telling the truth and the employees who investigated the allegation,namely Andrea MacEachern and Diana Poirier, acted appropriately in collecting information. Sheargued the Complainant’s credibility was lacking.2011 NSLST 29 (CanLII)218. Ms. Martin argued there are tests used in establishing credibility of witnesses which courts havereferred to and she quoted a passage in Farnya v. Chorny [1952], 2 D.L.R. 354 (B.C.C.A.), whereJustice O’Halloran summarized that “the real test of the trust is the story of a witness in such a casemust be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions”.219. Ms. Martin argued Justice O’Halloran went on to say, “The trial judge ought to go further and saythat evidence of the witness he believes is in accordance with the preponderance of probabilities inthe case and, if his view is to command confidence, also state his reasons for that conclusion.”220. Ms. Martin argued first of all dealing with the credibility of members who provided information onthe incidents, she argued there are four reasons why this Tribunal should conclude that members ofthe Respondent who provided information were truthful, as follows:1. Testimony of the Complainant: He confirmed that those members that providedinformation on the incidents do not lie.2. Andrea MacEachern who interviewed the members believed them to be truthful.3. Ms. Martin argued there is nothing in the documentation or from testimonialevidence to suggest any members of the Respondent who provided information wereknown to be dishonest.4. In reference to Farnya supra, the members information is in harmony with thepreponderance of probabilities as there is consistency in the statements.221. Further, Ms. Martin argued the employees who investigated the complaint, namely AndreaMacEachern and Diana Poirier, are credible and they conducted a credible investigation. She arguedthey acted in accordance with the policy of the Respondent and Ms. MacEachern received acomplaint from a small options home on Isle Madame where a member, CF, resided, who indicatedthe Complainant had behaved aggressively, disrespectfully, threatening and physicallyinappropriately with members, and accordingly, she was requested to investigate.222. Ms. Martin argued Ms. MacEachern interviewed the members individually and within a short periodof time and conceded both she and Ms. Poirier, the Executive Director, were not experienced ininvestigating complaints of this nature.

223. Ms. Martin argued with respect to gathering this information, it was necessary to meet with themembers individually and in a prompt manner and also to get the Respondent’s side of the story.224. Ms. Martin argued with respect to the Complainant, his credibility is an issue and he has denied allthe incidents. She argued that is not in harmony with the rest of the evidence, especially where hehimself said the members do not lie. Accordingly, she argued the incidents all occurred as describedby the members.225. Ms. Martin argued the evidence as a whole and the incidents themselves, were serious enough toprovide just cause for summary dismissal. She referred to the Respondent’s Corrective ActionPolicy, Exhibit R-1, Tab 1A, which states “in cases of serious misconduct or criminal activity, theExecutive Director/Designate may suspend or terminate the employee without following theprogressive counselling and disciplinary procedure”.226. Ms. Martin argued the Respondent serves mentally challenged men and women and thus is subjectto a high standard and it is imperative that employees meet that standard in their performance andbehaviour. She referred to a decision of the Labour Standards Tribunal in Raynard v. The YarmouthRegional Hospital Board of Trustees (L.S.T. No. 1025, December 1993), to support her argumentthat employees who work with the vulnerable population can be held to a high standard ofperformance and behaviour.2011 NSLST 29 (CanLII)It is always difficult to terminate a long-term employee, and to deny themthe protection afforded by Section 71 of the Code. We are mindful of thefact that the environment in which the Complainant worked [a hospital]required a high standard of behaviour, not only because it is a publicinstitution, but because the persons with whom employees come in contactare vulnerable because of their illness and their lack of control. To takeadvantage of patients in any way during the course of employment is anextremely serious matter which cannot be tolerated. The Tribunal feels thatthe Hospital acted properly in protecting its patients from being subject tothat kind of unprofessional treatment.227. Ms. Martin argued the Complainant dealt with members who were vulnerable because of theirintellectual disabilities and the Respondent must ensure its employees meet that high standard of jobperformance behaviour.228. Ms. Martin referred to Mintus v. Nova Scotia Department of Community Services (L.S.T. No. 1550,July 1999), again where the Tribunal recognized employees who work with the vulnerable populationmust be a role model. Ms. Martin argued if the employees conduct amounted to a fundamentalbreach of trust, that constituted a breach of the employment contract and could lead to just cause toterminate the employment.229. Ms. Martin argued in this case, the Complainant was in a position of trust over vulnerable adults andhe was a model for them and he violated that trust by threatening, yelling, and swearing at them, allof which was totally inconsistent with the mandate of the Respondent. She further argued even ifthe Respondent was not an organization in charge of the public trust and care of vulnerable people,the principle applies and referred to a decision of the Labour Standards Tribunal, Yonkers v. HantsCo-Operative Services Limited (L.S.T. No. 1561, August 1999), where the employee was rude andused bad language by using a rude hand gesture to a customer. The Tribunal in that case found theconduct constituted wilful misconduct which was not condoned by the employer.230. Ms. Martin further referred to Connell v. Royal Canadian Legion # 98 (L.S.T. No. 514, October

1986), where the Tribunal found the way an employee handled customers, in this particular case, waswilful misconduct, disobedience or neglect of duty which enabled the employer to summarily dismissthe Complainant and also involved the possibility of causing physical and emotional harm to avulnerable population of adults.231. Ms. Martin also referred to a decision of the Labour Standards Tribunal in Lutz v. Sears Canada Inc.(L.S.T. No. 1423, June 1997), where an employee’s misconduct was held to be in a conflict ofinterest and at paragraph 82 the Tribunal held as follows:Notwithstanding Mr. Lutz’ age, long years of service with Sears, his lackof disciplinary record and the relative profitability of the Halifax ClearanceCentre, it is our conclusion that Mr. Lutz’ actions in relation to SurplusMarketing, in their entirety, constitute a lack of judgment so fundamentalas to justify the employer in losing confidence in his ability to manage inaccordance with company policies, and that they constitute just cause.232. Ms. Martin argued the Complainant in this case demonstrated a comparable lack of judgment.2011 NSLST 29 (CanLII)233. Ms. Martin also referred to other cases such as Stephens v. A.B.C. Electric Ltd., 1983, Carswell BC1638, where the British Columbia Supreme Court held that an employer had just cause to terminatewhere an employee physically and verbally harassed several customers of their employer. Sheargued in that case the customers were not vulnerable, intellectually disabled, or mentally ill adults,but the employee’s behaviour was held to be just cause for his dismissal.234. Ms. Martin referred to MacLeod v. Commissionaires Nova Scotia (L.S.T. No. 2143, May 2007),where the Tribunal dealt with an employee who had a problematic management style and theemployer received complaints that he had used racist comments in the course of performing hisduties. The Tribunal at paragraph 26 stated as follows:The Respondent in this situation decided to discharge the Complainant fromhis duties at the Cape Breton Regional Hospital without notice. TheTribunal finds it had just cause to do so for two reasons. Firstly, theComplainant’s behaviour exposed the Respondent to potential liabilityunder the Human Rights Act. Secondly, the racist comments made by theComplainant created a hostile and unsafe work environment for all theRespondent’s employees at the work site.235. Ms. Martin argued the foregoing case is relevant because the employee had no disciplinary recordfor a 26 year career with the employer, yet it involved inappropriate behaviour in the workplace andcould have exposed the employer to potential liability. She argued in this case the Complainantcould expose the Respondent to potential liability through his statements and actions and put theRespondent at risk of vicarious civil and criminal liability in tort law (Assault), Occupational Healthand Safety Law (failure to maintain a safe, violence free workplace) and criminal law (C-45 WestrayBill) requiring employers to maintain safe workplaces.236. Ms. Martin argued the fact the Complainant had a lengthy service record is not a mitigating factoras the Tribunal found in Raynard, Macleod and Mintus supra, the employees all had lengthy periodsof employment, and the Tribunal found that did not override the employer’s ability to terminate theemployee for just cause.237. Ms. Martin further referred to the Labour Standards Tribunal decision in Roberts v. Colchester YoungMen’s Christian Association (L.S.T. No. 1338, July 1996), where the Tribunal at paragraph 58 statedas follows:

In our view, the allegations against Mr. Roberts amount to a combinationof misconduct and incompetence. It is clear that one single instance ofeither conduct is insufficient to ground summary dismissal, unless thealleged conduct is extremely serious (such as theft, dishonesty, breach oftrust). ...We accept that incidents which, taken alone, might not constitutejust cause could, taken cumulatively, do so.238. Ms. Martin argued notwithstanding that the incidents referred to by the Complainant against theclients of the Respondent taken alone warrant just cause, in any event, taken cumulatively they doprovide just cause for summary dismissal.239. Ms. Martin further argued alternatively, the Respondent did take a course of progressive disciplinein the form of verbal warnings and letters provided to the Complainant, such as:• letter of March 7, 2008, which was a reprimand letter signed by the ExecutiveDirector, Diana Poirier, dealing with the possible sale of bread to the Superstore• April 1, 2008, verbal warning by Andrea MacEachern regarding theComplainant’s failure to attend the Bowl-a-Thon and his aggressive conduct• letter dated June 2, 2008, which was a reprimand for the Complainant failing toshow up for the Special Olympics• August 7, 2008, reprimand for the Complainant not showing up to a meeting todiscuss the allegations by members of the Respondent on July 10, 2008.2011 NSLST 29 (CanLII)240. Ms. Martin argued there was sufficient progressive discipline that put the Complainant on noticewhich arose from the same behaviour, namely the Complainant’s disregard for authority, hisdisrespect for the people employed by the Respondent, and his aggressive, inappropriate expressionof his disrespect.241. Ms. Martin argued the Complainant was consistently advised against being aggressive, underminingmanagements authority, disrespecting staff and members and failure to perform to the Respondent’sstandards.242. Ms. Martin further argued in reply to the Complainant’s solicitor, Dennis James, who had indicatedthat the Complainant had a discipline free record throughout his employment and that the solicitorfor the Director of Labour Standards, Dana MacKenzie, referred to the Complainant having anunblemished work history. She argued those statements are wrong, and, in fact, the Complainant hadbeen reprimanded and warned that a further cause for reprimand could result in termination. Again,she argued the note of April 1, 2008, Exhibit R-1, Tab 8, being a warning dealing with the Bowl-a-Thon, the letter of March 7, 2008, letter from Diana Poirier, Exhibit R-1, Tab 7, where Ms. Poirierstated “This is an official letter of reprimand for the actions taken and it will go on your employmentfile. I need to advise you that further violations of our policies will put your long-term employmentwith the ROC Society at risk”.243. Further, Ms. Martin argued with respect to the June 2, 2008, Special Olympics letter referred to inExhibit R-1, Tab 10, the last line of that letter states, “This is the second letter of reprimand that willbe placed on your employee file. I need you to know that a third letter of reprimand can and mayresult in termination of your employment with the ROC Society”.244. Ms. Martin argued there is no evidence to indicate the Complainant challenged those disciplinarynotices and thus, accepted them and accordingly, it is not true that he had an unblemished workhistory. In any event, she argued the events that came to light in July 2008, are serious enough tosupport termination.

245. Ms. Martin further argued in reply, the Respondent’s investigation was proper as they are not heldto an investigative standard that would be required of the police force and they met all the standardsrequired of a typical investigation in a workplace by an employer. She argued Andrea MacEachernwas the primary investigator and she spoke with the individual members as soon as possible after thecomplaints against the Complainant were made. She argued there is no evidence any of the membersinterviewed, felt rushed in providing their information or felt pressured.246. Ms. Martin argued the Respondent provided a full opportunity for the Complainant to present hisversion of events, but he failed to show up for a meeting on July 10, 2008, without sufficient reasonor to try and meet thereafter. She argued the Complainant knew the allegations were serious becausehe had indicated the RCMP had contacted him around July 10, 2008, regarding allegations of abuse.247. Ms. Martin argued the solicitor for the Complainant indicated that important witnesses such asMargie MacIntyre and Natasha Hatcher were not spoken to with respect to the allegations against theComplainant, however, she argued there was no evidence they were witnesses to any of the incidents.2011 NSLST 29 (CanLII)248. Ms. Martin argued if the Respondent’s investigation contained deficiencies, she referred to Lutzsupra, at paragraph 81, as follows:While we agree with Mr. Lutz that the process followed through theinvestigation up to the termination is an important issue, it is only one pieceof the puzzle. The Tribunal’s job is to decide whether Sears had just causeto terminate the employment of Mr. Lutz without notice, and in making thatdecision we considered all of the testimony and documents, including thecircumstances of the investigation and the dismissal. While we accept thatthere were problems with the investigation, we still conclude, afterconsideration of all of the evidence, that the findings of the investigationand the audit have largely held up to very intense scrutiny at the hearings.This is unlike the situation in Ribeiro. Further, while we have someconcern that, by the time reasons for dismissal and the opportunity to beheard were given to Mr. Lutz, the decision had in fact already been made,we are not prepared to hold that the comment of Cooper, J.A. in Plusiferrequires that conduct that would otherwise be considered to constitute justcause should be recharacterized as wrongful dismissal, because of suchprocess concerns.249. Ms. Martin argued the investigation was proper in this case.250. Ms. Martin argued in reply the solicitor for the Complainant downplayed the profanity and arguedin Exhibit R-1, Tab 4, there is a job description for the vocational trainer position that theComplainant held and the position summary states:The vocational trainer is responsible for providing vocational guidance toindividuals to achieve their personal goals and enhance their capacity forindependent employment.251. Ms. Martin argued the job description goes on to describe the position’s Areas of Responsibilitywhich include:• Help workers develop social and other life skills especially interpersonalrelationships with other workers and with staff.

• In order to serve the ROC program effectively it will be necessary forthe instructor to maintain standards of conduct in keeping with thosegeneral standards considered acceptable by the community as a whole.252. Ms. Martin argued the job description includes the incumbent must have the ability to “portray apositive image when representing the Society” and she indicated the standards were not new as theearly job description at Exhibit R-1, Tab 2, required the same standards.253. Further, Ms. Martin argued none of the profanity in this case, including the word “arse” would allbe within the standards considered acceptable by the community. She argued this is inconsistent withproviding guidance to the members to allow them to become independent in their employment.254. Ms. Martin argued in reply, as this hearing is a trial de novo, it is irrelevant there were no notesprovided to the Director of Labour Standards in the investigation by the Department of Labour aboutthe Bowl-a-Thon. She further argued where the Complainant indicated he did not want to attend theSpecial Olympics because he got migraine headaches from being outdoors in the sun, he testified atthe hearing he would be out in the sun all day when members were cutting grass. She argued thereis inconsistency in his testimony.2011 NSLST 29 (CanLII)255. Ms. Martin argued if this Tribunal should find there was no just cause to terminate the Complainant’semployment, he should not be reinstated as the relationship is irrevocably damaged and accordingly,he should not return. Ms. Martin argued under Section 21 of the Labour Standards Code thatreinstatement is permissible and reads as follows:21(3) Notwithstanding Section 72, where, after inquiry pursuant tosubsection (1) or (2), the Director concludes that an employer or anemployee has contravened a provision of this Act and he has been unableto effect a settlement, or an employer or employee has contravened theterms of a settlement under this Section, the Director may, in writing, orderthe contravening employer or employee to. . .(c) for greater certainty and without limiting the generality of clauses (a)and (b), reinstate the employee,256. Ms. Martin argued reinstatement is not an automatic right and the Complainant should not bereinstated for four reasons:1. The Complainant’s behaviour could open the Respondent to legal liability if heengaged in the same sort of behaviour again.2. Ms. Martin argued the Complainant will continue to challenge the management ofDiana Poirier, Executive Director, and she referred as an example in Exhibit R-1,Tab 6, being the so-called ‘bread letter’. She argued the letter expressly states aview that she conveyed a false impression and it was not just a concern, but anattempt to ambush her and accordingly, by signing the letter, the Complainantindicated he did not support her as Executive Director.3. Ms. Martin argued the Complainant has undermined the Respondent’s reputationand he is likely to do so if he returns. She argued for example, the Complainantspoke to the media about his termination of employment.4. Ms. Martin argued this is not a situation where the Complainant had inadequatetraining to perform his job function and argued he had training in positive principles

and non-aggressive behaviour change to assist in handling stressful and difficultsituations and despite that training, he made the inappropriate statements that causedhis termination. She argued overall the Complainant’s return to the workplacewould bring a risk of harm to members and be a challenge to the Executive Directorand to the Respondent’s reputation.257. Ms. Martin argued in reply to Mr. James, she denies there is any authority to the criteria he refers indetermining whether reinstatement is appropriate and says there is no legal authority to supportreinstatement over damages simply because a “particular job is important to the employee”. Shefurther argued it is wrong to say the Complainant had an unblemished work record as he had adisciplinary record in that he swore at members and physically accosted CD.258. Ms. Martin further argued in reply the Complainant does not have an excellent relationship with theclients or employees of the Respondent and she argued a number of employees of the Respondentcame forward against him and he did not call any current employees as witnesses. She argued KayeIsenor and Margie MacIntyre, who he called as witnesses, are former employees.2011 NSLST 29 (CanLII)259. Ms. Martin argued in reply, factors considered by the Tribunal in Van’t Hof v. South Shore DistrictHealth Authority (L.S.T. No. 1795, March 2004), are factors for considering whether an order ofreinstatement is appropriate, however, she argued, the Respondent disagrees with how that appliesto this case. She argued reinstatement is not appropriate because there has been a deterioration ofpersonal relations and there is a disappearance of the relationship of trust.260. Ms. Martin argued this would be a case for an order for compensation in the event just cause is notfound. She argued the compensation should be eight weeks salary less deductions as provided forunder Section 72 of the Labour Standards Code. She argued the order otherwise would be unjustfor two reasons, 1) the severity of the acts committed in this case by the Complainant deserves theminimum entitlement under the statute, and 2) to claim an amount more than the statutoryentitlement, for the Complainant’s failure to mitigate. She argued the Complainant testified he didnot take steps to mitigate as he was waiting to be reinstated and he did not actively pursue otheremployment and even indicated he does not like to go farther than the causeway and he has not takenany educational training and accordingly, he did not mitigate. She argued the employee has a dutyto actively mitigate his loss and the Tribunal is to consider efforts to mitigate and in this case, theComplainant made no efforts to mitigate and thus, he is not entitled to reasonable notice and theaward should be limited to eight weeks salary less deductions. She argued the Complainant hasrolled the dice that he will be reinstated with back pay. She argued the Respondent should not haveto pay for the Complainant’s gamble.261. Ms. Martin argued in reply that Mr. James argued on behalf of the Complainant, the onus is on theRespondent to show the Complainant did not take any reasonable steps to mitigate, however, sheargued the issue is the Complainant took no steps to mitigate. Further, she argued in reply Mr. Jamesargued the Respondent’s actions by contacting the RCMP was to diminish a dismissed employees’job prospects. She argued there is no logic to that as the Respondent or the RCMP did not publicizethe contact and the only media coverage was from the Complainant who had spoken to a certainmedia and thus, he brought the attention to himself. She further argued that the Respondent had tocontact the police if abuse was suspected.262. Ms. Martin further argued there is no merit to the argument by Mr. James that the Complainant’swork was specialized as she said his position as vocational trainer and skills included woodworkingand grounds work and they were not specialized and would be in demand in all communities. Sheargued in reply, there is no evidence the Complainant was precluded from seeking employment withemployers who do not have health plans to cover his medication as Mr. James argued theComplainant needed a medical plan with an employer. Further, she argued in reply the Complainant

could have moved this matter forward quicker as there was an approximate nine month delay fromthe time the complaint being filed to when the decision of the Director of Labour Standards wasrendered and under the Labour Standards Code, if a decision is not made by the Director of LabourStandards within one month of receipt of the complaint, it can be appealed directly to the LabourStandards Tribunal. Accordingly, she argued the process was not completed in a timely fashion.263. Further, Ms. Martin argued if the Tribunal is inclined to award an amount for reasonable notice foran approximate 15 years of service, the Respondent seeks a reduction for the failure to mitigate andshe argued at least a 50 percent reduction would be appropriate for the following reasons:1. The Complainant failed to mitigate his loss as revealed in his own testimony.2. The Complainant could have moved the matter forward in accordance with Section23(2)(b) of the Labour Standards Code which provides as follows:23(2) The Tribunal shall not proceed with any matterarising out of a complaint referred to in subsection (1) untilthe complainant has made a complaint in writing to theDirector in the form set out in the regulations and either. . .(b) one month has elapsed and the complainant has notreceived either notice of an order by the Director undersubsection (3) of Section 21 or a notice of hearing inaccordance with subsection (1) of Section 24.2011 NSLST 29 (CanLII)264. Accordingly, Ms. Martin argued the Respondent has proved the incidents for just cause to terminatethe Complainant without notice or pay in lieu of notice. Alternatively, she argued if it is found thereis no just cause, then pay in lieu of notice should be ordered and not reinstatement.DIRECTOR’S ARGUMENT265. Dana MacKenzie, on behalf of the Director of Labour Standards, argued the Complainant startedwork with the Respondent in 1993 and thus, was a 16 year employee at the time of termination inSeptember 2008. She argued the burden is on the Respondent employer to show on the balance ofprobabilities that just cause existed.266. Ms. MacKenzie argued the Labour Standards Tribunal in Beck v. 1528801 Nova Scotia Limited,c.o.b., Lunenburg County Winery and/or Hackmatack Farm (L.S.T. No. 2297, June 2010), conducteda causal analysis in the case of a 10 year employee and she referred to Roberts v. Colchester YMCA(L.S.T. No. 1338, July 1996), for the proposition that the test “... for determining whether just causeexists is closer to the labour relations model than the common law one”. She argued the Tribunalfound at paragraph 55, as follows:. . .As a result, the Tribunal requires that employer use progressivediscipline when allegations of incompetence or misconduct arise, allowingthe employee the opportunity to correct their performance before theultimate step of termination is used against them. The Nova Scotia AppealDivision in Babcock v. Weickert (supra) has added to this the premise thatthe opportunity for the employee to correct his or her performance must bea real one, with adequate time being given to effect the required correction.267. Ms. MacKenzie argued in Beck supra, the Tribunal also referred to the principle from Roberts supra,at paragraph 58, that, “It is clear that one single instance of either conduct is insufficient to ground

summary dismissal, unless the alleged conduct is extremely serious (such as theft, dishonesty, breachof trust).”268. Ms. MacKenzie argued the issues in this case are three-fold, namely:1. Has misconduct been proven on a balance of probabilities by the Employer?2. If the misconduct is proven, was it of such a degree that the Employer could foregothe requirements of progressive discipline?3. Is reinstatement an appropriate remedy?269. Ms. MacKenzie argued with respect to the first issue, the evidence on the issue of allegedmisconduct, many individuals were not called upon to testify and accordingly, it is all hearsayevidence. She argued neither the Complainant nor the Respondent called CF, the client who allegedmisconduct, or those who gave statements to give evidence under oath regarding the statements theymade on July 8 and 9, 2008. She argued the only evidence this Tribunal has is from the interviewers,mainly, Andrea MacEachern and from Diana Poirier who interviewed the person who filed thecomplaint. She argued similarly there are no audio recordings of interviews which would be ofassistance and the notes of Ms. MacEachern are not verbatim and were in a question and answerformat which she compared with sparse descriptions of both the questions asked and the responsesgiven, and the inability to determine any prompting of the members.2011 NSLST 29 (CanLII)270. Ms. MacKenzie also argued both Ms. MacEachern and Ms. Poirier both admitted they did not haveexperience conducting workplace investigations, notwithstanding Ms. Poirier indicated this was amini investigation. Further, she cautioned that Ms. MacEachern interviewed the other members afterinterviewing the person who filed the initial complaint and Ms. MacEachern told the members shewas questioning them due to CF filing a complaint. She argued this could lead to a potential of themembers’ answers being tainted.271. Ms. MacKenzie argued the RCMP were called before the Complainant was given an opportunity torespond to statements made by the members and at no time prior to his dismissal was he shown thenotes taken by Ms. MacEachern.272. Ms. MacKenzie argued there was some corroboration in the statements made by the members;however, she argued what is absent is any context for the behaviours described. She argued as anexample, CH answered yes to the question, “have you ever been intimidated by Allison (shakingfists, waving ruler, or yelling)”. CH answered, “sometimes he shakes his fist at you”, Exhibit R-1,Tab 12. Ms. MacKenzie argued we are left to wonder if the ‘you’ refers to CH himself or whetherit is used in the collective sense of all members in the Complainant’s workshop. Ms. MacKenzieargued even assuming the latter, there is evidence from the Complainant that CH liked to wrestle withhim and they often put up their fists in greeting. She argued the shaking of fist behaviour iscorroborated in the statement of CG, CF, and CD, Exhibit R-1, Tab 12. Thus, she argued, there maybe corroboration, but the question still remains of what exactly were they corroborating?273. Further, Ms. MacKenzie argued the questions asked by Ms. MacEachern who made up thequestionnaire could also create problems. She argued they sometimes referred to different behavioursor were unclear in the information they were trying to elicit. She argued for example, CE was asked“has Allison ever taken you or someone else by the arm or collar leading you somewhere?” Hisanswer according to Ms. MacEachern was a simple “yes - CD- while ago”. She argued one is leftto wonder if CE was answering the collar part or the arm part to that question and it is very differentin terms of being abusive. She argued the same questions were asked of CH, CC, CD and CG.274. Ms. MacKenzie argued on the issue of credibility, the credibility of Margie MacIntyre and KayeIsenor who testified on behalf of the Complainant, was not impeached and they testified in their many

years of working with the Complainant, they had never witnessed any rough or inappropriatetreatment of the members by him. Further, she argued Ms. MacEachern testified the Respondent isa beehive of activity with a flow of staff from upstairs and downstairs and she testified during hertime working at the Respondent, she never saw anything of concern regarding the Complainant’srelationship with members.275. Further, Ms. MacKenzie argued the investigation that took place did not include other employees ofthe Respondent. She argued Mr. Gunn who was the Chairman of the Board of the Respondent spokeof grumblings he heard about the Complainant, but no evidence was led from any member, apartfrom the Respondent, who experienced a problem with the Complainant. She argued no member ofthe community, apart from the member who made the complaint, experienced any problem with theComplainant.276. Ms. MacKenzie argued the Complainant did admit to placing CD over his shoulder at one point totake him upstairs, but CD had hit him twice in the back while working on a saw. She argued theevidence of the Complainant was that that was the only time he did something like this; however, itoccurred while Kaye Isenor was the previous manager, prior to the current Executive Director, andMs. Isenor testified she did not discipline the Complainant.2011 NSLST 29 (CanLII)277. Further, Ms. MacKenzie argued the Complainant denied shaking a ruler at any of the members andhe disputed the allegation he forcefully removed CD from the SAERC pool. She argued with regardto the incidents of hollering that were reported, it is impossible to tell from the statements if thehollering was necessitated by the operating of the machinery and the hearing impairment of one ormore of the members as testified by the Complainant.278. Further, Ms. MacKenzie argued if the words “fuck” or the phrase “sit your arse down” were used,these were not sufficient on their own to warrant summary dismissal without warning. She furtherargued due to the lack of clarity around exactly what happened and what the Complainant is accusedof, the Respondent cannot forego the requirements of progressive discipline. She argued theRespondent referred to the letters relating to the Superstore bread which was signed by theemployees, the Bowl-a-Thon letter, and the Special Olympics letter as evidence of the culminatingincidents leading to misconduct. She argued the Respondent also refers to the August 7, 2008, noshow letter as part of the progressive discipline.279. Ms. MacKenzie argued progressive discipline was not used in this case. She argued none of theletters relate to the conduct that gave rise to the discipline and led to the dismissal. She argued theAugust 7, 2008 letter cannot be viewed as part of the chain of matters that led to dismissal. Further,she argued Tom Gunn testified these letters were not considered when the decision to discharge wastaken.280. Ms. MacKenzie argued Mr. Gunn and Ms. Poirier testified the Complainant was just not getting itand they were moving in a new direction in terms of client focus versus program approach.However, she argued there was no evidence of any meetings where the Respondent informed theComplainant his conduct was not meeting expectations or that new expectations were prevailing.281. Ms. MacKenzie argued the Order of the Director of Labour Standards did not provide forreinstatement, but for damages. She argued the Complainant testified he would be able to return andaccept direction from Ms. Poirier and Ms. Poirier testified if she had to, she would be professionalabout an order to reinstate the Complainant. She argued Mr. Gunn indicated reinstating theComplainant would have a negative impact in the perception of the Respondent, and would not beviewed favorably by the Board.282. Ms. MacKenzie argued in Morine v. L & J Parker Equipment Incorporated (L.S.T. No. 1727,

December 2001), the Tribunal commented on the remedy of reinstatement as follows at paragraph28:... reinstatement is a permissive power ... the Tribunal is not required toautomatically use its jurisdiction when Section 71 is violated. ... theTribunal must look to the facts of the case at hand and determine ifreinstatement is appropriate on a case by case basis.283. Ms. MacKenzie argued the appropriateness of reinstatement is not just the opinion of the employer,but the nature of the impugned conduct. She argued given the lack of clarity as to what the impugnedconduct actually is, it is up to the Tribunal to determine whether reinstatement is appropriate as theDirector is not opposed to reinstatement if the Tribunal finds it is appropriate.284. Ms. MacKenzie argued the facts relevant to determine the appropriateness of the remedy is not justthe opinion of the employer, but the nature of the impugned conduct. She argued in this case it isdoubtful the Respondent has proven the statements made by the members are true and that thedamaging effect of the allegations in a small community would affect the Complainant’s ability toseek alternate employment. She argued that matter cannot be discounted.2011 NSLST 29 (CanLII)285. Further, Ms. MacKenzie argued it is relevant the Complainant is not trained to do anything else andhe lives in a challenging economic climate in Cape Breton. She argued he had an unblemished workhistory prior to these complaints and any concerns could be addressed through increased training andperformance management.COMPLAINANT’S ARGUMENT286. Dennis James, on behalf of the Complainant, argued the issues are as follows:1. The Complainant submits that the Director was correct in finding that theComplainant was terminated from his employment as Vocational Trainer at theRegional Occupational Centre Society on September 11, 2008, without just cause,and without reasonable notice.2. The Complainant respectfully submits that the Director was in error in concludingthat reinstatement is not an appropriate remedy in this case.3. The Complainant respectfully submits that the Director was in error in deductingone month’s pay from the reasonable notice period due to a failure to properlymitigate.287. Mr. James argued in dealing with termination without just cause, it is an implied term of the contractof employment that the employer may only terminate employment for cause, or with reasonablenotice to the employee. He argued the determination of whether cause for summary dismissal existsis made objectively, with each case being assessed on its own merits. He argued in Baster v. Londonand County Printing Works, [1899] 1 Q.B. 901 at 904, Channell J. said:As to whether a single act would justify dismissal, that depends upon thecharacter of the act and duties of the man who does it ... The question is oneof fact and degree in all cases.288. Mr. James argued the appropriate level of misconduct which warrants summary dismissal has beendescribed as that of “the most serious kind”. He argued arbitral jurisprudence and the common lawhave recognized summary dismissal as the “capital punishment” of employment law (Stacey

Reginald Ball, Canadian Employment Law (Aurora: Canada Law Book, 2010) at 11-2). He arguedin Stilwell v. Audio Pictures Ltd., [1995] O.W.N. 793 (C.A.), LeBel J.A. stated:It is only in exceptional circumstances that an employer is justified insummarily dismissing an employee upon his making a single mistake ormisconducting himself once. The test in these cases is whether the allegedmisconduct of the employee was such as to interfere with and to prejudicethe safe and proper conduct of the business of the company, and therefore,to justify immediate dismissal. The proper, sensible and moral thing for thedefendant to have done here would have been to determine the contractunder an arrangement which could probably have been worked out to thesatisfaction of the plaintiff.289. Mr. James argued it has been stated that a higher degree of misconduct is required for the dismissalof long term employees (Ball supra, at 11-4). Modern Jurists and Arbitrators are inclined to considera range of factors in determining whether less severe punishment would be more appropriate thansummary dismissal. Such factors as prior service of the employee, age and length of employmentshould be considered (Morrell v. Grafton-Fraser Inc., [1981], 44 N.S.R. (2d) 289 (S.C.)). The degreeof misconduct to establish cause against an employee who has been with the employer for a longperiod of time and has made important contributions within the employer’s organization may begreater, and the employer should explore the possibility of reprimanding or otherwise discipliningthe employee in these circumstances. As Boisvert J. stated, to justify summary dismissal, themisconduct must be of such magnitude as to “overshadow the years and other considerations devotedby the employee to his employer” (Cormier v. Hostess Food Products Limited, [1984], 52 N.B.R.(2d) 288 (Q.B.)). Jurists are increasingly looking at the employment record in order to determinewhether just cause existed for summary dismissal, or whether the employer should have acted lessdrastically (Ball supra, at 11-5).2011 NSLST 29 (CanLII)290. Mr. James argued nowhere is this point made more evident than in the decision of the Supreme Courtof Canada in McKinley v. BC Tel, [2001] 2 S.C.R. 161. He argued there the Court held that a singleact by an employee does not automatically justify summary dismissal. The Court held that the testfor whether an act justifies dismissal must be a “contextual” one which involves examining all thecircumstances of the case in order to determine whether summary dismissal is “proportional” to theharm done by the act. The Court emphasized that a critical factor in this test is recognizing thesupreme importance of the job to the psychological as well as the economic well-being of theemployee. As Iacobucci J. explained:53. Underlying the approach I propose is the principle of proportionality.An effective balance must be struck between the severity of an employee’smisconduct and the sanction imposed. The importance of this balance isbetter understood by considering the sense of identity and self-worthindividuals frequently derive from their employment, a concept that wasexplored in Reference Re Public Service Employee Relations Act (Alta.),[1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p.368:Work is one of the most fundamental aspects in a person’slife, providing the individual with a means of financialsupport and, as importantly, a contributory role in society.A person’s employment is an essential component of his orher sense of identity, self-worth and emotional well being....54. Given this recognition of the integral nature of work to the lives and

identities of individuals in our society, care must be taken in fashioningrules and principles of law which would enable the employmentrelationship to be terminated without notice.291. Mr. James argued the Complainant was employed by the Respondent for over 16 years and had adiscipline free record for that period and was a well regarded employee who received goodevaluations and had the support of his co-workers. He argued this is supported by the testimonialevidence of Kaye Isenor, Ms. MacIntyre as well as Andrea MacEachern and Ms. Poirier.292. Mr. James argued there were evaluations carried out by the previous manager, Kaye Isenor in 2005and 2007 which gave very high praise to his performance and in particular, his relationship with theclients of the Respondent. Mr. James referred to Exhibit Book C-1, Tab 28, pages 42 to 43, beingthe first evaluation of November 21, 2005, and Ms. Isenor’s comments were as follows:Allison has a good relationship with clients and has their interest in mind.He is a self starter and comes up with very good ideas for work involvingclients.2011 NSLST 29 (CanLII)293. Mr. James further referred to the evaluation of May 29, 2007, Exhibit Book C-1, Tab 28, pages 44to 45, where Ms. Isenor stated as follows:Allison continues to be a valued employee who is interested in the welfareof the clients. Allison is excellent in approaching businesses for thepurpose of securing work contracts for his program which has beenprofitable. Very good at working with clients.294. Mr. James argued there is no evidence outside the statements to contradict this evidence. Further, heargued the Complainant denies the allegation as set out in the letter dated September 11, 2008, fromthe Respondent and says they are not true. Mr. James argued it is troubling the Respondent did notcall independent evidence or anyone to corroborate the conclusions the Respondent drew from thestatements of the members, namely CF, CE, CD, CC, CG and CH. He argued this is especially onthe face of the statements given by CC, CE and CG that contradict any conclusions of abuse orintimidation.295. Mr. James argued on July 10, 2008, the Complainant was informed in writing he was suspendedpending an internal investigation into allegations made against the Complainant. He argued theinvestigation was carried out in a deficient manner and was fundamentally flawed. He argued thequestions recorded were extremely suggestive and the responses recorded a lack of clarity. Heargued the interviewers did not take any steps to achieve clarity. He argued signatures were addedto the statements as only CC could read. He argued Andrea MacEachern could not assist inunderstanding the responses to certain details such as “has Allison ever taken you or someone elseby the arm or collar?” and she could not tell the Tribunal whether the responses indicated the arm orthe collar. He argued this is in contrast to the evidence of Ms. Isenor’s interview with CH, ExhibitR-6. He argued Ms. Isenor engaged CH in a conversation about his relationship at the Centre to fullyunderstand his concern. He argued Ms. Isenor’s discussion was more open and complete and showedan experienced approach.296. Further, Mr. James argued Ms. MacEachern when taking statements from the members advised themCF had made allegations against the Complainant and he argued this was very unsettling. Hedescribed her practice of rushing the members out of their workplace or home without warning.Further, he argued there was never any effort made by Ms. MacEachern or Ms. Poirier or anyone elseon behalf of the Respondent to go back for further clarification.

297. Mr. James further argued there was no disclosure to the Complainant of the statements that weremade against him. He argued the letter of July 10, 2008 from the Respondent advised theComplainant he was being laid off to facilitate an investigation, and the Complainant testified aninvestigation never happened. He argued the only investigation in the process was a meeting onAugust 22, 2008, where the Respondent attempted to make an issue of his not attending a meetingon July 10, 2008. He argued there was no evidence that warranted any discipline. He argued thatevidence is confusing in that when the Complainant was first contacted, he did not actually get themessage as his voice mail is not active and when a date for him to meet was first set, he wascontacted by the RCMP and that was the first he knew of the allegations against him.298. Mr. James argued the Complainant was never told by Ms. MacEachern the reason for being calledin for a meeting as he was at home on stress leave at the time. He argued the Complainant was nevergiven a copy of the statements for review, nor was he ever told of the particular circumstances theRespondent was relying on. He argued the Complainant did meet with officials from the Respondentwith his lawyer and they were provided with an insufficient summary of the allegations, Exhibit R-1,Tab 18. He argued when the Complainant asked for clarification of the details, he was told by theRespondent’s lawyer that “the Respondent’s lawyer will be asking the question”. He arguedaccordingly, the Complainant could not speak to them to provide an explanation.2011 NSLST 29 (CanLII)299. Mr. James further argued with respect to the conclusions drawn from the statements, three of the sixstatements expressly contradict the conclusions drawn by the Respondent, namely CC who was amember of the Board, CG and CE.300. Mr. James argued first dealing with CF’s statement, both Ms. MacEachern and Ms. Poirier testifiedCF was know for embellishment. He argued aside from the allegation of profane language, CF saidthe Complainant grabbed his arm on the way upstairs and kept pushing him and said ‘come on getthere’, yet none of the clients statements corroborate the suggestion of physical contact by theComplainant. The Complainant denies the allegations and he testified CF was a very large man witha volatile nature and was not a man you could push upstairs. He argued, nevertheless, the evidenceof the Complainant was that he continued to enjoy his relationship with CF who apologized withrespect to this matter.301. Mr. James argued the Respondent did not call anyone who was witness to the Complainant’s dealingswith CF or other clients, other than in a respectful manner. He argued the only suggestion of physicalcontact from the statements was the Complainant had contact with CD at the SAERC pool, when CDsaid he was grabbed by the arm and the Complainant testified CD was having an upsetting momentand he denied touching CD other than placing his hand on his back to steady him as he was goingup the stairs. He argued the Complainant testified he was able to get CD settled down and walkedhim back to the Centre.302. Mr. James argued Ms. MacIntyre recalled the Complainant returned early from swimming with CDand said everything appeared to be calm. He argued the Complainant’s testimony was he deniedgrabbing CD’s arm and argued he was not aggressive and he made connection with CD by makingeye contact. He argued, accordingly, there was no evidence any abuse occurred at the SAERC pool.303. Mr. James argued the Complainant at the meeting of August 22, 2008, spoke of an incident when heput CD over his shoulder to carry him upstairs to Ms. Isenor’s office, and this happened early in hisemployment with the Respondent and there was no suggestion of abuse and this occurred after CDhad struck the Complainant on the back twice while operating a power saw. He argued Ms. Isenortestified about this matter as the Complainant had taken CD to her and Ms. Isenor did not see theComplainant carrying CD over his shoulder and there was no disciplinary matter to deal with.304. Mr. James argued with respect to CE and CG, they all answered in their statements that they were

not intimidated or threatened by the Complainant. He argued CG referenced his cursing, but therewas no clarification on what he meant and the only context in CG’s statement was ‘sit your arsedown’. He argued this is not abusive and it is difficult to see that as cursing.305. Mr. James argued the statements given by the clients lacked detail, and for an example he argued inCH’s statement he said the Complainant was very quick with him, when he asked ‘what if I cut CIwith a knife’. He argued even if this is true, it would not be inappropriate to quickly respond to thatsuggestion of cutting someone with a knife. He argued the other comments in the statements of CHshow nothing to indicate abusive behaviour. He further argued the Complainant’s relationship withhis cousin, CH, involved them shadow boxing when CH first arrived in the morning and this was justa friendly daily ritual where they would pretend to box.306. Mr. James argued with respect to the letter alleging abuse, being the letter dated September 11, 2008,the statements do not support any allegations of abuse. He argued the statements lack clarity andreliability to support an assertion of physical or other abuse.307. Mr. James argued the Respondent did not speak to other staff members and argued Ms. MacIntyrewas a long term employee who worked for the Respondent before the Complainant was hired. Heargued Ms. Isenor was available even though she had retired and Natasha Hatcher who signed theso-called bread letter was also not approached with respect to the allegations of abuse.2011 NSLST 29 (CanLII)308. Mr. James argued with respect to the use of profanity, the Complainant denies using such languageand argued neither Ms. MacIntyre, Ms. Poirier nor Ms. Isenor ever heard him speak in this mannerto any client. He argued in the course of the Complainant’s 16 years if he used the word “fuck” thatwould not be a basis for cause without further progressive discipline, and the Complainant deniesusing that word. However, the Complainant conceded he may have said “sit your arse down” but hedenies speaking to clients in that way.309. Mr. James argued Ms. Isenor, Ms. MacIntyre, Ms. Poirier and Ms. MacEachern would haveencountered profanity while working with the Complainant, and they did not witness any suchprofanity, and the Complainant testified he dealt respectfully with clients.310. Mr. James argued there are three incidents that are referred to by the Respondent and he argued it isunnerving that Mr. Gunn, Chairman of the Board, indicated the Complainant was ‘just not gettingit’, but did not fully explain what he meant other than he felt an attitude from the Complainant fornot fitting in with some new program direction. He argued there was no Board record around thedismissal, according to Mr. Gunn’s evidence and that leaves a question of what facts were truly takeninto account by the Board on termination.311. Mr. James argued the three incidents were:1. The so-called bread letter;2. The Bowl-a-Thon;3. The refusal to attend the Special Olympics.312. Mr. James argued with respect to the bread letter, Exhibit R-1, Tab 6, the Complainant followed thepolicy set out by the Board. He argued Mr. Gunn’s testimony alluded to workplace environmentresulting in a policy “Respectful Work Environment” Exhibit R-1, Tab 5, which sets out the line ofcommunications and that if an employee is not satisfied with the response from the immediatesupervisor they are to bring the issue to the Chair of the Personnel Committee or the Board President.Mr. James argued that is exactly what the employees did in Exhibit R-1, Tab 6, which was authoredby Ms. MacIntyre out of concern with the confusion over the supply of bread to the Superstore andmore critically about the bakery. He argued there was a de-emphasizing of past vocational activities

like woodworking and the bakery towards another strategy. He argued the evidence is clear the staffwere not clear on the direction of the Board and was raising the concern to the Board President andpresented the letter to the acting Executive Director, Ms. MacEachern, and according to theunimpeached evidence of Ms. MacIntyre and the Complainant, Ms. MacEachern echoed the concernof the workers, but she would not go on record to encourage the employees to do it. He arguedbefore giving the letter to the Board, Ms. MacEachern read the letter to Ms. Poirier and at no timedid either of them advise the employees, all who were long term, that they considered the letter tobe a breach of policy.313. Mr. James argued accordingly, the letter cannot be seen as warranting the reprimand that theComplainant received, Exhibit R-1, Tab 7, as they were just following the policy of a respectful workenvironment.314. Mr. James argued with respect to the Bowl-a-Thon, the only note on the Bowl-a-Thon was on April1, 2008 and the notes were not provided to the Director of Labour Standards during theirinvestigation, but were introduced at this hearing, Exhibit R-1, Tab 8. He argued there is nothing inMs. MacEachern’s evidence to say the Complainant was ever formally disciplined for his refusal toattend.2011 NSLST 29 (CanLII)315. Mr. James argued with respect to the Special Olympics, the direction to attend was a prerogative ofthe Board, however, he argued this was a change in practice from the past where the employees weretold Special Olympics were not considered part of the mandate, and this was supported by thetestimony of Ms. Isenor. He argued the Complainant gave evidence he did not want to attend theOlympics due to health reasons relating to migraines. He argued there was no apparent recognitionby Ms. MacEachern that this request was a change in a long standing practice. He argued it was clearthere were transition issues between the leadership by Ms. Isenor and Ms. Poirier which wascomplicated by Ms. MacEachern acting as interim Executive Director while Ms. Poirier was off onmaternity leave. He argued open and full communication on differences in practices from the pastcould have been dealt with in a more effective manner and this did not warrant dismissal.316. Mr. James argued the Respondent did not meet the burden to support the allegations set out in theletter of September 11, 2008, terminating the Complainant’s employment and the Complainant’sactions did not even warrant progressive discipline or a reprimand. He further argued the two lettersof reprimand received from the new Executive Director were unrelated to the reasons given for hisdismissal as per the testimony of Mr. Gunn as well as that of Ms. Poirier.317. Mr. James argued as stated by Justice Iacobucci in McKinley supra, “an effective balance must bestruck between the severity of an employee’s misconduct and the sanction imposed”. He argued theComplainant denies he was abusive, and there is no record to indicate the Respondent consideredother options to respond to the complaint. He argued without exploring the merits of thecircumstances that gave rise to the letters of reprimand, namely his prior unblemished record, yearsof service, age, despite his actions, should only have gone as far as a reprimand at the most.318. Mr. James argued the Complainant should be reinstated under Section 26(2)(c) of the LabourStandards Code and refers to the Order of the Director, citing Kennedy v. Sobeys Inc. (L.S.T. No.2050, March 2007), at paragraph 262:. . .Section 71(1) in conjunction with Section 26(2) of the Labour StandardsCode affords the possibility of an employee returning to work in the eventthe employee has been with an employer for ten or more years of continuingservice and has been dismissed or suspended without just cause. Thisreinstatement option is a “make whole remedy” which is significantlystronger than the common law obligation of reasonable notice. . .

319. Mr. James argued the Tribunal in Kennedy supra, also cites Stacey Reginald Ball in looking at theappropriateness of the reinstatement remedy. The 2010 edition of the Ball text reads:Subject to extenuating circumstances, reinstatement should be the primaryremedy granted by adjudicators when it is asked for by employees. Mostadjudicators start from the assumption that reinstatement is a very importantremedy for a successful complainant. As noted by one adjudicator, shouldthe employee eventually feel that reinstatement is not in his or her bestinterests, the employee can later resign.320. Mr. James argued reinstatement is appropriate in this case and it should be the primary remedy. Heargued adjudicators must be aware of spurious reasons of employers as to why reinstatement shouldnot be ordered and cautious of allegations of personality conflicts designed to evade a reinstatementorder.321. Mr. James argued the Van’t Hof case supra, factors are not present in this situation; there was nodeterioration of personal relations between the Complainant and others in the workplace. He arguedthere is evidence that other employees and clients of the Respondent enjoyed a good workingrelationship with the Complainant and the relationship of trust is still present. He argued there is noattitude on the Complainant’s part to believe reinstatement could not bring improvement and theallegations against him were unfounded and without merit.2011 NSLST 29 (CanLII)322. Mr. James argued both Ms. MacEachern and Ms. Poirier testified each had a positive workingrelationship with the Complainant until these allegations. He argued Ms. Poirier even confirmed thatshe spent considerable time in the workshop with him and she observed positive interaction betweenhim and the clients. He argued Ms. Poirier testified she also enjoyed a positive working relationshipeven considering the bread letter and the Special Olympics.323. Mr. James further argued both Ms. Isenor and Ms. MacIntyre each confirmed the Complainant wasa very positive colleague and he enjoyed an excellent working relationship with staff and clients.He argued Ms. Isenor’s evaluations conducted in 2005 and 2007 were proof of this. He argued theonus is on the employer to show that reinstatement is not appropriate and no evidence wasintroduced.324. Mr. James argued Ms. Poirier testified she would manage reinstatement if the Tribunal so ordered.He argued Mr. Gunn’s testimony was vague and imprecise, but there was no evidence that wouldallow the Tribunal to refuse reinstatement. He argued both the Complainant and other staff werehaving difficulty understanding directional changes and management could have had betterrecognized the changes in long standing practices, as seen from the evidence of Ms. MacIntyrearound the role of the bakery and the unilateral change to the Complainant’s vacation schedule. Heargued this is a perfect illustration of the need for better communication.325. Mr. James argued these incidents were more symptomatic of transition in leadership. He argued theComplainant was passionate about his work and the value he places in working with the clients andhe continues to enjoy positive relationships and interaction with clients who gave statements.326. Mr. James argued if the Tribunal does not order reinstatement that 14 months notice is appropriatenotice with no reduction for mitigation. He argued the seminal case dealing with reasonable noticeis Bardal v. Globe & Mail Ltd., [1960] 24 D.L.R. (2d) 140, at paragraph 21, in which the court stated: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

character of the employment, the length of service of the servant, the age ofthe servant and the availability of similar employment, having regard to theexperience, training and qualifications of the servant.327. Mr. James argued the Bardal case indicates there is no precise method to determine the period ofreasonable notice required, but is just a guideline as to the calculation of reasonable notice. Heargued some of the factors are: length of service; age; lack of employment opportunities; specialists;character of employment; direct and indirect reports; whether employed by a single employer for asignificant length of time; failure of employer to provide letter of references; limited formal educationand skills; and improper cause allegations.328. Mr. James argued with respect to mitigation, the onus is on the employer to show the employee eitherfound or, by exercise of proper industry in the search, could have procured similar employment. Heargued, in other words, the employer must show not only that the Complainant had failed to takereasonable steps to mitigate, but also could likely have obtained alternative employment. He arguedthe standard for mitigation is not perfection. He referred to Christianson v. North Hill News Inc.,[1993] 106 D.L.R. (4 th ) 747 (Alta. C.A.). He argued the Alberta Court of Appeal correctly stated thatall a Claimant needs to do is make what at the time is an objective reasonable decision. He or sheneed not make the best possible decision. In particular, the courts will not usually expect one facedwith a breach of contract to take steps which are risky or unsavory. The onus of proof is on thedefendant, so any gap in the evidence accrues to the Claimant’s benefit. The defendant must showthat the Claimant’s actions were unreasonable, not in one respect, but in all respects.2011 NSLST 29 (CanLII)329. Mr. James argued personal factors pertaining to the dismissed employee may be considered indetermining whether a decision concerning mitigation was reasonable or unreasonable. The natureof family attachments and obligations will be relevant to the geographical range of the search foralternative employment, for example (Tennant v. Greyhound Lines of Canada Ltd., [1988] B.C.J. No.1573, 22 C.C.E.L. 299) Economic circumstances of the plaintiff may be relevant in determiningwhether mitigation efforts have been reasonable since these circumstances may affect the steps thata reasonable person would take in mitigation of loss.330. Mr. James argued with respect to mitigation, the Complainant’s age of 52, lack of employmentopportunities in his line of work that he had been doing for 16 years have been fairly specialized;character of his employment and reporting structure. He argued the Complainant has had only oneemployer for the past 16 years, and a lack of reference, together with formal education of grade 8 andthe improper cause allegations against him in a small close-knit community, all favour the 14 monthspay in lieu of notice as found by the Director of Labour Standards.331. Mr. James argued also the allegations by the Respondent to the RCMP, resulting in no subsequentinvestigation or follow-up, had an effect on his job prospects. He argued the onus is on theRespondent to show the Complainant could have found other suitable employment, and show notonly that he failed to take all reasonable steps to mitigate, but could likely have obtained alternateemployment, which they have not done.332. Further, Mr. James argued the Complainant has family responsibilities and connections whichpreclude him from moving far to obtain employment and he also has medical conditions whichrequire expensive medications that were formerly covered by benefits with the Respondent. Heargued the Complainant cannot afford those benefits and he has been precluded from seeking workwith employers who do not offer those medical benefits.333. Mr. James further argued the fact the Complainant did not request a hearing directly to the Tribunal,due to the Director of Labour Standards not issuing an Order within one month from the complaintbeing filed, should not prejudice the Complainant with respect to his duty to mitigate. He argued the

Complainant filed a complaint in a timely manner and responded to the requests of the Director ofLabour Standards Office in a timely manner.334. In summary, Mr. James argued he requests this Tribunal to use its discretion to order reinstatementof the Complainant to his former position together with all lost wages and benefits accrued from thedate of wrongful dismissal and his reinstatement.DECISIONS AND REASONS335. The Complainant commenced employment as a vocational trainer with the Respondent on September16, 1993, and continued in that position until he was terminated on September 11, 2008. There isno dispute with respect to the Complainant’s period of employment with the Respondent or hishourly rate at the time of termination of $16.29 per hour for approximately a 40 hour week.336. There is also no issue with the fact the Complainant was terminated without notice or pay in lieu ofnotice for the reasons set forth in the termination letter of September 11, 2008, referred to in ExhibitR-1, Tab 19, specifies the reason for dismissal as follows:2011 NSLST 29 (CanLII)This dismissal is for cause.The cause is your serious misconduct in the course of your employment.You have engaged in abusive conduct with ROC Centre clients, includingyelling and cursing at clients, ordering clients about with threats,intimidating and teasing some clients to the point of harassment. Certainclients have reported that they are afraid of you.337. The termination letter goes on to provide, “Your conduct is completely contrary to the ROC Centre’scommitment to treating those it serves with respect and dignity”.338. The Complainant filed a complaint with the Department of Labour under Section 71 of the LabourStandards Code which provides as follows:71(1) Where the period of employment of an employee with an employeris ten years or more, the employer shall not discharge or suspend thatemployee without just cause unless that employee is a person within themeaning of person as used in clause (d), (e), (f), (g), (h) or (i) of subsection(3) of Section 72.339. There is no dispute about the Complainant’s period of employment or any arguments that theexceptions apply in this case.340. The Hearing before this Tribunal is a trial de novo and the Complainant is appealing the Director’sOrder of July 3, 2009, that concluded just cause did not exist; however, ordered pay in lieu of noticeand not reinstatement. The Complainant has cross-appealed the Director’s Order and has requestedreinstatement.341. The Respondent has appealed the Order of the Director of Labour Standards on the basis that therewas cause to summarily dismiss the Complainant.342. The Tribunal in Beck v. 1528801 Nova Scotia Limited, c.o.b., Lunenburg County Winery and/orHackmatack Farm (L.S.T. No. 2297, June 2010), in referring to Roberts v. Colchester Young Men’sChristian Association (L.S.T. No. 1338, July 1996), indicated the test in determining whether justcause exists is closer to the Labour Relations model than the common law one, at paragraph 55:

. . .As a result, the Tribunal requires that employer use progressivediscipline when allegations of incompetence or misconduct arise, allowingthe employee the opportunity to correct their performance before theultimate step of termination is used against them. The Nova Scotia AppealDivision in Babcock v. Weickert (supra) has added to this the premise thatthe opportunity for the employee to correct his or her performance must bea real one, with adequate time being given to effect the required correction. . .343. The Tribunal also referred to the principal in Roberts supra, that one single incident of conduct isinsufficient grounds for summary dismissal unless that one conduct is extremely serious (such asdishonesty, breach of trust).344. Further, the Tribunal was presented with a case by the solicitor for the Complainant in Baster v.London & County Printing Works, [1899] 1 Q.B. 901 at 904, where Justice Channell said:2011 NSLST 29 (CanLII)As to whether a single act would justify dismissal, that depends upon thecharacter of the act and duties of the man who does it ... The question is oneof fact and degree in all cases.345. Further, the Tribunal was referred by Mr. James on behalf of the Complainant to Stilwell v. AudioPictures Ltd., [1955] O.W.N. 793 (C.A.), where Justice LaBelle of the Court of Appeal stated,It is only in exceptional circumstances that an employer is justified insummarily dismissing an employee upon his making a single mistake ormisconducting himself once. The test in these cases is whether the allegedmisconduct of the employee was such as to interfere with and to prejudicethe safe and proper conduct of the business of the company, and, therefore,to justify immediate dismissal. The proper, sensible and moral thing for thedefendant to have done here would have been to determine the contractunder an arrangement which could probably have been worked out to thesatisfaction of the plaintiff.346. Further, the Tribunal was referred to the Supreme Court of Canada in McKinley v. BC Tel, [2001]2 S.C.R. 161, 2001 S.C.C. 38, where the court held a single act by an employee does notautomatically justify summary dismissal. The court held the test for what justifies dismissal mustbe a contextual one which involves examining all the circumstances of the case in order to determinewhether summary dismissal is proportional to the harm done by the act. Iacobucci J. said atparagraphs 53 and 54:53. Underlying the approach I propose is the principle of proportionality.An effective balance must be struck between the severity of an employee’smisconduct and the sanction imposed. The importance of this balance isbetter understood by considering the sense of identity and self-worthindividuals frequently derive from their employment, a concept that wasexplored in Reference Re Public Service Employee Relations Act (Alta.),[1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p.368:Work is one of the most fundamental aspects in a person’slife, providing the individual with a means of financialsupport and, as importantly, a contributory role in society.

A person’s employment is an essential component of his orher sense of identity, self-worth and emotional well-being.. . .54. Given this recognition of the integral nature of work to the lives andidentities of individuals in our society, care must be taken in fashioningrules and principles of law which would enable the employmentrelationship to be terminated without notice. . . .347. There are numerous authorities dealing with these legal principles, but suffice to say the Tribunalagrees with the principles referred to and must determine the following issues:1. Has misconduct been proven on the balance of probabilities by the Respondent?2. If misconduct has been proven, was it of such a degree that the Respondent couldforego the requirements of progressive discipline?3. Is reinstatement an appropriate remedy? If not, what is the appropriate notice periodfor pay in lieu of notice?4. If reinstatement, did the Complainant fail to mitigate? Is so, should there be anyreduction in the notice period for pay in lieu of notice?2011 NSLST 29 (CanLII)BACKGROUND348. The Tribunal finds there is no dispute the Respondent is a non-profit organization based mainly inPort Hawkesbury, Nova Scotia, that assists mentally challenged people through personal andvocational training. The Complainant was employed as a vocational trainer in the Respondent’swoodworking program. The program teaches clients of the Respondent work in carpentry skills andthey made such items as highway stakes, picnic tables and some outdoor furniture as well asperforming lawn maintenance services. Part of the Complainant’s duties involved training the clientsof the Respondent in using woodworking equipment such as saws, power saws, drills, and other toolsand machinery to assist them in becoming independent and to help them develop social and life skills.349. The Tribunal finds the Respondent serviced contracts for lawn mowing and recycling and as such,the Complainant would take some clients of the Respondent along with him to teach them respectingthat type of work.350. Further, the Tribunal finds the Complainant was also responsible for the direct supervision of theclients involved in the woodworking program. In addition to that, the Complainant accompaniedclients to recreational swimming and provided assistance to the male clients in the washrooms andchange rooms.351. The Tribunal finds the Complainant conceded he was aware of the Respondent’s policy dealing withcorrective action dated April 28, 2005, Exhibit R-1, Tab 1A, as well as the Code of Conduct, ExhibitR-1, Tab 1B, and an excerpt from that Code of Conduct indicated as follows:Employees shall perform reasonable job duties, even if not part of the jobdescription, as assigned by the Executive Director/Designate.352. The Tribunal finds further, the Complainant acknowledged he was aware of the abuse policy, ExhibitR-1, Tab 1C, which provided, inter alia, that suspected abuse must be reported to the police and ifapplicable, the alleged violator shall be suspended with pay pending further investigation.353. The Tribunal finds the Complainant further acknowledged the job description referred to in ExhibitR-1, Tab 2, which indicated, inter alia, “perform other duties as assigned by the manager”. He

acknowledged a new job description was created in July 2007, after the new Executive Director,Diana Poirier, became employed, Exhibit R-1, Tab 4, which also has similar provisions, but moredetails, and which also indicated he was “to complete other duties from time to time that may berequired” and he was to report to the Executive Director.354. The Tribunal finds the Complainant acknowledged he signed a Respectful Work Environmentdocument, Exhibit R-1, Tab 5, on January 3, 2008, which provided, inter alia, as follows:Lines of Communication: Employees are encouraged and expected tobring any questions, concerns or grievances to their immediate supervisor.If they are not satisfied with the response of their supervisor they areencouraged to speak to their supervisor’s immediate supervisor. If they arestill not satisfied with the response, they are to bring the issue, in writing tothe Chair of the Personnel Committee or the Board President.355. The Tribunal finds the Complainant acknowledged he agreed to abide by that policy as well as otherpolicies of the Respondent. Further, the Complainant acknowledged part of the Code of Conductpolicy, Exhibit R-1, Tab 1B, stated inter alia, as follows:2011 NSLST 29 (CanLII)Employees shall respect the rights of others. I.e. not threaten or to endangerany person’s life or health, either deliberately or through carelessness.Conduct that causes or threatens harm to others or that constitutespersistent, unwanted conduct will not be tolerated.356. The Tribunal finds the Complainant acknowledged to abide by Exhibit Book C-1, Tab 28, pages 3and 4, namely, “Employees are to be courteous and respectful towards fellow staff member, clients,administrators, Board of Directors, family member and customers. Disruptive, discourteous and/orinsubordinate conduct will not be tolerated. Employees shall maintain appropriate workplacebehaviour, which fosters teamwork. Without these qualities, the Centre cannot achieve its goal inan effective, efficient manner.”EVENTS LEADING UP TO TERMINATION357. The Tribunal finds the events leading up to the termination of the Complainant arose out of a privatemeeting between a client of the Respondent, CF and Arlene Samson and Tanya Bungay. CF hadbeen a member of the Respondent since about 2002 and he was a mentally challenged adult and healleged the Complainant threatened to hit him with a 2 x 4 and the next day, July 4, 2008, he revealedother incidents as follows:1. Allison Marchand pulled on the collar of his shirt.2. Threatened him and others with a ruler.3. Told him to bend over so he could hit them on the behind.4. Mr. Marchand cursed at them telling them to “sit your arse down” and “button yourlips”.5. Grabbed the top of CF’s arm hard and said you are coming with me.He said those threats had been happening for a long time.358. The Tribunal finds as this was an allegation of abuse, the Department of Community Services hadto be notified under the Respondent’s policy and a notification of incident was prepared and signedby the Executive Director, Diana Poirier, on July 22, 2008, in the presence of Andrea MacEachernwho had indicated on July 3, 2008, an incident form was documented by Arlene Samson and TanyaBungay that CF alleged verbal and physical abuse by the Complainant, and he alleged other members

of the Society were also physically and verbally abused.359. The Tribunal heard from Andrea MacEachern who at the time of the incident was filling in or actingas Executive Director of the Respondent as Diana Poirier, the Executive Director who startedemployment around June 2007, was on maternity leave.360. The Tribunal accepts the testimony of Andrea MacEachern of her being requested by the ExecutiveDirector to investigate these allegations as quickly as possible and in so doing, she prepared a seriesof five questions to be asked to those named in the incident report by CF. The Tribunal finds it isnot clear whether Ms. MacEachern made the questions up herself or in conjunction with assistancefrom Diana Poirier. Nevertheless, the five questions asked of the members named in the incidentreport are as follows:1. Has Allison ever cursed at you or someone else?2. Has Allison ever taken you or someone else by the arm or collar leading themsomewhere?3. Have you ever felt threatened by Allison?4. Has Allison ever made you feel intimidated by waving a ruler or fist or yelling?5. Have you ever witnessed him doing this to someone else?2011 NSLST 29 (CanLII)361. The Tribunal finds Andrea MacEachern and Diana Poirier did not have any prior experience ininvestigating incidents of this nature. The Tribunal finds prior to Andrea MacEachern meeting withthe members of the Respondent named in the incident report, she and Diana Poirier met with CF onJuly 8, 2008, and handwritten notes were taken, Exhibit R-1, Tab 12, at pages 7 to 100. Further,those handwritten notes were typed up by Ms. Poirier, Exhibit R-1, Tab 13, dated July 8, 2008.362. The statements that were alleged by CF that were made by the Complainant to members of theRespondent included the following:• Shut your fucking mouth before I punch you• Shut your fucking mouth• Sit your arse down• Button your lip• Do you want to go back to the Centre?• You are coming with me.• Don’t care if you are in your cloths or birthday suit.• You are going to the office.• Let’s go before I drag you there.363. The allegations were the Complainant engaged in the following actions:• Shaking his fist at a member.• Shaking a yardstick at a member.• Threatening to hit a member with a 2 x 4.• Holding a ruler and threatening to hit a member.364. The Tribunal finds these verbal statements and actions were related by CF as being carried out bythe Complainant to himself, CH, CD, CG, CE and CC.365. The Tribunal finds Andrea MacEachern, on July 9, 2008, made arrangements to interview CD, CH,CG, CE and CC.366. The Tribunal is troubled that the testimonial evidence to support the grounds for dismissing the

Complainant for cause are based on hearsay evidence of members of the Respondent who did nottestify at the hearing. The Tribunal is troubled by the fact CF, who made the complaint, and thestatements of the other members named as being threatened or abused by the Complainant, did notattend the hearing to testify.367. The Tribunal is sensitive to the fact the Respondent chose not to call those members due to theirmental and intellectual disabilities and relied on the evidence of the interviewer and maininvestigator, Andrea MacEachern, and Diana Poirier who only met with CF and not the other namedmembers who were interviewed.368. Further, the Tribunal finds neither Andrea MacEachern, Diana Poirier nor Tom Gunn, the Presidentof the Respondent’s Board, witnessed any of these incidents of abuse by the Complainant while hewas employed by the Respondent.369. Further, the Tribunal accepts the testimony of both Diana Poirier and Tom Gunn that the reasons forthe termination of the Complainant without notice or pay in lieu of notice for cause were due to whatthey perceived as allegations of abuse by the Complainant towards not only CF, but the others namedby him and who gave statements, and not for any other cause.2011 NSLST 29 (CanLII)370. The Tribunal finds from Diana Poirier’s testimony she issued a letter on March 7, 2008, Exhibit R-1,Tab 7, to the Complainant reprimanding him for going outside the lines of communication on therespectful work environment document that he signed on January 3, 2008, in reference to a so-calledbread letter, Exhibit R-1, Tab 6, which he signed as well as Margaret MacIntyre and NatashaHatcher. The Tribunal finds from her testimony that she believed that letter to the Board of Directorswas damaging, disrespectful and untrue and the Complainant and the two others did not follow therespectful work environment document as they should have come to her first with respect to anycomplaints dealing with the bread program.371. The Tribunal finds the Complainant and Ms. MacIntyre testified they were concerned the breadprogram of selling rolls to the Superstore was in jeopardy due to inaction by the Executive Directormaking the interest known to the Superstore. The Tribunal finds from the evidence of theComplainant and Ms. MacIntyre that there was also some problem with a safety shield around thebakery equipment that Occupational Health and Safety wanted fixed, and thus there was a down timewith respect to the bakery equipment.372. The Tribunal finds the bread program had been a source of revenue for the Respondent in sellingsome baked goods to the public and to stores in the area. The Tribunal also finds from the evidenceof Andrea MacEachern that she had spoken to Diana Poirier who had been on maternity leave aboutthis letter prior to presenting it to the Board and the Tribunal finds neither Ms. MacEachern or Ms.Poirier indicated to the Complainant, Ms. MacIntyre or Ms. Hatcher that they were violating therespectful work environment document by going to the Board of Directors.373. The Tribunal heard the evidence of Ms. Poirier and Ms. MacEachern on that matter as well as fromthe Complainant and Margaret MacIntyre and finds Andrea MacEachern, who was filling in forDiana Poirier as acting Director, did not want to get involved, although she was sympathetic to thosestaff members.374. In any event, the Tribunal finds in examining the Respondent’s policy, Exhibit R-1, Tab 5, the threeemployees, including the Complainant, were reprimanded as a result of the letter being sent directlyto the Board of Directors and not to the Executive Director. The Tribunal finds this letter did notbreach the lines of communication. The Tribunal finds the respectful work environment documentencourages concerns or grievances to be brought to the immediate supervisor, which they did, namelyto Andrea MacEachern, who was the acting Director and who had sympathy for them, but did not

want to get involved due to her position, and accordingly, she forwarded it to the Board of Directors.375. The Tribunal finds the lines of communication policy further goes on to say, “if they are not satisfiedwith the response of their supervisor, they are encouraged to speak to their supervisor’s immediatesupervisor. If they are still not satisfied with the response, they are to bring the issue in writing tothe Chair of the Personnel Committee or the Board President”, Exhibit R-1, Tab 5.376. The Tribunal accepts the evidence of the Complainant which is supported by Andrea MacEachernthat they have followed the proper channels in going to their supervisor, who did not want to getinvolved and thus turned it over to the Board.377. The Tribunal finds it is unfortunate that there was a lack of communication between the ExecutiveDirector, Andrea MacEachern, and the employees who were long time staff members of theRespondent, and she could have indicated to them by going to the Board, they were violating theRespondent’s work environment policy. The Tribunal finds there was nothing said to them otherthan a letter from the Executive Director of March 7, 2008, approximately one week later,reprimanding each of them, including the Complainant.2011 NSLST 29 (CanLII)378. In any event, the Tribunal finds Tom Gunn testified this was not a reason for dismissing theComplainant, but the Tribunal finds the Respondent chose to argue it as part of backgroundinformation to reveal progressive discipline was administered to the Complainant.379. The Tribunal finds with respect to the Bowl-a-Thon and the Special Olympics incidents, that theBowl-a-Thon was always voluntary and was never a requirement nor was there a policy in place thatstaff members had to attend a Bowl-a-Thon. The Tribunal finds the Complainant worked Mondaysto Fridays and had the weekends off, and usually if there were events on weekends, the Societywould get volunteers from the community to assist with the adult clients.380. The Tribunal finds the Complainant assisted the clients many times by taking them bowling throughthe week or swimming and there was never any policy that he had to attend the Bowl-a-Thon and thatwas not effectively communicated to him.381. The Tribunal finds the testimony of the Complainant in this regard is corroborated by Kaye Isenorwho was the manager of the Respondent prior to Diana Poirier being employed in June 2007, andshe knew of no policy ever being in place that staff had to attend the Bowl-a-Thon.382. Further, the Tribunal finds from the testimony of Ms. MacEachern and Ms. Poirier, it was unclearif there was a policy, if it was even made known to the Complainant. The Tribunal finds there isnothing in Ms. MacEachern’s testimony and, in fact, she said she never disciplined the Complainantfor not attending the Bowl-a-Thon and it was also unclear this was a requirement from the Board ofDirectors.383. The Tribunal finds from the testimony of both Ms. Poirier and Ms. MacEachern that although theBowl-a-Thon was talked about in the lunch room between Margie MacIntyre and Natasha Hatcherin the presence of Ms. MacEachern on April 1, 2008, Ms. MacEachern said there was a comment bythe Complainant that he would not be attending and she later met with him upstairs in the kitchen andhe indicated there was nowhere that says he had to go to the Bowl-a-Thon, and she could do whatshe wanted. The Tribunal accepts the Complainant’s evidence and that of Ms. MacEachern that theComplainant was upset and he believed it was an order that he had to attend, yet he never had toattend in the past and there was no explanation given, and he thought such a discussion should havetaken place in private and not in an open area.

384. In any event, the Tribunal finds on the issue of the Bowl-a-Thon, there was no evidence it was apolicy of the Board of Directors and if it was, it was never effectively communicated to theComplainant, and also there was never a reprimand given to the Complainant by Ms. MacEachern,and the Tribunal accepts her testimony on that behalf, notwithstanding she wrote up a note datedApril 1, 2008, Exhibit R-1, Tab 8, with respect to that incident.385. Further, the Tribunal finds Ms. MacEachern also did not reprimand the Complainant with respect toan incident concerning CB, a client of the Respondent, who was sent home by the Complainant afterhe asked if he could send her home due to her having cold sores on her mouth. The Tribunal findsthe evidence is unclear with respect to what exactly took place, however, it appears CB did notappreciate the manner in which the Complainant had informed her and she complained. However,the Tribunal finds as this is hearsay and CB did not testify with respect to the incident and the factMs. MacEachern testified she did not reprimand the Complainant, this was not an incident on hisrecord.386. With respect to the Special Olympics issue, again the Tribunal finds it appears the Board of Directorsrequested staff to attend with the members of the Respondent in Antigonish for a one day sportingevent, and the Complainant’s evidence was that he was not going to attend and he made this knownto Ms. MacEachern and he was informed he would lose a day’s pay if he did not go and he wantedto have vacation time off to offset the lost pay, and that was refused.2011 NSLST 29 (CanLII)387. The Tribunal finds the Complainant was made aware of this event as it was planned for severalweeks, and it is not clear to the Tribunal if it was a direction of the Board that the staff had to attendto help and assist the members, not only with their clothing and hygiene, but also with their lunches.The Tribunal finds as a result of the Complainant not attending, he was given a reprimand, ExhibitR-1, Tab 10. This reprimand was dated June 2, 2008, signed by Andrea MacEachern, which wenton to say, “This is a second letter of reprimand that will be placed in your employee file. I need youto know that a third letter of reprimand can and may result in termination of your employment withthe ROC Society”.388. The Tribunal finds this was a change in practice from previous years as Ms. Isenor and theComplainant testified in the past this was voluntary for the staff employees to attend the SpecialOlympics and the Complainant testified he did not want to go due to health reasons as he cannottolerate a lot of sun and gets migraines as a result.389. The Tribunal heard from Ms. MacEachern who also was aware there was a longstanding practice ofthe staff members not having to attend the Special Olympics as basically the Respondent would getvolunteers from the community to assist, notwithstanding she believed it was a policy of the Boardfor the 2008 year.390. The Tribunal finds with respect to the issue of the Special Olympics, that notwithstanding theComplainant’s refusal to attend, it is not satisfied there was sufficient notification to the Complainantthat it was a Board policy and it was imperative that he attend. The Tribunal finds there was a lackof communication among the chain of command as Ms. MacEachern was filling in for the ExecutiveDirector who came into the employ of the Respondent around June 2007, but was off on maternityleave at this point in time and was just working part-time and calling in, but was mainly an absenteeExecutive Director. The Tribunal finds it was not clear there was effective communication to theComplainant or others that attending the Special Olympics in 2008 was mandatory as in previousyears, it was not mandatory.391. The Tribunal finds in any event, as indicated by both Ms. Poirier and Mr. Gunn, the reason forterminating the Complainant without notice or pay in lieu of notice on September 11, 2008, is asindicated in his termination letter, Exhibit R-1, Tab 19, as follows, “This dismissal is for cause. The

cause is your serious misconduct in the course of your employment. You have engaged in abusiveconduct with ROC Centre clients, including yelling and cursing at clients, ordering clients about withthreats, intimidating and teasing some clients to the point of harassment. Certain clients havereported that they are afraid of you. Your conduct is completely contrary to the ROC Centre’scommitment to treating those it serves with respect and dignity.”.392. The Tribunal finds the issues of the Bowl-a-Thon, Special Olympics or so-called bread incident, werenot the reasons for the termination of the Complainant.393. The Tribunal must now address the reasons for cause as outlined in the termination letter datedSeptember 11, 2008, signed by Diana Poirier, Executive Director.394. The allegations referred to in the statements of members, allegedly made by the Complainant, suchas “shut your fucking mouth”, “shut your fucking mouth before I punch you”, “sit your arse down”,“button your lip” and the alleged threats such as holding a ruler and threatening to hit a member witha 2 x 4 or ruler, shaking a yardstick and fist, all have to be addressed in the absence of hearing directtestimony from the makers of the statements.2011 NSLST 29 (CanLII)395. With respect to the assessment of credibility, the Tribunal accepts the authority as cited by thesolicitor for the Respondent in Farnya v. Chorny [1952], 2 D.L.R. 354 (B.C.C.A), where JusticeO’Halloran of the Court of Appeal, inter alia, stated:The test must reasonably subject his story to an examination of itsconsistency with the probabilities that surround the currently existingconditions. In short, the real test of the trust of the story of a witness insuch a case must be its harmony with the preponderance of the probabilitieswhich a practical and informed person would readily recognize asreasonable in that place and in those conditions. Only thus can a Courtsatisfactorily appraise the testimony of quick-minded, experienced andconfident witnesses, and of those shrewd persons adept in the half-lie andof long and successful experience in combining skillful exaggeration withpartial suppression of the truth. Again, a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For atrial Judge to say “I believe him because I judge him to be telling the truth,”is to come to a conclusion on consideration of only half the problem. Intruth it may easily be self-direction of a dangerous kind.396. The Tribunal has not had the opportunity to assess credibility of the members in answering thequestions of Ms. MacEachern with respect to the Complainant as they did not testify. The Tribunalis sensitive to the reasons put forward by the solicitor for the Respondent were due to their mentaland intellectual disabilities, however, to terminate the employment of a long term employee such asthe Complainant, with almost 15 years of employment, requires, as the Supreme Court of Canada inMcKinley v. BC Tel supra, stated at paragraph 53,53. Underlying the approach I propose is the principle of proportionality.An effective balance must be struck between the severity of an employee’smisconduct and the sanction imposed. The importance of this balance isbetter understood by considering the sense of identity and self-worthindividuals frequently derive from their employment, a concept that wasexplored in Reference Re Public Service Employee Relations Act, [1987] 1S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p. 368:Work is one of the most fundamental aspects in a person’s

life, providing the individual with a means of financialsupport and, as importantly, a contributory role in society.A person’s employment is an essential component of his orher sense of identity, self-worth and emotional well-being....54. Given this recognition of the integral nature of work to the lives andidentities of individuals in our society, care must be taken in fashioningrules and principles of law which would enable the employmentrelationship to be terminated without notice.397. The Tribunal agrees with the general premise of Noella Martin, on behalf of the Respondent, in thatthe investigation that took place by Andrea MacEachern does not have to be to the extent of a fullpolice investigation. However, the Tribunal is disturbed in this case that the investigation that wasdone lacked the very basics of fairness and minimal detail that would be expected in conducting aninvestigation as Ms. Poirier testified this was a mini investigation to flush out in more detail theexplanations given by CF as well as members that gave statements.2011 NSLST 29 (CanLII)398. The Tribunal finds from the testimony of Ms. MacEachern and Ms. Poirier, that CF, who filed theinitial complaint, liked to embellish. Further, the testimony was CF was aggressive, was a big manand he wanted to be liked and thus, perhaps part of the reason for his embellishment, andaccordingly, the Tribunal finds his complaint should have been scrutinized carefully with furtherinvestigation.399. The Tribunal also accepts the evidence of Diana Poirier and Ms. MacEachern in that they wereinexperienced in conducting such interviews and did not seek any assistance in doing so. TheTribunal further finds Ms. Poirier, Ms. MacEachern and Mr. Gunn all testified on behalf of theRespondent that they never witnessed nor received any complaints from staff or clients of theRespondent about the Complainant’s abuse, either verbal or physical, towards clients of theRespondent for approximately 15 years of service that he rendered to the Respondent.400. The Tribunal accepts the evidence of Ms. MacEachern and Ms. Poirier in that the woodworkingdepartment was in the basement of the Centre and the bakery, kitchen area and staff rooms wereupstairs and there was a steady flow of clients and staff up and down. The evidence was that nobody,including Kaye Isenor who testified on behalf of the Complainant, as well as Ms. MacIntyre, heardof any complaints being lodged against the Complainant as a result of any alleged abuse or physicalthreats or activity toward staff or clients of the Respondent for all those years they worked for theRespondent.401. The Tribunal finds the Complainant got along well with staff, including Ms. Poirier, notwithstandinghe had some disagreement with respect to her wanting to fix his vacation schedule when he had thesame schedule every year and the issue over not attending the Bowl-a-Thon, Special Olympics andthe bread letter. The Tribunal finds from his testimony, he believed Ms. Poirier was honest and doingthe best in her job that she could for the Respondent as well as Ms. MacEachern.402. The Tribunal finds the Complainant holds no animosity towards either Ms. Poirier or Ms.MacEachern and testified he could work effectively with them if he was reinstated. The Tribunalfinds this is consistent with his testimony, when he said that he is friends with and talks to themembers of the Respondent who had made the statements and since his termination, many haveencouraged him, including CF, who has apologized to him.403. The Tribunal from hearing the testimony of Ms. MacEachern finds she believed the statements weretrue, however, the Tribunal must look at the lack of completeness and the potential for misleadingthe challenged adults by the way the questions were worded and what was said to them prior to them

answering the questions.404. The Tribunal finds Ms. MacEachern testified prior to getting the statements from each of themembers, she told them CF had laid a complaint against the Complainant and thus the danger ofpotential tainting of their answers. The Tribunal finds the statements used to support the cause fortermination are referred to in Exhibit R-1, Tab 12, pages 1 to 14. The Tribunal, again not having theopportunity to hear cross-examination of the authors of the statements, in dealing with the issues ofcredibility, must look, in part, at the questions that were asked and the answers. The Tribunal findsthe answers were not clarified by Ms. MacEachern and finds from the members and CF’s responsesto questions asked by Ms. MacEachern, on the balance of probabilities, there is no act of abuse,whether verbal or physical, by the Complainant, for the reasons to follow.405. The Tribunal refers to certain examples as follows, to support its findings on lack of abuse by theComplainant:1. The Tribunal finds CH was a cousin of the Complainant and they liked to shadowbox in the mornings when CH came to the workshop. CH answered in Exhibit R-1,Tab 12, page 2, to the question have you ever been intimidated by Allison (shakingfists, waving ruler, yelling)? His answer was sometimes he shakes his fist at you.Again, the reference to shaking a fist at you, is unclear as to whether he wasreferring to himself or to all members, and they more than likely put up their fistswhen they were shadow boxing. The Tribunal finds the shaking of the fists was alsocorroborated by CG, CD, CF in their statements, Exhibit R-1, Tab 12, pages 4, 6 and8, respectively.2011 NSLST 29 (CanLII)The Tribunal on the balance of probabilities finds the shaking of the fist was in jestbetween the Complainant and CH. Ms. MacEachern’s testimony was that she did notask for any clarification nor did she go back to reinterview them.2. The Tribunal finds it is unclear as to what the members were saying and for exampleCE was asked, has Allison ever taken you or someone else by the arm or collarleading them somewhere? His answer was ‘yes, CD, a while ago’, and there was noindication if he was answering the collar or the arm or in what terms or situation didthat occur.3. The Tribunal finds the same question was asked of CH, CC, CD and CG and Ms.MacEachern did not illicit any clarification and when she was questioned on that,her testimony was that she did not think to get clarification and she never went backto the members again for more information. Ms. MacEachern admitted she does notknow in many cases as to whether the members were referring to the arm or collaror under what circumstances it took place or when as there were no dates obtainedfrom the members.4. The Tribunal finds the statement of CC, who is also a Board member, according toMs. MacEachern was that he had the highest intellect of the members and from hisstatements, he basically saw no problems or issues of abuse or threats by theComplainant.5. The Tribunal finds from the testimony, on the issue of credibility, CF embellishedthings and had violent tendencies and a lot of that was due to him wanting to beliked. He did not previously raise any of these issues and he had been a memberof the Centre from 2002 to July 2008. The testimony of the Complainant and fromthe Respondent’s witnesses was that CF had gotten in trouble for ripping the gas line

from the Centre and he never came back to the Centre after that and was notdisciplined for that action by the Respondent. The Tribunal finds these violenttendencies and embellishment behaviour puts doubt on CF’s credibility.6. The Tribunal accepts the evidence of the Complainant that after CF’s complaint, heapologized to him, and finds his recent actions brings lack of credibility to hisstatements.7. The Tribunal finds many of the members statements that were admitted in evidenceand referred to in Exhibit R-1, Tab 12, according to the testimony of Ms.MacEachern and of the Complainant, that most of the members could not read orwrite as is evidenced by CD and CG who printed their name. In any event, as Ms.MacEachern testified, they all have severe intellectual disabilities which poses afurther question of what they understood when the questions were asked of them,as none of them testified at this hearing.The testimony of Ms. MacEachern was that she thought she tried to explainthreatening and cursing, but she could not elaborate on what definition she gave tothem, if any.2011 NSLST 29 (CanLII)8. In looking at the six statements, the Tribunal finds at least three of the statements,namely from CC, CG and CE, for the reasons stated, do not support the conclusionsdrawn by the Respondent as they differ and that was conceded on cross-examinationby Ms. MacEachern when she initially testified she believed all the statements wereconsistent, and she believed they were truthful, and that is why she believed therewas abuse by the Complainant. However, on cross-examination, she conceded whenpointed out the inconsistencies in the statements, that they were not all consistent onmaterial facts and she conceded she did not seek further clarification or go back toreinterview the members.9. The Tribunal finds in looking at the statements of CF as summarized from the notesof Ms. Poirier and Ms. MacEachern, who met with him on July 8, 2008, there wasan incident where CF alleged the Complainant grabbed his arm on the way upstairsand he kept pushing him and telling him to come on. Yet, none of the clientsstatements corroborate that particular event and it was not elaborated on in theirstatements, especially where the Complainant totally denied the allegation.10. The Tribunal finds that CF is a very big man who was volatile, and is much largerthan the Complainant, and was not someone you could push upstairs. The Tribunalfinds the Complainant had a good relationship with CF and CF later apologized tohim.11. The Tribunal finds with respect to the statement that the Complainant grabbed thearm of CD at the SAERC pool, there was no elaboration on how or in what form thattook place, whether it was just a touching, or what the Complainant testified in thatCD was very upset and he put his hand on his back to steady him as he was goingup the stairs and he was able to calm him down and walk him back to the Centre.The Tribunal finds the Complainant would just look the clients in the eyes as partof his training and that would calm them down, which is supported by Ms.MacIntyre who testified she recalled the Complainant returning from swimmingwith CD and he appeared to be calm. The Tribunal finds there is a lack of evidenceto suggest any abuse by the Complainant against CD at the SAERC pool.

12. The Tribunal finds the incident where the Complainant put CD over his shoulder tocarry him upstairs to Ms. Isenor’s office, happened many years prior to Ms. Poirierbeing employed and it was under Ms. Isenor’s tenure. The Tribunal finds thisincident arose out of CD hitting the Complainant twice in the back while he wasoperating a saw and he wanted to bring him up to Ms. Isenor to be spoken to, whichis supported by Ms. Isenor’s evidence, that she recalls dealing with the matterwithout a reprimand and she did not recall seeing the Complainant carrying CD overhis shoulder.13. The Tribunal finds from the statements of CE, CC and CG, they all indicated theywere not intimidated or threatened by the Complainant and only CG said theComplainant cursed, but there was no clarification other than the reference to ‘sityour arse down’. The Tribunal finds it is hard to stretch that particular language tobeing abusive in nature and the Complainant did not disagree that he might haveused that language, but it was not on an ongoing basis, but he denies cursing orusing the ‘f’ word to the members.2011 NSLST 29 (CanLII)14. The Tribunal finds with regard to CH’s statement, the Complainant was quick withhim when he asked ‘what if I cut CI with a knife’. The Tribunal finds it would notbe unreasonable for the Complainant to be somewhat quick with him, if he wassuggesting he was going to cut someone with a knife. The Tribunal finds there wasnothing in the statement to show anything abusive by the Complainant.15. The Tribunal accepts the testimony of the Complainant, which is uncontradicted byany direct testimony, in that he did not use profanity and this is supported by thetestimony of Ms. Isenor, Ms. MacIntyre, Ms. Poirier and Ms. MacEachern and theynever heard him using profanity to any client or staff for approximately 15 years thathe worked at the Centre or even used the ‘f’ word, and thus, there was no reason forthe staff to use progressive discipline towards him. The Tribunal finds due to thesize of the Respondent being very small, if that language was being used by theComplainant, it would have been heard by either staff or members of the Centre.406. The Tribunal finds further on the issue of credibility none of the statements referred to in Exhibit R-1,Tab 12, were given to the Complainant prior to his termination. At the meeting at the offices of theRespondent’s lawyer on August 22, 2008, the Complainant testified he asked to see the statementsand the solicitor for the Respondent informed him that he was asking the questions and not theComplainant. In any event, the Complainant never did see the statements or could ask questions.The Tribunal finds that is troublesome, and was a denial of fairness and natural justice in order tofully answer the allegations against him. Notwithstanding the Complainant did not show up for ameeting on July 10, 2008, the statements could have been sent out to him for his reply and he shouldhave been given the opportunity to ask questions.407. The Tribunal further finds it is unclear as to what happened on July 9, 2008, as to whetherinformation was actually received by the Complainant to attend the meeting on July 10, 2008 at 8:30in the morning at the Centre or if the RCMP had attended at his home to question him on abuseallegations and he called his lawyer who told him not to attend the meeting without having a lawyerpresent and getting legal advice.408. In any event, the Tribunal finds the Complainant did not show up at the meeting and as a result ofthat, he was given a letter by the Executive Director, Diana Poirier, Exhibit R-1, Tab 14, dated July10, 2008, and that letter indicated he was suspended with pay pending an internal investigation. TheTribunal finds the only other meeting that was held was on August 22, 2008; however, he was nevergiven the statements of CF or of the members.

409. The Tribunal finds this is a serious flaw in the investigation in that the accused should be able to haveall the information against him to address in order to give a full defence to the remarks that weremade. In that regard, the Tribunal finds the investigation was seriously flawed.410. The Tribunal finds from the evidence of Ms. Poirier, Ms. MacEachern and Mr. Gunn, that at themeeting of August 22, 2008 with the Respondent’s solicitor, a decision was made by the Board ofDirectors to terminate the Complainant, yet Mr. Gunn could not recall what information was suppliedto them. Further, from the testimony of Mr. Gunn, he indicated the Complainant was just not gettingit and the Tribunal finds he was suggesting the Complainant was not fitting in with the new programdirection focusing more on the training as opposed to making a product for sale. The Tribunal findsthere were no minutes of the Board meeting that were produced to deal with what evidence wasbefore the Board to determine termination. The Tribunal finds it appears from the evidence of Mr.Gunn that CC was present at the Board meeting, but he was not asked any questions about hisanswers to the questions asked by Ms. MacEachern, and especially his statements where he foundno evidence of abuse or threats by the Complainant towards any members of the Respondent. TheTribunal finds there was a lack of proper investigation and discussion by the Board, and opportunityfor the Complainant to provide a full answer and defence with respect to the allegations of abuseagainst him, especially being a long term employee.2011 NSLST 29 (CanLII)411. The Tribunal finds notwithstanding the Complainant testifying the clients of the Respondent do notlie, he did qualify that by saying, provided they are explained and informed of what it is they aretrying to answer as they all have severe psychological disabilities and it is often difficult for them tounderstand and to give reasonable responses.412. The Tribunal also in assessing credibility finds in looking at the prior history of the workingrelationship of the Complainant, he received two performance reviews by the previous manager,Kaye Isenor, both which showed he had a very good working relationship with clients and had theirinterest in mind and was a valued employee, Exhibit Book C-1, Tab 28, pages 42 to 43, being theevaluation of November 21, 2005 and Exhibit Book C-1, Tab 28, pages 44 to 45, being the evaluationof May 29, 2007. Further the Tribunal finds there was no evidence from Ms. Poirier or Ms.MacEachern to contradict these statements and in fact, the Tribunal finds through their testimony,up to the July 2008 allegation by CF, there was nothing in particular that stood out to show theComplainant was not a valuable employee and did not consider the interests of his clients and did nothave a good working relationship with them.413. The Tribunal finds this is also supported, not only by the appraisal reviews, but also AndreaMacEachern who in 2007 sent a Christmas card to the Complainant which indicated in part that hehad good qualities to offer to the Centre and Ms. Poirier, Exhibit C-4, sent a Christmas card whichstated, “Your dedication to the Society and its members is easy to see. Thank you for all that youdo”.414. The Tribunal in assessing the hearsay statements and hearing the testimony of the Complainant andMs. Isenor as well as hearing from Ms. MacEachern, Ms. Poirier and Mr. Gunn, finds on the balanceof probabilities on the issue of credibility in using the language from Farnya v. Chorny supra, findsthere has been no harmony with respect to the consistency in the statements of the members and thestatements of the members, including CF, upon which the Respondent used to summarily terminatethe Complainant, is lacking in substance and procedural fairness.415. As indicated, the Tribunal finds up to July 10, 2008, when the Complainant received the suspensionletter for not showing up at the meeting of July 10, 2008, there was no substance to any improprietyof abuse, whether verbal or physical, towards members of the Respondent or staff by theComplainant for approximately 15 years of employment, and in fact, the evidence is to the contrary

in that he did a good job and was well liked by the members of the Respondent and he did a lot withthem and they enjoyed his work.416. The Tribunal finds for the reasons stated, on the balance of probabilities, that the investigation wascursory at best, considering the exemplary record of employment of the Complainant, and finds morecare should have been taken in evaluating the questions asked to determine the times andcircumstances surrounding the allegations. Further, the Tribunal finds copies of the statementsshould have been sent to the Complainant for comment, to give him an opportunity to answer andprovide a defence.417. The Tribunal is troubled that even at the meeting with Counsel for the Respondent, the Complainantwas still not shown the statements or permitted to ask questions. The Tribunal also finds it was notcredible for the Respondent, when dealing with mentally and physically challenged adults who haveimpaired intellectual and physical capabilities, especially where the main complainant, CF wasknown to embellish as he wanted to be liked and the other members had various impairments suchas hard of hearing and severe mental disabilities, to accept their statements on face value, withoutfurther questioning, investigation, and clarification and especially where Ms. MacEachern admittedshe did not ask them for clarification on their answers, when she admitted she did not know in whatcontext their responses were meant, and not giving the statements to the Complainant for a response.2011 NSLST 29 (CanLII)418. The Tribunal accepts the fact for whatever reason the Complainant did not attend the meeting of July10, 2008, however, it is not clear this was totally the fault of the Complainant not showing up withoutan excuse as he indicated the RCMP had contacted him about abuse allegations and his lawyer toldhim to not attend the meeting without legal representation. The Tribunal finds it is reprehensible thatthe Respondent did not send the Complainant the statements for rebuttal prior to termination.419. The Tribunal for the reasons stated, on the balance of probabilities, and from the authorities citedfinds the Respondent did not have just cause to dismiss the Complainant without notice or pay in lieuof notice, and accordingly has breached Section 71(1) of the Labour Standards Code, supra.420. The Tribunal in having found the Respondent has breached Section 71(1) of the Labour StandardsCode and as the Complainant was an employee of more than ten years, approximately 15 years ofcontinued service, has to determine if reinstatement is an appropriate remedy.421. Pursuant to Section 26(2)(c) of the Labour Standards Code supra, the Tribunal may order thecontravening party to reinstate the employee. The Tribunal in Morine v. L. & J. Parker EquipmentIncorporated (L.S.T. No. 1727, December 2001), at paragraph 28, commented as follows on theremedy of reinstatement:The remedy of reinstatement is a permissive power. In other words, theTribunal is not required to automatically use its jurisdiction when Section71 is violated. Indeed, the Tribunal must look to the facts of the case athand and determine if reinstatement is appropriate on a case by case basis.422. The Tribunal finds from Mr. Gunn’s testimony, who was Chairman of the Board of the Respondent,that it would be very difficult for the Board to accept reinstatement due to the allegations of abuseand the harm that it could bring to the reputation of the Respondent. The Tribunal finds DianaPoirier testified she would be professional if the Order was for reinstatement. The Tribunal finds theComplainant’s testimony, notwithstanding the initial difficulties and lack of communication betweenhimself and the Executive Director, was he could work with her and that since she had only beenemployed for a short period of time prior to his dismissal, as she was on maternity leave, they did nothave time to get to know each other well, and he believes he could work well with her and takedirection from the Board and work effectively as a team member. The Tribunal finds the

Complainant enjoyed his work and was always a very faithful employee who had great concernsabout the clients of the Respondent and, in fact, many of the clients and former clients are friends ofhis and he sees them often and wished him well with respect to this hearing. The Tribunal finds theComplainant knows his work well, has taken many training courses and is willing to go on anycourse to help him improve at the Centre.423. The Tribunal is satisfied from hearing the testimony of the parties that there has not been such adeterioration of personal relationship between the Complainant and management and staff of theRespondent or the disappearance of trust, nor is there any attitude on behalf of the Complainant toreveal reinstatement would bring no improvement.424. The Tribunal refers to Van’t Hof v. South Shore District Health Authority (L.S.T. No. 1795, March2004), at paragraph 108, where it indicated factors in determining whether an order for reinstatementwould be appropriate, namely:1. The deterioration of personal relations between the complainant and management orother employees;2. The disappearance of the relationship of trust which must exist in particular when thecomplainant is high up in the company hierarchy;. . .4. An attitude on the part of the complainant leading to the belief that reinstatement wouldbring no improvement;2011 NSLST 29 (CanLII)425. The Tribunal finds the Complainant lived in a small community, had limited education, and had aprevious unblemished work history for approximately 15 years as a vocational trainer and a goodrelationship with the other employees and members of the Respondent. The Tribunal finds theallegations of abuse have not been proved for the reasons stated, on the balance of probabilities, andfinds this is an appropriate case for reinstatement of the Complainant to his position of vocationaltrainer in the woodworking department of the Respondent.426. The Tribunal accordingly finds from review of the authorities cited and on the balance ofprobabilities that this is an appropriate case for reinstatement of the Complainant to his position asvocational trainer for the Respondent.427. The Tribunal finds the Respondent employer has not shown on the balance of probabilities whyreinstatement would not be an appropriate remedy. The Tribunal finds to the contrary, the evidenceon the balance of probabilities supports the ability of the Complainant to perform his work asvocational trainer in the woodworking department of the Respondent, and finds he has the ability tocarry out those duties with his experience and training.428. The Tribunal finds in coming to this decision that Ms. Poirier, the Executive Director, indicated ifreinstatement was ordered, she would be able to work with the Complainant as she is a professionaland there was no evidence led that any of the staff or members of the Respondent would be adverselyaffected, and Tom Gunn, President of the Board, indicated he surmised there may be problems withthe Board accepting reinstatement; however, the Tribunal finds from the evidence of the Complainantthat he would be able to put aside any differences and he believes he could work well with theExecutive Director and the Board. Further, the Tribunal finds there was no evidence led to indicatethe Complainant’s job was eliminated.429. The Tribunal finds from examining the Complainant’s work history, there has been no substantiveproblems with respect to his work, as shown in his performance reviews conducted, and accordingly,finds for the reasons stated, reinstatement would be appropriate.

430. The Tribunal finds further, there were communication difficulties between management and staff inclarifying policy issues and the role of staff, so they could better understand their duties andresponsibilities. The Tribunal finds it is unfortunate in this case the Executive Director, Diana Poirierwas off on maternity leave during most of the time that she worked for the Respondent before theComplainant was terminated, accordingly, the Tribunal agrees with the Complainant that they didnot have a lot of opportunity to get to know each other in the work environment.431. The Tribunal, however, in ordering reinstatement has to deal with the issue of mitigation and theTribunal finds from the admission of the Complainant that he did not mitigate and, in fact, chose notto mitigate as his testimony was that other than working for a short time as a dog catcher for theTown of Port Hawkesbury, he did not choose to find work outside Cape Breton as he did not like togo across the causeway and his family were in Cape Breton and he had health problems and heneeded to have an employer who provided health benefits as the Respondent did, and he just wantedhis job back.432. The Tribunal heard argument from the Respondent that this was somewhat preposterous on behalfof the Complainant in not even attempting to find employment to mitigate his loss in the hope thathe was rolling the dice in getting his job back. The Respondent argued damages should be reducedat least 50 percent for failure to mitigate.2011 NSLST 29 (CanLII)433. The Tribunal is somewhat troubled with respect to the total lack of mitigation by the Complainant.The Tribunal finds with regard to mitigation, the onus is on the Respondent employer to show failureto mitigate, and not only to show the Complainant has failed to take reasonable steps to mitigate, butalso could likely have found alternate employment. However, the standard is not perfection.434. The Tribunal was referred to Christianson supra, where a decision of the Alberta Court of Appeal,correctly states the position that all a claimant needs to do is to make an objectively, reasonabledecision. In summary, the court stated that all a claimant need do is make what at the time is anobjectively reasonable decision. He or she need not make the best possible decision. In particular,the courts will not usually expect one faced with a breach of contract to take steps which are riskyor unsavory. The onus of proof is on the defendant, so any gap in the evidence accrues to theclaimant’s benefit. The defendant must show that the claimant’s actions were unreasonable, not inone respect, but in all respects.435. The Tribunal finds in this case it is clear the Complainant did not seek alternate employment, otherthan a short stint as a dog catcher, and the reason given was he wanted his job back. The argumentof the Respondent is that the Complainant admits not even attempting to mitigate and thus there isno onus on the Respondent employer to show there were jobs available in the community.436. The Tribunal finds the Complainant argued his work was specialized, working with mentallychallenged adults in woodworking and lawn maintenance. The Tribunal finds the Complainant alsoargued there was a complaint of abuse made by the Respondent to the RCMP which ended up beingunfounded, but in a small community, it would be difficult for the Complainant to get a job with thatcloud over his head, and which he argued would prejudice his efforts to mitigate.437. Further, the Tribunal heard argument from the Respondent that it took seven or eight months for theOrder of the Director of Labour Standards when the Complainant could have invoked an applicationdirectly to the Tribunal after one month following filing the complaint if no decision of the Directoris made, and thus mitigate some of his loss, but he chose not to do so.438. The Tribunal finds that the delay by the Director of Labour Standards in issuing the Order should notprejudice the Complainant in mitigation as he was following a statutory process, notwithstanding hecould have appealed directly to the Tribunal once the Director had not made a decision within one

month of filing the complaint. Accordingly, the Tribunal does not find the Complainant failed toproperly mitigate his loss in that regard.439. The Tribunal finds with respect to the issue of mitigation, the Complainant did not properly mitigate,for the reasons stated, and in his own words, he admitted he just wanted his job back. The Tribunalfinds the Complainant’s work was not so specialized that his skills in woodworking and lawnmaintenance could not be used in the community. The Tribunal finds there was no credible evidenceto show how or if it affected his attempting to find a job, as by his own admission, he only soughtemployment for a short stint as a dog catcher.440. Further, the Tribunal finds similarly the reporting to the police of abuse allegations and theComplainant speaking to a reporter with the local paper, what effect, if any, that would have on theComplainant finding a job as he did not seek employment, and by speaking to a reporter, he broughtattention to himself.441. The Tribunal finds the Complainant did not make any reasonable efforts to mitigate his loss for thereasons stated.2011 NSLST 29 (CanLII)442. The Tribunal from review of the authorities cited and on the balance of probabilities finds thereshould be a reduction in salary and benefits to the Complainant for his failure to mitigate his loss aswell as progressive discipline that should have been issued with respect to his challenging of hissuperiors with respect to the Special Olympics and his general demeanor towards Ms. Poirier and Ms.MacEachern, for the reasons stated. The Tribunal finds this was inappropriate especially where theComplainant confronted Ms. MacEachern with respect to both having to attend the Special Olympicsand the Bowl-a-Thon, notwithstanding the Tribunal finds if there was a policy in place, it was notclear, but the attitude of the Complainant was not appropriate in the way he spoke to Ms.MacEachern about his refusal to attend.443. Further, the Tribunal finds it was not appropriate for the Complainant to get into a confrontation withthe Executive Director, Diana Poirier, soon after she became employed with the Respondentregarding when he wanted to take his vacation, and the Tribunal finds it appears he did not want toaccept her recommendation. Accordingly, the Tribunal finds there should be some reduction ofreinstatement with pay and benefits to take into account this attitude of the Complainant towards hissuperiors. The Tribunal finds these are all incidents that should have been dealt with by progressivediscipline with training and assistance in assisting the Complainant in taking direction and acceptingauthority.444. The Tribunal, accordingly, on the balance of probabilities for the reasons stated, and from theevidence presented, finds there should be some form of reduction for failure to mitigate and findssome form of progressive discipline would have been appropriate and by awarding reinstatement, itshould not be without some form of reduction for failure to mitigate and progressive discipline.445. Accordingly, pursuant to Section 26 of the Labour Standards Code, the Tribunal has authority to dothe following:26(2) Notwithstanding Section 72, where the Tribunal decides that a partyhas contravened a provision of this Act the Tribunal may order thecontravening party toa) do any act or thing that, in the opinion of the Tribunal,constitutes full compliance with the provision;b) rectify an injury caused to the person injured or to makecompensation therefor; and

c) for greater certainty and without limiting the generalityof clauses (a) and (b), reinstate the employee,446. The Tribunal finds it has authority under Section 26(2) supra, of the Labour Standards Code inordering reinstatement with a reduction for failure to mitigate and for some form of progressivediscipline, it must take into account the Complainant’s defiant attitude towards his superiors withregard to the matters referred to in this decision, for the reasons stated, and to do otherwise, would,in fact, condone such acts, even though they do not justify discharge.ORDER447. Therefore, the Labour Standards Tribunal (Nova Scotia) for the reasons stated, on the balance ofprobabilities, and on review of the evidence, allows the Complainant’s appeal and dismisses theRespondent’s appeal.448. The Tribunal Orders reinstatement of the Complainant to his previous position as vocational trainerwith the Respondent, retroactive to the date of termination of September 11, 2008, less 12 monthssalary and benefits for failure to mitigate and progressive discipline.2011 NSLST 29 (CanLII)449. The Tribunal, in coming to this decision, agrees with the decision in Nichol v. Royal CanadianLegion, Branch 138, Ashby (L.S.T. No. 1875, February 2006) and Scott v. National Sea Products(L.S.T. No. 336, July 1983), where the Tribunal in its decision took into account some form ofprogressive discipline.450. The Tribunal further Orders there will be no interest on the monies awarded as there were numerousdelays with respect to scheduling issues due to no particular fault of either party. Accordingly, theTribunal will exercise its discretion not to award interest.451. The Tribunal Orders the Respondent to pay to the Labour Standards Tribunal, in trust for theComplainant, the retroactive back pay and benefits so Ordered (subject to applicable statutorydeductions).452. The Tribunal Orders the Respondent to immediately reinstate the Complainant with retroactive payand benefits as stated in this Order (subject to applicable statutory deductions).453. The Tribunal will maintain jurisdiction in the event the Complainant and Respondent cannot agreeon the quantum amount as Ordered in this decision.This order is issued in accordance with Section 26 of the Labour Standards Code and Regulations.MADE BY THE LABOUR STANDARDS TRIBUNAL (NOVA SCOTIA) AT HALIFAX ON THISTWENTY-EIGHTH (28TH) DAY OF JUNE, 2011 AND SIGNED ON ITS BEHALF BY THE CHAIR.E.A. NELSON BLACKBURN, Q.C.CHAIRLABOUR STANDARDS TRIBUNAL

SUPERIOR COURT OF JUSTICE - ONTARIOCITATION: Morris v. Johnson, 2011 ONSC 3996COURT FILE NO.: CV-10-412021DATE: 20110720RE:Phyllis Morris (Plaintiff) AND Richard Johnson et al (Defendants)BEFORE: Carole J. Brown J.COUNSEL: K. Clark, for the Plaintiff/Moving party, Phyllis MorrisC. Sinclair and J. Goldblatt for the Defendants/Responding party, RichardJohnson, William “Bill” Hogg and Elizabeth BishendenA. Smith for the Intervener, The Canadian Civil Liberties Association2011 ONSC 3996 (CanLII)HEARD: March 15, 2011ENDORSEMENT[1] This case involves anonymous postings on a web-blog used for political comment.Phyllis Morris, the former mayor of Aurora, claims that, in the last mayoral race in 2010, shewas defamed by the Defendants, including the anonymous Defendants. She seeks the identitiesof these anonymous Defendants in order to sue them for defamation. Phyllis Morris (“Morris”)brings this motion for an order requiring Richard Johnson, William Hogg, Elizabeth Bishenden(together “the individual Defendants”), their lawyer, Jordan Goldblatt (“Goldblatt”) andAutomattic Inc., host of the website, auroracitizen.ca, to provide the Plaintiff with all identityinformation in their possession sufficient to identify the anonymous Defendants, “John Doe”,“James Doe” and “Jane Doe”, in order to proceed with this action against them.[2] The issue before me is whether the production of identity information of the anonymousDefendants can be compelled in order to permit Ms. Morris to proceed with her defamationclaim, taking into account also the issues of the privacy rights of the parties and freedom ofexpression and political speech.[3] The Canadian Civil Liberties Association (“CCLA”) was granted leave to intervene as afriend of the Court, given the important civil liberties and Charter issues engaged by this motion.The Background Facts[4] Phyllis Morris was involved in a political campaign for re-election as Mayor of the Townof Aurora at the time of the postings of the alleged defamatory remarks on the website,auroracitizen.ca, which occurred between August 20 and October 2, 2010. She was defeated in ageneral election on October 25, 2010, and her term ended December 1, 2010.

- Page 2 -[5] The website, auroracitizen.ca is used as a forum for political speech by way of webpostings. Those who post on auroracitizen.ca are free to determine their level of privacy. Theycan chose to identify themselves as author of their blog posting, sign under a pseudonym orremain anonymous.[6] Morris, “in her capacity as Mayor of the Corporation of the Town of Aurora” issued aNotice of Action against the named and anonymous Defendants on October 8, 2010. The title ofproceeding was subsequently amended to remove Morris’s title as Mayor.[7] The named Defendant, William Hogg, is alleged to have been moderator of theauroracitizen.ca blog with “power to publish, republish, encourage or delete the postings”. Ms.Bishenden is alleged to have been a former moderator and Richard Johnson, a frequent writer onthe Website, and a moderator or a person who authorized, participated in or encouraged thepublication and republication of the defamatory postings. None of the individual namedDefendants is alleged to be the author of any defamatory postings. The three anonymousDefendants, John Doe, James Doe and Jane Doe, wrote allegedly defamatory comments underpseudonyms. The non-party, Goldblatt, is the lawyer of the named individual Defendants. Hedoes not represent the three anonymous Defendants.2011 ONSC 3996 (CanLII)[8] The allegations of defamatory statements in the Statement of Claim, which related toMorris “in the way of her office, profession, trade and/or calling as Mayor of the Town ofAurora”, were referenced as six separate articles or postings. The specific alleged defamatorywords, phrases and/or sentences were not pleaded in the Statement of Claim. Instead, thePlaintiff made reference to the entire posting or article in the Claim and interpreted what thedefamatory postings, as a whole, “in their natural meaning, and by innuendo meant or wereunderstood to mean”.[9] Following commencement of the action by Notice of Action, no further postingsregarding Morris have occurred.The Issues[10] The issue to be decided is whether the production of identity information of anonymousDefendants can be compelled in order to permit the Plaintiff to proceed with her defamationaction. In the circumstances of this case, the Court must balance the competing interests ofprivacy, the public interest in promoting the administration of justice by providing the Plaintiffwith the information sought to pursue her claim and the underlying values of freedom ofexpression and political speech.The Law[11] In balancing the respective interests of privacy and the promotion of the administration ofjustice by compelling the information sought, I must consider the underlying value of freedom ofexpression in the context of political speech. It is there that I begin.

- Page 3 -[12] While the Charter does not apply to strictly private litigation between litigants who havenot invoked state action, the jurisprudence is clear that because the Rules of Civil Procedure,R.R.O. 1990, Reg. 194 have the force of a statute, they must be interpreted in a mannerconsistent with Charter rights and values: D.P. v. Wag [2002] O.J. No. 3808 (Div. Ct.)., (2004),modified by [2004] O.J. No. 2053 (C.A.), modified by [2004] O.J. No. 2053 (C.A.).[13] Freedom of expression has long been recognized in our jurisprudence as among the mostfundamental of rights possessed by Canadians, with three core purposes, or rationales, includingdemocratic discourse, truth finding and self fulfillment.[14] As Chief Justice McLachlin stated in Grant et al. v. Torstar et al., [2009] 3 S.C.R. 640:“…[F]ree expression is essential to the proper functioning of democraticgovernance. As Rand J. put it, “government by the free public opinion of an opensociety…demands the condition of a virtually unobstructed access to anddiffusion of ideas”…2011 ONSC 3996 (CanLII)…“As held in WIC Radio, freewheeling debate on matters of public interest is tobe encouraged, and must not be thwarted by “overly solicitous regard for personalreputation”. Productive debate is dependent on the free flow of information…”[15] Canadian law recognizes that the right to free expression does not confer a licence to ruinreputations, both with respect to private citizens and people in public office. Those who enterpublic life cannot reasonably expect to be immune from criticism, some of it harsh andundeserved. Nor does participation in public life amount to open season on reputation.[16] The Courts have recognized the relationship between the protection of reputation and theconcern for personal privacy.[17] The parties have cited several cases which they rely on as being of guidance in thepresent case, including Norwich Pharmacal Co. v. Customs and Excise Commissioners (1973),[1974] A.C. 133, [1973] 2 All E.R. 943 (“Norwich Pharmacal”), Irwin Toy Ltd. v. Doe, [2000]O.J. No. 3318 (Sup. Ct. J.) (“Irwin Toy”) BMG Canada Inc. v. John Doe, 2005 F.C.A. 193,[2005] F.C.J. No. 858 (“BMG”) and Warman v. Fournier, 2010 ONSC 2126, [2010] O.J. No.1846 (Div. Ct.) ("Warman").[18] The case of Warman involved similar issues and pertained to alleged defamation of apolitical nature on the internet and a request to compel the identity of anonymous internet users.In that case, Justice Wilton-Siegel carefully reviewed the competing interests of freedom ofexpression, and of privacy and reputation, in the context of political speech and the publicinterest in promoting the administration of justice by compelling the information sought in orderto permit the Plaintiff to pursue a defamation action against anonymous parties. I find hisanalysis of the competing interests to be of particular guidance to me in this case.[19] As Wilton-Siegel J. recognized at paragraph 32,

- Page 4 -[T]he fact that the motion engages the important Charter value offreedom of expression, as well as the right to privacy, heightensthe need to have regard to considerations beyond the traditionalconcerns of relevance and privilege.He further stated, at paragraph 42, that:…[B]ecause this proceeding engages a freedom of expressioninterest, as well as a privacy interest, a more robust standard isrequired to address the chilling effect on freedom of expressionthat will result from disclosure. It is also consistent with the recentpronouncements of the Supreme Court that establish the relativeweight that must be accorded the interest in freedom of expression.In the circumstances of a website promoting political discussion,the possibility of a defence of fair comment reinforces the need toestablish the elements of defamation on a prima facie basis inorder to have due consideration to the interest in freedom ofexpression. On the other hand, there is no compelling publicinterest in allowing someone to libel and destroy the reputation ofanother, while hiding behind a cloak of anonymity. Therequirement to demonstrate a prima facie case of defamationfurthers the objective of establishing an appropriate balancebetween the public interest in favour of disclosure and thelegitimate interests of privacy and freedom of expression.2011 ONSC 3996 (CanLII)[20] In Warman, the factors to be considered were set forth as follows: (i) whether theunknown alleged wrongdoer could have a reasonable expectation of anonymity in the particularcircumstances; (ii) whether the Respondent has established a prima facie case against theunknown alleged wrongdoer and is acting in good faith; (iii) whether the Respondent has takenreasonable steps to identify the anonymous party and has been unable to do so; and (iv) whetherthe public interests favouring disclosure outweigh the legitimate interests of freedom ofexpression and right to privacy of the persons sought to be identified if the disclosure is ordered.[21] With respect to disclosure of the information sought by third parties, Warman recognizedthe factors set forth in BMG as also being appropriate, including:1. the third party against whom discovery is sought must be in some wayconnected to or involved in the misconduct;2. the third party must be the only practical source of the information availableto the applicant; and3. the third party must be reasonably compensated for expenses and legal costsarising out of compliance with the discovery order.

- Page 5 -[22] I am cognizant, in the present case, that the alleged defamatory statements were made inthe context of a hard-fought political campaign. They clearly related to the mayoral position andthe governance of the Mayor, councillors and the municipal government generally. In ensuringthat proper weight is given to the important value of freedom of expression, particularly in thepolitical context, the importance of the stringent prima facie test is necessary to protect andbalance the public interest in favour of disclosure with the competing interests of privacy andfreedom of expression.[23] The test as set forth in Warman is intended to be flexible, to be applied on a case-by-casebasis having regard to the circumstances of the case, as indicated by Wilton-Siegel J. Indeed, itis clear from his decision that he recognized the principles as set forth in Norwich Pharmacal,Irwin Toy, and BMG all to be good law and also, at paragraph 38, that the Court's inherentjurisdiction to control its procedures, and its equitable jurisdiction, are applied flexibly to meetthe particular circumstances of each case.2011 ONSC 3996 (CanLII)[24] In this case, the test as set forth in Warman is appropriate, with respect to the namedDefendants as has been acknowledged by all of the parties, with the overlay of the tripartite testset forth above at paragraph 21 with respect to the non-party, Goldblatt.The Submissions of the PartiesThe Plaintiff[25] It is the position of the Plaintiff that the ultimate issue is whether the identity of thepersons alleged to have defamed the Plaintiff can be revealed despite the fact that such disclosurewould violate their privacy rights. The Plaintiff argues that the information is required in orderto proceed with this action and that there are no other sources for said information.[26] The Plaintiff submits that the blogs and comments are, in their plain and ordinarymeaning, defamatory, and are sufficient to establish a prima facie case. She further submits thatthe statements have harmed and will continue to harm her reputation and are causing her bothemotional harm and fear for her safety. I note that the Plaintiff did not provide evidence insupport of this submission, nor did she provide any affidavit evidence in support of this motion.The only affidavit filed in support of the Plaintiff’s motion was that of Christoper Cooper, theDirector of Legal Services and Town Solicitor of Aurora. The Plaintiff acknowledged that therewere no further blog comments posted after this action was commenced.The Defendants[27] The Defendants submit that the Plaintiff has not met the tests set forth in Warman as (i)the anonymous commentators were free to determine their level of anonymity and had anexpectation of privacy; (ii) the Plaintiffs have not specifically set forth the defamatory words inthe Statement of Claim, and therefore the underlying merits of the case cannot be assessed andno determination of a prima facie case can be made; (iii) moreover, there is no cogent evidenceto connect the individual Defendants with the website or the ability to obtain the IP informationsought; (iv) the Plaintiff’s conduct indicates that she has not acted in good faith: she served a

- Page 6 -Notice of Action, without the Statement of Claim, did not particularize the alleged defamatorywords, and has named individual Defendants’ counsel without compelling reason; and (v) thePlaintiff has taken no reasonable steps to identify the anonymous individuals, includingrequesting production of the information in the context of the discovery process.[28] Further, the Defendants argue that the motion to compel information against theindividual Defendants’ lawyer, Goldblatt, cannot succeed, as the subject message orcommunication was in the context of a settlement discussion, was communicated “withoutprejudice” with the expectation of privacy, was communicated within the context of thislitigation and is subject to settlement privilege.[29] The Defendant also submits that the Plaintiff has not complied with the provisions of theLibel and Slander Act, R.S.O. 1990, c.L-12, as she did not give notice of the words complainedof within the stipulated time period.2011 ONSC 3996 (CanLII)The Intervener CCLA[30] The CCLA emphasized the issues raised by this motion, including the relationshipbetween privacy and anonymity on the internet, the right to freedom of expression guaranteed bythe Charter, and the disclosure obligations of Defendants and non- parties in actions fordefamation against anonymous internet users engaged in political free speech.[31] The Court must reconcile the interests of a party seeking to sue for defamation and thepublic interest served by protecting freedom of speech. Regard must also be had to the nature ofthe expression at issue. The Intervener submits that significant weight must be given to thepolitical nature of the speech in question and the Plaintiff’s position as an elected official. In thecircumstances of a website promoting political discussion, the possibility of a defence of faircomment reinforces the requirement to establish the elements of defamation on a prima faciebasis.[32] Further, the CCLA submits that where freedom of expression and privacy interests areraised, a more robust standard is required to address the chilling effect on freedom of expressionthat will result from disclosure.[33] Finally, the Intervener submits that perceived threats to the safety of the Plaintiff shouldnot be considered under the tests set forth in Warman, as they are matters for law enforcementofficials.Analysis[34] In this case, applying the factors set forth in the Warman test to the Plaintiff’s motion andaction, I find as follows.[35] The Plaintiff has failed to establish a prima facie case. The Plaintiff in this defamationaction, has failed to set forth the specific words complained of as being defamatory. Thejurisprudence clearly establishes that in actions of libel and slander, the precise words

- Page 7 -complained of are material and should be set forth with as much particularity as possible in thepleading itself, ideally verbatim or at a minimum, with sufficient particularity to allow theDefendant to respond. 114931 Ontario Ltd. v. Canada (Attorney General), 2008 CarswellOnt.6932; Leahey v. Canada, 2008 F.C. 620 CanLII). This is not a case where the Plaintiff is unableto obtain the verbatim defamatory statements and to extract them from the articles and blogcomments noted.[36] In order to establish whether a prima facie case exists, the Court must engage in adetailed and contextual analysis of each statement alleged to be defamatory. In my view, this isnot possible where the Plaintiff has not clearly identified the words relied upon. While thePlaintiff argues that the words of defamation are clearly set forth in the articles, it is not the roleof the Court to parse the impugned articles and blogs before it to attempt to determine, bydivination or divine inspiration, which statements it should assess in determining whether aprima facie case has been established.2011 ONSC 3996 (CanLII)[37] I find, further, that the Plaintiff has failed to address the issue of the failure to providenotice of the specific defamatory words within the limitation period set forth at s.5 of the Libeland Slander Act.[38] While my finding with respect to the Plaintiff’s failure to establish a prima facie case inthis matter is dispositive of the motion, I make the following additional findings with respect tothe balance of the test.[39] I find that the unknown, anonymous Defendants had a reasonable expectation ofanonymity in the particular circumstances, given that they were free to identify themselves, towrite under a pseudonym or remain anonymous with respect to the website, and, in this case, theanonymous Defendants chose to write under a pseudonym.[40] I am not convinced that the Plaintiff has taken reasonable steps to identify the anonymousDefendants, as she has not proceeded to either documentary discovery or examination fordiscovery pursuant to the discovery process under the Rules, in the context of which she mayobtain those identities sought.[41] In the circumstances of this case, where the Plaintiff has not established a prima faciecase, the public interest favouring disclosure clearly does not outweigh the legitimate interests infreedom of expression and the right to privacy of the persons sought to be identified.[42] With respect to the tests as related to the third party, Goldblatt, even if the Plaintiffs hadestablished a prima facie case, there is no evidence which would justify the compelling of theinformation sought from Goldblatt as third party. There is no evidence to establish that Goldblattwas involved in the alleged defamation or that he is the only practical source of the information.Moreover, the communication linking Goldblatt to any information regarding the anonymousDefendant was communicated within the context of settlement negotiations on a “withoutprejudice” basis while Goldblatt was counsel for the named individual Defendants in this action.It was clearly communicated with an expectation of confidentiality and is privileged.

- Page 8 -[43] The Plaintiff has failed to establish a prima facie test and accordingly, I dismiss thismotion.2011 ONSC 3996 (CanLII)

- Page 9 -Costs[44] I would urge counsel to arrive at an agreement among themselves with respect to theissue of costs. In the event that they are unable to do so, I would invite the parties to provide anycosts submissions in writing, to be limited to three pages, including the costs outline. Thesubmissions may be forwarded to my attention, through Judges’ Administration at 361University Avenue, within thirty days of the release of this Endorsement.Carole J. Brown J.2011 ONSC 3996 (CanLII)Date: July 20, 2011

Between:SUPREME COURT OF NOVA SCOTIACitation: Mosher v. Coast Publishing Ltd., 2010 NSSC 153William Mosher and Stephen Thurberv.Date: 20100414Docket: Hfx No. 326977Registry: HalifaxApplicants2010 NSSC 153 (CanLII)Coast Publishing Limited and Google Inc.RespondentsJudge:Heard:Decision:The Honourable Justice M. Heather RobertsonApril 14, 2010, in Chambers, Halifax, Nova ScotiaApril 14, 2010 (Orally)Written Release: April 19, 2010Counsel:Michelle Awad, Q.C. and Cindy Locke, articled clerk forthe applicants

Page: 2Robertson, J.: (Orally)[1] This is an application brought on behalf of two individuals, the Chief andDeputy Chief of the Halifax Regional Fire Services for an abridgement of thenotice period required to bring this application and for disclosure of informationfrom the two respondents that the applicants hope will lead them to the individualswho authored the comments published in The Coast newspaper, that they allege aredefamatory.[2] I have read Ms. Locke's affidavit. She sets out all the information withrespect to these various anonymous internet users. Counsel for the applicants hastold the Court that Mr. Coles who represents the Coast Publishing Limited hasindicated he will not appear in opposition to the application. Google Inc. havesimilarly communicated that they will obey any order of the Court, but will notappear.2010 NSSC 153 (CanLII)[3] So, first of all let me grant the abridgement in time.[4] Now secondly, with respect to the main application the order for production,I note that you have been searching the new Rules to see how this might beachieved and you have relied on Rule 18.12(2).18.12 (1) A judge may order a witness or a custodian of a document,electronic information, or other thing to submit to discovery.(2) A judge may order discovery before a proceeding has started inone of the following circumstances:(a)the party who moves for the discovery wishes to start aproceeding but is prevented from doing so immediately,and evidence needs to be preserved.[5] Now 18.12(2) specifically deals with the court's power to order discovery ofa party that may lead to a disclosure before a proceeding is started. That is notreally what is requested in this application.[6] I believe that an order for production under Rule 14.12(1) is moreappropriate.

Page: 3A judge may order person to deliver a copy of a relevant or relevant electronicinformation to a party or at the trial or hearing of a proceeding.[7] And I believe that these Rules are flexible enough to require such productionin the pre commencement stage of an action, which is where you are. You need toidentify those individuals who have committed the alleged defamations and youcannot start an action until you know who they are. Your requested order entails aprocess to identify the individuals.[8] I have no problem in principle with your application and prepared to grantthe order. Because the court does not condone the conduct of anonymous internetusers who make defamatory comments and they like other people have to beaccountable for their actions. So, this is an appropriate circumstance where yourclients should have the right to seek the identity of those persons so you can takethe appropriate action with respect to the alleged defamatory acts. I reviewed all ofthe authorities that you presented to me and obviously the most compelling is theYork University v. Bell Canada Enterprises, [2009] O.J. No. 3689, Justice Strathy'shandling of anonymous internet users. But, the interesting thing about thatdecision is that York University sought the information from Bell Canada. I amwondering if you are going to be required as a second step to come back to thecourt and get an order requiring a local internet provider to identify the actualaccount and I.P. user.2010 NSSC 153 (CanLII)...MS. AWAD: That's our understanding as well My Lady and I agree with yourreading of the York University case, that they were actually at step two, a bit furtherthan we are right now and we don't know at this stage whether a step two would berequired. ...THE COURT: You do not know what response The Coast will make andwhether they have some other source of information as to the identity of thesepeople. So, that's the nature of your order then.MS. AWAD: Yes, as Your Ladyship probably deduced from Mr. Fraser'saffidavit the wording of the order as it relates to Google was actually somethingthat Google had input into. They tell us that they have received court orders that,

Page: 4ask them to do things they couldn't do either because of the wording or because ofthe way the technology is set up. The Coast order has not been negotiated in thesame way, the provisions of the order relating to The Coast, but I ‘m sure Mr.Coles and I ...THE COURT: So, with respect to Google they can provide you with a name,account status, secondary e-mail, (I am not familiar with that particular aspect, butthere must be a process involved there), account services, account creation date andthe Canadian I.P. data. So, that is the most telling piece of information, theCanadian I.P. address. And, then with respect to the Coast Publishing Limited theywill give you all information in their possession regarding the identity of thesepeople.2010 NSSC 153 (CanLII)MS. AWAD: Correct. And, I note that the draft order didn't actually mentionRule 18 so it wouldn't necessarily require amendment in light of Your Ladyship'sTHE COURT: I think Rule 14 is the way to go, but we will accept that we havehad this discussion.Discussion regarding form of the order.MS. AWAD: In the event there is a part two, we are hopeful that there isn't, Itake it Your Ladyship wouldn't consider yourself seized in any way with this, that Iwould just bring that upTHE COURT: Yes, I would be seized with the matter because you may need apart two and you may either have to go to Bell or Eastlink wherever the I.P.addresses have been generated by a specific user account.MS. AWAD:Ladyship.THE COURT:So, if there is a part two then I would be in touch with YourYes, you may. Thank you.

Page: 5Justice M. Heather Robertson2010 NSSC 153 (CanLII)

Page 1Case Name:Neumann v. Alberta (Human Rights and CitizenshipCommission)IN THE MATTER OF the Human Rights, Citizenship andMulticulturalism Act, R.S.A. 1980, c. H-11.7(as amended)BetweenSeymour Neumann, applicant, andThe Chief Commissioner of the Human Rights andCitizenship Commission and the Edmonton Public SchoolBoard, respondents[2005] A.J. No. 11982005 ABQB 694142 A.C.W.S. (3d) 827Docket No. 0403 23663Alberta Court of Queen's BenchJudicial District of EdmontonBurrows J.Heard: May 27, 2005.Judgment: September 14, 2005.(33 paras.)Human rights law -- Discrimination -- Context -- Employment -- Dismissal -- Grounds -- Mental orphysical disability -- Administration and enforcement -- Judicial review.Application by Neumann for judicial review of the dismissal of his complaint against the EdmontonPublic School Board alleging discrimination in employment on the grounds of disability. Neumannwas a supply custodian with the Board since November 2001. He was terminated in June 2002. Oneof the reasons for his termination was his objectionable body odour. In his complaint, Neumannstated that his body odour problem resulted from physical disabilities caused by having polio as achild. His complaint was investigated by a human rights investigator, Stenhouse. Stenhouse inter-

Page 2viewed Neumann, his former managers, and the president of Neumann's local union. He also reviewedNeumann's employment personnel file. During the investigation, Stenhouse discussed thelink between the polio Neumann suffered as a child and the body odour problem. Neumann indicatedthat he was attempting to have his doctor provide a letter addressing the link, but Neumannnever produced such a letter. Neumann took the position that his employer had a duty to determineif there was a physical disability that caused the body odour. Stenhouse concluded that it was notreasonable to expect the employer to make inquiries to determine such a link. He found there wasno evidence presented to show that Neumann was discriminated against on the ground of physicaldisability and that there was no basis to proceed with the complaint. Upon request by Neumann, theChief Commissioner reviewed his complaint and upheld the dismissal.HELD: Application for judicial review dismissed. Stenhouse's investigation was thorough. It wasreasonable for both Stenhouse and the Chief Commissioner to attach some significance to the factthat Neumann blocked attempted communications with his physician given that he had not providedany medical evidence. Neumann's allegation of a reasonable apprehension of bias on the ChiefCommissioner's part was rejected. While it was confirmed that the Chairman of the Board of Trusteesfor Neumann's former employer had a contract to provide communication services to theCommission in 2004 and 2005, there was nothing on the record or evidence to indicate that a determinationthat Neumann's complaint had merit would have any impact on the Chairman.Statutes, Regulations and Rules Cited:Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, s. 35Counsel:Seymour Neumann appeared without CounselAudrey Dean for the Chief CommissionerJim Davies for the Edmonton Public School BoardREASONS FOR JUDGMENT1 BURROWS J.:-- Seymour Neumann seeks judicial review of a decision of the Chief Commissionerdismissing his complaint against the Edmonton Public School Board of discrimination inemployment on the grounds of physical disability.2 Mr. Neumann was a supply custodian with the EPSB. His employment commenced in November2001. He was terminated on June 20, 2002. He filed his complaint on June 19, 2003. Hecomplained that the EPSB discriminated against him by terminating his employment because of aphysical disability. One of the reasons for his termination was his objectionable body odour. In hiscomplaint Mr. Neumann stated that his body odour problem resulted from physical disabilitiescaused by his having had polio as a child.3 Mr. Neumann's complaint was investigated by a Human Rights Investigator, Robert Stenhouse.Mr. Stenhouse interviewed Mr. Neumann, his EPSB manager, a second EPSB manager who

Page 3was involved in Mr. Neumann's case, and the president of the local of Mr. Neumann's union. Healso reviewed Mr. Neumann's EPSB personnel file which included documentation of Mr. Neumann'sassignments at various schools, his performance appraisals, and the documentation relatingto his termination.4 In December 2001, the head custodian of McNally School filed a performance appraisal withregard to Mr. Neumann. It raised several concerns regarding the quality of Mr. Neumann's work andproductivity. Under the heading "Personal Factors", it said: "All my staff complain (Body odour)."There was also a verbal complaint to the same effect from the head custodian of East Glen School.Mr. Neumann's manager, Wally Gloeckler, met with Mr. Neumann to discuss the concerns raised inthe appraisal. Mr. Neumann indicated in his complaint that he found Mr. Gloeckler's approach tothe subject insensitive.5 On April 10, 2002, Mr. Neumann met with Mr. Gloeckler, Ms. Murrin and Mr. Luellman, thepresident of the union local, to discuss performance and behavioural problems raised in three reportsfrom schools at which Mr. Neumann had worked. On the same day Mr. Neumann wrote toMs. Murrin on the subject of one of the complaints.6 On April 19, 2002, Mr. Gloeckler wrote to Mr. Neumann summarizing the discussion at theApril 10 meeting. The three concerns were identified in that letter as follows:McNally SchoolDecember 3, 2001Holyrood SchoolFebruary 28, 2002J.A. Fife SchoolApril 2, 2002Work performance and body odourSecurity Services concern andpoor mannersPoor work performanceMr. Gloeckler indicated that he had "... no reason to doubt that each of the three complaints against[Mr. Neumann was] based on merit." He ended his letter as follows:You need to know that if we receive any further concerns that have merit regardingyour work performance, attitude or personal hygiene, it may result in a recommendationthat we deactivate your temporary employment relationship withEdmonton Public Schools.7 On May 7, 2002 Mr. Neumann responded to Mr. Gloeckler's April 19 letter. The letter commenced:The purpose of this letter is to respond to the specific concerns regarding myperformance mentioned by Phanh Tram, Head Custodian at McNally CompositeHigh School.This was the performance appraisal of December 2001 which contained the complaint concerningMr. Neumann's body odour.8 In this response Mr. Neumann specifically identified three issues raised in the performanceappraisal. However he did not identify or respond to the body odour concern.

Page 49 A further meeting involving Mr. Neumann, Mr. Gloeckler, Ms. Murrin, and Mr. Luellmanwas held on May 9, 2002. The record does not indicated whether this meeting was prompted by newconcerns or was held to continue the discussion of the concerns previously addressed. The issue ofbody odour was discussed. In discussing this meeting with Mr. Stenhouse during his investigation,Mr. Neumann again indicated that he considered Mr. Gloeckler's approach to the body odour issueto be insensitive.10 After the meeting Mr. Neumann wrote to Mr. Gloeckler addressing a number of the concernswhich had been raised. The letter contained the following:As to body odor, I will state for the record at times I have found when nervous orworking hard, I do perspire. I do eat foods that can also cause odor. I believe noother school has complained in writing since this incident [the McNally Schoolcomplaint]. Also on this shift of the complaint at McNally, I had spilled a bag ofgarbage on my shirt, which had gravy and other foods in it. The rubber gloves Iwas given for protection caused my hands to perspire which makes an enclosedrubber casing smell offensive. Again, I apologize if I have offended someone'ssense of smell. I will continue to monitor this.11 There was no suggestion in Mr. Neumann's letter that his body odour problem had anythingto do with a physical disability.12 On May 14, 2002, Mr. Gloeckler again wrote to Mr. Neumann responding to a letter Mr.Neumann had written concerning one of the incidents of concern. That letter concluded:If I am in receipt of any further concern or concerns regarding personal hygiene,work performance or interpersonal relationships, I will recommend de-activationof your temporary custodial relationship with Edmonton Public Schools.13 On June 14, 2002, the principal of Waverly School filed a complaint regarding the quality ofMr. Neumann's work at that school. She asked that Mr. Neumann be replaced at her school.14 On June 20, 2002, as a result of the new complaint, Mr. Gloeckler recommended that Mr.Neumann's employment be terminated. On the same day, Mr. G. R. Holt, Director of PersonnelSupport Services wrote to Mr. Neumann to terminate his employment.15 Mr. Neumann declined to pursue a grievance in relation to his termination. The local unionpresident advised Mr. Stenhouse that Mr. Neumann had not indicated to him that the body odourproblem might be related to a physical disability until several months after his termination.16 Mr. Stenhouse, in conducting his investigation, discussed the link between the polio Mr.Neumann had suffered as a child and the body odour problem with Mr. Neumann. Mr. Neumannindicated he was attempting to have his doctor provide a letter addressing this link. However, Mr.Neumann never produced such a letter. He refused consent for Mr. Stenhouse to speak to his doctordirectly.17 In subsequent correspondence Mr. Neumann took the position with Mr. Stenhouse that hisemployer had a duty to determine if there was a physical disability that caused the body odour.18 In his Investigation Report, Mr. Stenhouse assessed whether Mr. Neumann was discriminatedagainst with respect to any terms or conditions of employment or was terminated on the

Page 5grounds of physical disability. He observed that there were numerous complaints as to Mr. Neumann'sperformance unrelated to body odour, that Mr. Neumann was given ample opportunity torespond to all complaints, that he never indicated to his employer that his body odour problem waslinked to a physical disability, and that there was no evidence to show that such a link in fact existed.19 Mr. Stenhouse concluded that it was not reasonable to expect the employer to make inquiriesto determine if there was a link between the body odour problem and a physical disability giventhat Mr. Neumann had not even suggested the possibility of such a link in any of the meetings or inhis correspondence with his employer.20 Mr. Stenhouse concluded that there was no evidence presented to show that Mr. Neumannwas discriminated against on the ground of physical disability and that there was no basis to proceedwith the complaint.21 On April 7, 2004 Mr. Neumann was informed that his complaint had been dismissed. OnMay 3, 2004 he sought a review of the dismissal by the Chief Commissioner. On June 7, 2004 Mr.Neumann was advised that the Chief Commissioner had reviewed and upheld the dismissal of thecomplaint. He was given the Chief Commissioner's reasons for that decision. Those reasons concludedas follows:Standard of ReviewAlthough body odors can be associated with health problems like diabetes andintestinal tract disorders there are many other causes such as personal hygieneand diet.In this case Seymour Neumann provided no evidence of any medical disabilityand refused to give EPS permission to contact his own doctor for comment. Alsoin his May 9, 2002 letter to EPS Seymour Neumann advised: "... I have foundwhen nervous or working hard, I do perspire. I do eat foods that can also causeodor".In the absence of a demonstrated physical disability I find no reasonable basis toproceed to the panel hearing stage and hereby dismiss this appeal.22 The privative clause relating to decisions of the Chief Commissioner is Human Rights, Citizenshipand Multiculturalism Act, R.S.A. 2000, c. H-14, s. 35:A decision of the chief commissioner under section 26(3)(a) is final and bindingon the parties, subject to a party's right to judicial review of the decision.23 The decision under review is the Chief Commissioner's decision that Mr. Neumann's complaintwas without merit and should have been dismissed. The Chief Commissioner's decision answereda question of fact. The authorities are clear that in these circumstances the standard of reviewis reasonableness. As the Alberta Court of Appeal said in equivalent circumstances in Calgary v.Alberta Human Rights Commission (2003) 320 A.R. 314 (para. 7):

Page 6Analysis... the standard of review in this case was reasonableness. Applying the test inPushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1S.C.R. 982, there was a partial privative clause which allowed for judicial review;the Chief Commissioner had some expertise in fact finding on humanrights complaints; the nature of the problem was a question of fact and the purposeof the Act was to allow the Commissioner to consider human rights complaints.We agree with the chambers judge that the Chief Commissioner's decisionwas reasonable.24 In my view Mr. Stenhouse's investigation was thorough. He addressed the right questions.He gathered all the relevant evidence. He analysed the evidence carefully and logically. His conclusionwas reasonable. Further, in my view, the decision of the Chief Commissioner was also reasonable.25 In reaching that conclusion I have rejected the submissions Mr. Neumann made in this applicationand which I describe and discuss below.26 Mr. Neumann submitted materials on this application showing that he suffered from polio asa child. He did not however provide any evidence other than his own unsworn submissions to showthat there was a link between the physical consequences of his polio and his body odour problem.27 Mr. Neumann submitted that it was improper for the investigator to ask for permission tospeak to Mr. Neumann's doctor or to consider Mr. Neumann's refusal of that permission in comingto his conclusion. I reject this submission. It was not improper for Mr. Stenhouse to attempt to determineif there was any medical support for Mr. Neumann's suggestion of a link between his polioand his body odour and to seek to speak to Mr. Neuman's doctor in that regard. Mr. Stenhouse requiredMr. Neumann's consent to do so. In my view it was reasonable for both Mr. Stenhouse andthe Chief Commissioner to attach some significance to the fact that Mr. Neumann blocked thatavenue of inquiry given that he had also not provided any medical evidence.28 Mr. Neumann submitted that his employer should have observed that his body exhibitedphysical deformities resulting from his childhood polio and should have made inquiries as towhether the deformities lead to his body odour problem. He submitted that his employer shouldhave recognized that a person in his situation would be reluctant to discuss his physical disabilityand an embarrassing condition resulting from it. I understand his argument to be that because theChief Commissioner did not so conclude, his decision was unreasonable.29 I reject this submission. Though in the first interview with Mr. Gloeckler he denied that hehad a body odour problem, in subsequent correspondence he acknowledged it, provided a variety ofexplanations for it, and undertook to monitor it. The first he mentioned the link to physical disabilitywas during Mr. Stenhouse's investigation. The first he mentioned a reluctance to discuss the linkbetween his polio and his body odour, so far as I have been able to determine, was in this application.The late emergence of his explanation for not mentioning the possible link between polio andhis body odour, when his employer brought the problem to his attention, damages his credibilitysignificantly.30 The conclusion that Mr. Neumann's employer should not be expected to make inquiries as towhether Mr. Neumann's body odour problem was an issue of personal hygiene or an issue of physi-

Page 7cal disability, when Mr. Neumann never suggested the latter despite having several opportunities todo so, was reasonable.31 Mr. Neumann submitted that there was a reasonable apprehension that the Chief Commissioner'sdecision was affected by bias against him, because Mr. Don Fleming, Chairman of theBoard of Trustees for the EPSB, described himself in campaign literatures as an advisor to the ChiefCommissioner's of the Alberta Human Rights and Citizenship Commission.32 I reject this submission. The Commission filed an affidavit in this application confirmingthat Mr. Fleming did have a contract to provide public communication services to the Commissionin 2004 and early 2005. However there is nothing in the record or evidence to indicate that a determinationthat Mr. Neumann's complaint had merit would have any impact on Mr. Fleming. There isnothing to indicate that Mr. Fleming in his EPSB Board of Trustees capacity or otherwise had anyparticipation in any decision affecting Mr. Neumann. There is no foundation for any suggestion thatif Mr. Fleming knew anything about Mr. Neumann's case, he would have any position with respectto it, except, I expect, that it should be dealt with justly.33 As previously stated, my conclusion is that the Chief Commissioner's decision was reasonable.Mr. Neumann's application is dismissed.BURROWS J.cp/e/qw/qlpha

IN THE SUPREME COURT OF BRITISH COLUMBIACitation:Between:AndNishina v. Azuma Foods (Canada) Co., Ltd.,2010 BCSC 502Maki NishinaDate: 20100415Docket: S086820Registry: VancouverPlaintiff2010 BCSC 502 (CanLII)Azuma Foods (Canada) Co., Ltd.DefendantBefore: The Honourable Madam Justice LooReasons for JudgmentCounsel for the Plaintiff:Counsel for the Defendant:Place and Date of Trial:Place and Date of Judgment:R. VanderkooyL. J. GrenierVancouver, B.C.July 27-31, August 5-7, andOctober 13-16, 2009Vancouver, B.C.April 15, 2010

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 2INTRODUCTION[1] The plaintiff Maki Nishina claims damages for wrongful dismissal arising outof the termination of her employment with the defendant Azuma Foods (Canada)Co., Ltd. At the time of her termination Ms. Nishina was 43 years old and employedas a quality control associate. The defendant contends that it had cause to terminateher employment as a result of four incidents that occurred between July 5, 2007 andOctober 19, 2007 when she was dismissed.[2] Ms. Nishina also claims damages for bad faith or mental distress, punitivedamages based on breach of fiduciary duty, and damages for loss of fringe benefits.2010 BCSC 502 (CanLII)FACTUAL BACKGROUNDA. AZUMA FOODS (CANADA) CO., LTD.1. Corporate Structure[3] Azuma Foods Corporation is a Japanese company headquartered in MiePrefecture, Japan. As its name implies, the company produces food products.Azuma Foods International Inc., U.S.A., operates and produces Japanese foodproducts in Haywood, California.[4] Azuma Foods (Canada) Co., Ltd. was incorporated in British Columbia onMarch 14, 2003. In September 2005 construction of its purpose built and designedfacilities on Mitchell Island, Richmond was complete. Fairly shortly afterwards thecompany began producing its “core” Japanese ready-to-eat frozen food products:capelin roe, flying fish roe, and seaweed salad. The plans were to expand its productline, and the company now produces monkfish livers, black cod collar with spicysauce, and codfish milt.[5] As its operations involve the processing of fish and other seafood foodproducts, the company is subject to the Fish Inspection Regulations, C.R.C., c. 802,and the Canadian Food Inspection Agency (“CFIA”) acts and regulations.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 3[6] I will refer to the defendant as “Azuma Foods”, and the California operation as“Azuma Foods International”. However, the two companies and Azuma FoodsCorporation appear to work closely together. In evidence the companies werereferred to as the Azuma Foods Group. Azuma Foods was referred to as “theCanadian branch”, or subsidiary of Azuma Foods International, or “the U.S. branch”.[7] At times where I am not certain which entity was being referred to in theevidence, I will refer to the company as “Azuma”.2. Management of the Company2010 BCSC 502 (CanLII)[8] Toshinobu Azuma is the chairman and is also referred to as the owner ofAzuma. Akimasa Takuma is the president of Azuma Foods and resides in Japan.Takahiro Tamura is the president of Azuma Foods International, and vice-presidentof Azuma Foods. Toshie Azuma is the daughter of Toshinobu Azuma and works atAzuma Foods International as Chief Financial Officer and head of administration.Neither Ms. Azuma, Mr. Takuma nor Mr. Tamura testified at trial, although theirnames were mentioned.[9] Kimiyuki Inamura is the vice-president and corporate secretary for AzumaFoods. Ichiro Sugawara is Azuma Foods’ sales manager, and Takashi Miyamoto isAzuma Foods’ production manager. Robert Kokuryo is the logistics andadministrative manager for Azuma Foods. His administrative responsibilities includehuman resources, payroll, and the daily functioning of the company as a whole.3. Culture of the Company[10] Azuma Foods is a fairly small company. It began operating in B.C. in June2003 with Mr. Inamura as its sole employee. The business at the time consisted ofimporting and exporting Japanese food products. By January 2006 there wereapproximately 20 employees. There are presently close to 40 employees.[11] I think it is fair to say that Azuma Foods is, to a large degree, a Japanesecompany that conducts business in B.C.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 4[12] Except for Mr. Kokuryo who was raised and educated in Vancouver,Ms. Nishina and all of Azuma’s witnesses testified through a Japanese translator.[13] Mr. Kokuryo was frequently an “observer” at meetings that took place withinAzuma. Although the meetings took place in Japanese, Mr. Kokuryo’s notes of whatoccurred at the meetings are in English.[14] Azuma has two “morning greetings” each work day. The factory morninggreeting takes place in the lunch room on the second floor. It is called the factorymorning greeting because it involves everyone in the factory, including the qualitycontrol (“QC”) department, accounting, administration, and sales. At the morninggreeting, announcements are made, and the day’s factory production and shippingschedules are reviewed.2010 BCSC 502 (CanLII)[15] The second morning greeting deals with matters affecting the general officearea and takes place immediately after the factory morning greeting.[16] All of the witnesses who work for Azuma struck me as extremely polite. Theygenerally referred to their colleagues by their surnames, and at times seemed tohave a difficult time answering a question directly. For example, when Ms. Nishinawas asked a question that would generally require a “yes” or “no” answer, she wouldanswer “yes, I think so”. After this occurred several times I indicated that I did notunderstand whether her answer was “yes”, or “yes, but she was not certain”.Ms. Nishina explained that the “polite Japanese way” is not to answer a questiondirectly or definitely but to use the word “think”; otherwise it is considered rude.[17] I found that all of the witnesses did their best to tell the truth and werecredible.B. MAKI NISHINA: EDUCATION AND EMPLOYMENT HISTORY[18] Ms. Nishina is a Japanese citizen. In 1988 she obtained a Bachelor of Artsdegree in English and American Literature from Baika Women’s College in Osaka,Japan. From 1988 to 1997 she worked in Osaka as an executive secretary associate

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 5or administrative assistant. In 1994 she completed a two-year American languageprogram at California State University in Hayward, California and then returned toOsaka where she again worked as an administrative assistant. In 1998 she returnedto California, and in May 2000 completed an Associate in Arts program thatconcentrated on business accounting. On June 4, 2001 she began employment withAzuma Foods International in Haywood, California. She worked as an accountingassistant and reported to Ms. Toshie Azuma.[19] Because she is a Japanese citizen, Ms. Nishina worked as a foreign workerunder the applicable United States immigration laws.2010 BCSC 502 (CanLII)[20] Ms. Nishina testified that in mid-2004 Mr. Tamura asked her if she was willingto work in Canada as the QC supervisor for its proposed seafood processing plant.As a result of their discussion, she understood that if she did not agree to go toCanada, her employment would end, but that if she accepted the position in Canadafor two or three years, afterwards Mr. Tamura would help her find another position inCalifornia and help her apply for a green card.[21] Ms. Nishina decided she would take the job in Canada, and in December2004 she was moved from the accounting department to the QC department atAzuma Foods International so that she could start learning about QC. She wastaught by Mr. Arakawa, a vice-president who knew about QC in California but knewnothing about QC in Canada.[22] In May 2005 Ms. Nishina was sent to Vancouver. She trained for three dayswith Gordon Oikawa to learn about the applicable QC laws and regulations inCanada and the preparation of the company’s Quality Management Program(“QMP”) plan.[23] Ms. Nishina returned to California and reported to Mr. Arakawa that it was“completely different” in Canada and that Canadian regulations were much morestrict than those in California.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 6C. CANADIAN FOOD AND INSPECTION AGENCY AND QMP[24] In order to understand Azuma’s business and Ms. Nishina’s role as the QCsupervisor, it is necessary to understand the role of the CFIA, the QMP, and theQMP plan.[25] The QMP is described on the CFIA’s website as follows:The Quality Management Program (QMP) is a regulatory-based system thatrequires all federally registered fish processing plants in Canada to developand implement an in-plant quality control program. As set out in the FishInspection Regulations, all establishments in Canada that process fish andseafood for export or inter-provincial trade must be registered with theGovernment of Canada. To become federally registered, a fish processor islegally required to develop a QMP plan of their own, following the "QMPReference Standard"; submit it to the CFIA for review and acceptance; andapply it to their processing operations.…The QMP uses the principles of "HACCP" (Hazard Analysis Critical ControlPoint), an internationally recognized system for ensuring safe foodproduction, to provide a high level of assurance that fish and seafoodproducts produced in Canada are safe and wholesome to eat. However, theQMP also deals with non-safety issues, including fish quality and federalregulatory requirements such as labelling.2010 BCSC 502 (CanLII)[26] The CFIA’s Fish and Seafood Facilities Inspection Manual refers to the rolesand responsibilities of the CFIA, fish processing establishments such as Azuma, andthe QMP plan as follows:3.4.2 The CFIA assesses the fish processing industry's compliance throughregulatory verification. Regulatory verification focuses on assessing theadequacy of an establishment's QMP plan and verifying that theestablishment applies the system as described and that it is effective inmaintaining compliance with the regulatory requirements.…3.5.2 Fish processing establishments are responsible for ensuring that theyhave the personnel, on staff or under contract, with the necessary knowledgeand skills required to develop, implement and maintain their QMP plans andto ensure that their operation is in compliance with all applicable legislationand regulations.…

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 73.6 The QMP ModelThere are three basic control components to a QMP plan: the PrerequisitePlan, the Regulatory Action Point (RAP) Plan, and the HACCP (HazardAnalysis Critical Control Point) Plan.[27] The QMP Reference Standard and Compliance Guidelines include thefollowing topics:1. Management Roles and Responsibilities2. Background Product and Process Information3. The Prerequisite Plan4. The Regulatory Action Points (RAP) Plan5. The Hazard Analysis Critical Control Point (HACCP) Plan6. Verification and Maintenance of the QMP Plan7. Record Keeping2010 BCSC 502 (CanLII)[28] Another section of the CFIA QMP Reference Standard and ComplianceGuidelines states as follows:Intent:Management commitment is critical to the successful development,implementation, and maintenance of the QMP Plan.Compliance Guidelines:1. The name, business address, business telephone number and thetitle of the person responsible for the QMP at the establishment mustbe identified.2. It is not mandatory but it is strongly recommended that seniormanagement of the establishment demonstrate their commitment tothe QMP in writing.[29] Wayne Louie is a fish inspection specialist with the CFIA. He worked withAzuma and its consultants in the design and construction of its Mitchell Island facilityand continues to be the fish processing specialist inspector for Azuma.[30] Mr. Louie explained in detail both the CFIA’s QMP and the regulatoryrequirement that Azuma have and strictly adhere to an approved QMP plan.[31] The CFIA regulations require a QMP plan for each product or process. TheFish Inspection Regulations require an annual internal audit for each QMP plan. For

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 8example, Azuma processes fresh Atlantic salmon fillets and must conduct an annualinternal audit to ensure compliance with the applicable QMP plan for that product.[32] The CFIA statutory and regulatory requirements are stringent, detailed,onerous, and technical. The QMP and Azuma’s QMP plan impact not only on almostall aspects of the company’s fish processing facility on Mitchell Island, but also on itssuppliers. All of its suppliers are required to comply with Azuma’s suppliers’ qualityassurance (“SQA”) plan.[33] Mr. Louie testified that during the time Ms. Nishina was employed withAzuma, he worked closely with her. He estimates that he had approximately 200contacts or communications with her. Ms. Nishina was responsible for Azumacomplying with its QMP plan, and he found that she complied with her statutoryduties. While she had no formal training in HACCP plans, Mr. Louie said that overtime, Ms. Nishina became more knowledgeable of HACCP plans.2010 BCSC 502 (CanLII)[34] Gordon Oikawa has worked as a fish food processing consultant since 1998.Prior to that he was employed by the CFIA for 18 years.[35] Mr. Oikawa testified that several years ago he met with people from Californiawho were looking into the feasibility of Azuma Foods International opening aprocessing facility in British Columbia. Mr. Oikawa said he informed them that thestringent federal fisheries standards were difficult to meet, the CFIA was “verypowerful in B.C.”, and given the large financial investment that was needed toensure federal compliance, Azuma might be better off remaining in California.[36] However, Mr. Oikawa testified that Azuma’s representatives thought that theCanadian fisheries management was strong and would ensure a continuous sourceof raw materials the company sought for its Japanese food products.[37] In May 2005 he became Azuma’s consultant; he provided three days oftraining to Ms. Nishina and wrote Azuma’s QMP plan. He explained to Ms. Nishinawhat was written, the criteria that needed to be met, and how the criteria should bemet.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 9D. EMPLOYMENT AT AZUMA1. Ms. Nishina’s Employment with Azuma Foods[38] On August 13, 2005 Ms. Nishina transferred from Azuma Foods Internationalto Azuma Foods. Her work permit was prepared by her employer. It provides thather occupation was financial manager and that her permit to work in Canada wassubject to the following conditions:1. UNLESS AUTHORIZED, PROHIBITED FROM ATTENDING ANYEDUCATIONAL INSTITUTION AND TAKING ANY ACADEMIC,PROFESSIONAL OR VOCATIONAL TRAINING COURSE.2. NOT AUTHORIZED TO WORK IN ANY OCCUPATION OTHERTHAN STATED.3. NOT AUTHORIZED TO WORK FOR ANY EMPLOYER OTHERTHAN STATED.4. NOT AUTHORIZED TO WORK IN ANY LOCATION OTHER THANSTATED.5. MUST LEAVE CANADA BY 23 APR 20072010 BCSC 502 (CanLII)[39] The following remarks also appear on Ms. Nishina’s work permit:REMARKS:HOLDER IS INTERCOMPANY TRANSFEREE PER GATSAGREEMENT, ON CONTRACT TO ENGAGE IN DUTIES ASMANAGER, FINANCIAL PLANNING AND ACCOUNTINGFOR THE CANADIAN SUBSIDIARY OF AZUMA FOODSINTERNATIONAL, USA.[40] Nothing turns on the fact that Ms. Nishina was engaged to work as QCsupervisor, and not in financial planning and accounting. It is important that AzumaFoods knew that as long as Ms. Nishina was in Canada she could work for no otheremployer.[41] When Ms. Nishina arrived in mid-August 2005 she generally worked withothers in preparation for the opening of the new building (which occurred around themiddle of September 2005).[42] The building is a two-storey stand-alone building. The factory, productionarea, and adjoining shipping dock are all on the ground floor. The general office areais a wide-open office space on the second floor measuring approximately 70 by 30feet where employees (including those in management) work and are separated

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 10from each other only by partitions. On the second floor there are also meetingrooms, a test kitchen, lunch room, changing rooms for the factory workers (whochange upstairs and work downstairs in the factory) and the QC room (whereMs. Nishina had her office).[43] On June 1, 2006 Ms. Nishina received a certificate entitled AF Azuma FoodsInternational Inc., U.S.A. Award Certification in recognition of her five years ofservice and “valuable contributions” to Azuma Foods. The certificate was signed byTakahiro Tamura, as President and CEO.[44] There is no question that Ms. Nishina was competent in her work as the QCsupervisor.2010 BCSC 502 (CanLII)[45] Ms. Nishina took her job seriously and was always willing and eager to learn.She worked closely with Mr. Oikawa and Mr. Louie to ensure that Azuma met all ofthe onerous regulatory requirements and adhered to its QMP plan. She wasresponsible for Compliance Verification (“CV”) and Systems Verification (“SV”), thetwo components for evaluating the QMP plan against the CFIA QMP ReferenceStandard. After a five-day CV audit by CFIA inspectors in 2006, Ms. Nishinaorganized a corrective action plan to rectify the only two non-conformities identifiedby the audit. To establish an SV, Ms. Nishina was required to develop, documentand ensure the implementation of a specific QMP plan for each fish and seafoodproduct Azuma Foods produced for sale and export, as well as an SQA plan fromeach of its suppliers.[46] Each time Azuma proposed a new product, Mr. Oikawa assisted Ms. Nishinawith the hazard analysis and HACCP because HACCP is not something that can betaught in a short time. As Mr. Kokuryo pointed out, BCIT has a two-year programdealing with HACCP.2. The Hiring of Dr. Musleh Uddin[47] As QC supervisor, Ms. Nishina worked in the production department andreported to Mr. Miyamoto, the production manager. However, in line with the

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 11company’s plans for sourcing new products and for growth, Azuma planned to havea separate QC department. For example, in terms of sourcing new products, thecompany hopes to be able to use West Coast octopus rather than imported octopusfor making sushi. In order to achieve its plan, the company wanted a person withformal HACCP education who could provide technical advice to and answerquestions from the production department and the research and developmentdepartment. Mr. Kokuryo gave this question as an example: “can I use this productto make what I want to make more firm?”[48] In May 2007 Azuma agreed to employ Dr. Musleh Uddin. Dr. Uddin waseducated in Bangladesh, but obtained his PhD in Food Science in Japan, spokeboth Japanese and English, and had Canadian citizenship. Dr. Uddin was working inJapan at the time and it was agreed that he would start working at Azuma Foods atthe beginning of June 2007.2010 BCSC 502 (CanLII)[49] Before Dr. Uddin started working for Azuma Foods, Mr. Inaumra toldMs. Nishina that Mr. Takuma had decided to hire Dr. Uddin as QC manager and thather “position fee” would be eliminated.[50] Ms. Nishina testified that she did not mind that Dr. Uddin would be hersuperior, but she was unhappy about losing her $250 per month position fee.[51] No one at Azuma Foods told her what her role would be when Dr. Uddinjoined the company. However, Mr. Kokuryo testified that he told her she should try tolearn as much as she could from him.[52] Like all other employees, Dr. Uddin was subject to a three-month probationperiod. By two forms entitled Notification of Appointment/Change, both datedAugust 2, 2007 and effective September 1, 2007, Dr. Uddin became QC supervisor(not QC manager) and Ms. Nishina was demoted from QC supervisor to QCassociate. Her $250 per month position fee was eliminated because she no longeroccupied a supervisory position. However, there is no evidence that her workactually changed.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 12[53] While nothing turns on this, Dr. Uddin’s employment with Azuma Foodsended in August 2008.3. The Company Policy Handbook[54] Mr. Kokuryo testified that the 28-page document entitled Azuma Foods(Canada) Co., Ltd. Company Policy Handbook (the“Handbook”) was given to all employees on December 28, 2005.[55] The Handbook has six general sections: Introductory Policies (ss. 1 and 2),Employment Policies and Practices (ss. 3-9), Standards of Conduct (ss. 10-14),Operations (ss. 15-21), Employee Benefits (ss. 22-30), and under Miscellaneous(s. 31) appears the Acknowledgement of Receipt form.2010 BCSC 502 (CanLII)[56] Under Introductory Policies, section 1 reads:1. INTRODUCTIONWelcome! As an employee of Azuma Foods (Canada) Co., Ltd. (hereinafter“AFCC” or “the Company”), we would like to formally welcome you to ourfamily and wish that your employment with AFCC is both rewarding andenjoyable.…AFCC looks forward to a mutually beneficial relationship with you, and willstrive to ensure its success through cooperation, communication, andcommitment.This Employee Handbook sets forth the terms and conditions of employmentof full- and part-time employees.[57] Section 2 reads in part:2. INTEGRATION CLAUSES AND RIGHT TO REVISEThis Employee Handbook contains the employment policies and practices ofAFCC in effect at the time of publication. All previously issued handbooks andany inconsistent policy statements or memoranda are superseded.AFCC reserves the right to revise, modifies, delete or add to any and allpolicies, procedures, work rules or benefits stated in this Handbook or in anyother document. However, any such changes must be in writing and must besigned by any Officer of the Company. Any written changes to this Handbookwill be distributed to all employees so that employees will be aware of thenew policies or procedures. …

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 13The Handbook sets forth the entire agreement between you and AFCC as tothe duration of the employment and the circumstances under whichemployment may be terminated.[58] Under section 3, Employment Classification, the following appears:The first ninety (90) days to one hundred eighty (180) days of continuousemployment with AFCC shall be considered a probationary period. …Azuma Foods reserves the right, at any time, with or without prior notice, toalter, change, or assign varied job responsibilities, reassign or transfer jobpositions.[59] Section 7 deals with overtime and provides that overtime hours must beapproved in advance.2010 BCSC 502 (CanLII)[60] Section 8 provides:8. REDUCTION IN WORKFORCEAt any time, the Company OR an Employee may terminate the employmentcontract upon giving the reasonable notice of the termination/resignation ofhis or her employment. Reasonable notice MUST be by giving written noticeas follows:(a) After three (3) months of continuous service, one (1) weeks notice;(b) After one (1) year of continuous service, two (2) weeks notice;(c) After three (3) years of continuous service, three (3) weeks notice;and(d) One (1) additional weeks notice for each year of completedemployment thereafter to a maximum of eight (8) weeks.[61] Section 9 deals with progressive discipline and provides:9. INVOLUNTARY/VOLUNTARY TERMINATIONAND PROGRESSIVE DISCIPLINEViolation of AFCC’s policies and rules may warrant disciplinary action. AFCChas established a system of progressive discipline that includes verbalwarnings, written warnings suspension up to and including dismissal. Thesystem is not formal, and AFCC may utilize whatever form is deemedappropriate under the circumstances in its sole discretion.[62] The relevant provisions of section 10, Standard of Conduct, read as follows:10. STANDARDS OF CONDUCTThe following is a list of conduct which is prohibited and will not be toleratedby the Company. This list is illustrative only; other types of conduct injuriousto security, personal safety, employee welfare and the company’s operationsmay also be prohibited and may amount to just cause for the dismissal of theemployee.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 14…10. Causing, creating or participating in a disruption of any kind duringworking hours on Company property.11. Insubordination, including but not limited to failure or refusal to obeythe lawful orders or instructions of a supervisor or a member ofmanagement, or the use of abusive or threatening language toward asupervisor or a member of management.…22. Violation of any safety, health, security, or Company policies, rules, orprocedures.23. Committing a fraudulent act or a breach of trust under anycircumstances.[63] Mr. Kokuryo testified that in January 2006, the month he began working atAzuma Foods, Mr. Inamura instructed him to collect the Acknowledgment of Receiptforms from a number of employees who had not signed and returned the form asrequired.2010 BCSC 502 (CanLII)[64] The Acknowledgment of Receipt form is in section 31 of the Handbook andreads:31. ACKNOWLEDGEMENT OF RECEIPTThis is to acknowledge that I have received a copy of the Azuma Foods(Canada) Co., Ltd. Employee Handbook and understand that it sets forth theterms and conditions of my employment as well as the rights, duties,responsibilities and obligations of employment with AFCC. I understand andagree with the provisions of the handbook.I understand that, any and all policies or practices can be changed at anytime by the company. The Company reserves the right to change my hours,wages, and working conditions at any time. I understand and agree that otherthan the Officers of the Company, no manager, supervisor or representativeof the company has the authority to enter any agreement, express or implied,for employment for any specific period of time, or to make any agreement foremployment other than at-will; only the Officers have the authority to makeany such agreement and then only in writing signed by an Officer.I understand and agree that nothing in the employee handbook creates or isintended to create a promise or representation of continued employment andthat my employment may be terminated at the will of either the Company ormyself in accordance with this Policy Handbook. My signature below certifiesthat I understand that the foregoing agreement on at-will status is the soleand entire agreement between the Company and myself concerning theduration of my employment and the circumstances under which myemployment may be terminated. It supersedes all prior agreementsunderstandings and representations concerning my employment with theCompany.Date Handbook Given to Employee:

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 15Employee SignatureDate Returned:Date Signed[65] Mr. Kokuryo reminded the employees at a meeting that they had to returntheir signed Acknowledgement forms. As time went on, there were one or twoemployees, including Ms. Nishina, who had not returned a signed Acknowledgmentform.[66] On July 11, 2006 Mr. Kokuryo spoke to Ms. Nishina about getting the signedform from her. Later that same day Mr. Kokuryo went to the QC room and askedMs. Nishina to sign the form, which she did.2010 BCSC 502 (CanLII)[67] Ms. Nishina testified that in June or July 2005, when she was still working inCalifornia, the “original Handbook” (which I presume meant either the original or anearlier version) was e-mailed to her by Mr. Miyamoto.[68] She testified that she delayed signing and returning the Acknowledgmentform to Mr. Kokuryo because those in executive management positions did thingscontrary to the Handbook—for example, smoking in the work place, and sexuallyharassing female employees—but the company either turned a blind eye or didnothing. Ms. Nishina testified that she signed the Acknowledgement becauseMr. Kokuryo asked her to sign it.D. THE INCIDENTS RELIED ON BY AZUMA FOODS AS ESTABLISHING CAUSE[69] The four incidents relied on by Azuma Foods as establishing cause fordismissal are as follows:1) the shouting incident of July 5, 2007;2) the refusal to attend the meeting with Mr. Inamura on August 9, 2007;3) sending documentation by e-mail to an outside address on October 12, 2007;and

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 164) removing documents on October 19, 2007.[70] During the course of the trial Azuma Foods also relied on Ms. Nishina takingphotographs of products with a company camera. In argument the companyconceded that doing so did not provide grounds for cause.[71] Until the shouting incident of July 5, 2007, the relationship between theparties appears to have gone well, or was at least uneventful.1. The Shouting Incident of July 5, 2007[72] As Production Manager, Mr. Miyamoto is responsible for preparing theproduction schedule which he testified he did two to three weeks in advance. Theschedule was maintained on the computer.2010 BCSC 502 (CanLII)[73] Mr. Miyamoto said that he knew about the CFIA regulations generally, but notin any detail.[74] One of the new products Azuma Foods was developing was black cod collarwith spicy sauce. By July 5, 2007 the CFIA had not approved the QMP plan for theproduct. Azuma could not lawfully produce the product before it was approved,although it could have a production test run.[75] On July 5, 2007 Ms. Nishina looked at the schedule and saw that that theproduction of black cod collar with spicy sauce was scheduled for July 17, 2007. Shewas concerned because the company could not yet lawfully produce that product.[76] Ms. Nishina went to see Mr. Miyamoto, whose office is in the general officearea. She told him that the black cod collar with spicy sauce had not been approvedby the CFIA and asked him to remove it from the production schedule. Mr. Miyamotorefused her request, and an argument began between them. The argumentescalated, as did their voices.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 17[77] The general office area (as I have indicated) is an open-office concept. Thereare several large desks or islands that are separated by partitions into individualoffice spaces.[78] Ms. Kiyomi, the accountant, sat across from Mr. Miyamoto. Ms. Kiyomi wason the telephone with Ms. Toshie Azuma, who was in California, at the time theargument occurred.[79] Ichiro Sugawara is the sales manager for Azuma. His desk is approximatelyfive to six metres from Mr. Miyamoto’s desk. He testified that he became aware of anargument when he suddenly heard Ms. Nishina’s loud voice. She was yelling. Hecould not see anything because of the partition, so he stood up and saw Ms. Nishinaarguing with Mr. Miyamoto. Mr. Sugawara cannot recall if he heard what they werearguing about.2010 BCSC 502 (CanLII)[80] Mr. Kokuryo said that he was either at his desk or another island talking tosomeone when he heard Ms. Nishina speak to Mr. Miyamoto in quite a loud voice.He could not hear what Mr. Miyamoto said in reply. Then Ms. Nishina’s voice grewlouder, she began shouting at Mr. Miyamoto, and Mr. Miyamoto began shoutingback at her. Mr. Kokuryo was unable to get a sense of what the argument wasabout, except that the initial words from Ms. Nishina to Mr. Miyamoto were thatsomething (he cannot remember what) “shouldn’t be scheduled”.[81] Mr. Kokuryo saw Ms. Kiyomi on the telephone, saw her get up from her desk,approach the two who were arguing, and then return to her desk. Ms. Nishina saidthat Ms. Kiyomi asked them to lower their voices, and that she apologized toMs. Kiyomi.[82] Ms. Nishina testified that she suggested to Mr. Miyamoto that they shouldcontinue their discussion in a meeting room, but Mr. Miyamoto insisted on remainingwhere he was. Their voices got louder and louder, until Ms. Kiyomi again askedthem to lower their voices.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 18[83] Ms. Nishina testified that she reminded Mr. Miyamoto that the company hadalready received a warning from the CFIA when they had produced products beforethe QMP plan had been approved, and that Mr. Louie kept reminding them not torepeat the same mistake. Ms. Nishina testified that Mr. Miyamoto refused to listen toher, complained that she was irresponsible, and said that if the company followedthe CFIA regulations they could not make new products or any money.[84] Their argument lasted about five minutes in the general office area beforethey went to a meeting room, where their argument continued. Ms. Nishina testifiedthat when she and Mr. Miyamoto were in the meeting room, Mr. Miyamoto—insteadof speaking respectfully to her—was disrespectful to her. He referred to her as“omae”, indicating a rank quite inferior to his.2010 BCSC 502 (CanLII)[85] When Ms. Nishina realized that no amount of arguing would convinceMr. Miyamoto to change his mind, she testified that she left the meeting room andspoke to Dr. Uddin, hoping that he could convince Mr. Miyamoto to change his mind.[86] Mr. Miyamoto testified that initially Ms. Nishina spoke to him in a normal tone,but then she got very excited, her voice became louder and she became moreemotional. Otherwise, he denies almost everything Ms. Nishina said occurred. Hesays he does not recall Ms. Nishina saying that production of black cod collar withspicy sauce had not received CFIA approval, and insists that all that was scheduledwas a production test run.[87] Mr. Miyamoto testified that after his argument with Ms. Nishina, he spoke toDr. Uddin, listened to what he had to say, and removed the product from theproduction schedule.[88] Mr. Kokuryo testified that after Mr. Miyamoto returned to his desk, he askedhim what the argument was about. Mr. Miyamoto replied that there was amisunderstanding about production scheduling.[89] I find that the argument would never have occurred if the schedule onlyshowed a production test run. Ms. Nishina’s contemporaneous notes support her

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 19assertion that the July 5, 2007 production schedule showed that black cod collar withspicy sauce was scheduled for production on July 17, 2007.[90] Mr. Miyamoto testified that he keeps all of the production schedules andagreed that he could have produced the schedule for July 5, 2007, but he did not doso. It may be that counsel did not ask Mr. Miyamoto to produce the schedule, butthat makes little difference: the July 5, 2007 schedule is relevant to the shoutingincident and should have been produced.[91] Mr. Kokuryo said that after he found out what the argument was about fromMr. Miyamoto, he quickly assembled the information so that he could report theincident to Mr. Inamura. Mr. Inamura was not in the office at the time of theargument. Counsel asked Mr. Kokuryo if there was any reason why he did not speakto Ms. Nishina to find out from her what had happened before he reported theincident to Mr. Inamura. He replied: “I don’t think I had a particular reason why orwhy not”.2010 BCSC 502 (CanLII)[92] However, Mr. Inamura learned about the shouting incident beforeMr. Kokuryo could report it. He testified that he was at the bank when he received acell phone call from Ms. Toshie Azuma in California. Mr. Inamura said thatMs. Azuma told him that Ms. Nishina had raised her voice.[93] Mr. Inamura said that he did not do anything immediately about the shoutingincident because he was waiting for apologies from Ms. Nishina and Mr. Miyamoto—each of them had a title in the company and their conduct in shouting was againstcompany policy.[94] Mr. Miyamoto received a verbal warning from Mr. Inamura and Ms. Azuma.The next morning, on July 8, Mr. Miyamoto apologized to those in attendance at thesecond morning greeting.[95] Ms. Nishina was present at the morning greeting but she did not apologize.She testified that she did not apologize because it was Mr. Miyamoto who startedtalking very loudly and both of them had apologized to Ms. Kiyomi for disturbing her.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 20[96] As Ms. Nishina had failed to apologize, Mr. Inamura instructed Mr. Kokuryo toprepare a written warning for her. Mr. Inamura testified that the reason for issuingthe written warning was not because Ms. Nishina failed to apologize to the company,but because she failed to apologize to those people in the office who were disturbedby the loud argument.[97] At a meeting between Mr. Inamura and Ms. Nishina on July 12, 2007, hegave her the following written warning dated July 9, 2007:WARNINGDATE: July 5, 2007 TIME: 10:00 am (approximate) Written WarningTO: Maki NishinaWarning: Causing, creating or participating in a disruption of any kind,during working hours on Company property(#10 of Section 10, Standards of Conduct of AFCC Employeehandbook)Incident: Employee was talking to Production Manager in office andbecame very heated. Employee engaged in shouting creatingdisturbance and discomfort for fellow employees and outsidepersons who were in contact with company at that time.Employee is cautioned not to engage in this type of behaviouragain, which may lead to further and escalating disciplinaryaction.Witnesses: Witnessed by managers, Ichiro Sugawara, Kiyomi Saito, BobKokuryo and employees Kenji Iwato, Akiko Kagawa andothers.“Kimi Inamura”Kimi Inamura, Vice PresidentJuly 9, 20072010 BCSC 502 (CanLII)[98] Mr. Kokuryo described himself as an observer at the July 12, 2007 meetingbetween Mr. Inamura and Ms. Nishina. His role was simply to observe the meetingand take minutes. The meeting took place in Japanese, but Mr. Kokuryo recordedthe minutes in English. The minutes read in part:Follow up to written warning, dated July 9, 2007, given to Maki NishinaJuly 12, 2007 7:00 – 8:00 pm Meeting RoomVice President Kimiyuki Inamura, Maki NishinaObserver: Bob Kokuryo, Administrative Manager

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 21Written warning given to Maki and accepted by her.She did state that the other party Takashi Miyamoto, ProductionManager had started it. VP stated that Takashi has been verballyreprimanded by VP and by Ms. Toshie Azuma, CFO and head ofAdministration for Azuma Foods Int’l USA (HQ). He has since apologizedindividually and in front of staff at the morning meeting.VP thought it was important to have Maki not just accept the writtenwarning, but have her understand the nature of her actions and howimportant it was to control such behaviour. He tried to explain the seriousnessof the nature of her actions, as well as to instruct her on what steps she couldtake in the future to avoid such behaviour. Maki has not shown any bit ofremorse, nor apologized[.][99] There was no evidence about the significance of an apology in Japaneseculture, or to Mr. Inamura or to the company, and neither party addressed the issue.The significance of an apology was clearly important following the July 5, 2007shouting incident.2010 BCSC 502 (CanLII)[100] What seemed important to Mr. Inamura was not so much who was right orwrong in the argument, but that Ms. Nishina and Mr. Miyamoto apologize becausethey disturbed not only their co-workers in the office, but also the telephonediscussion between Ms. Azuma and Ms. Kiyomi.[101] Much has been written about the significance and implications of an apologyin Japanese culture. Hiroshi Wagatsuma and Arthur Rosett canvassed differentapproaches to apologizing in Japan and the United States in their article, “TheImplications of Apology: Law and Culture in Japan and the United States” (1986) 20L. & Soc’y Rev. 461. They summarize the different approaches to apologizing inthese two cultures as follows (at 492):We said earlier that there are real differences in apologetic behaviour inJapan and the United States. We are even more confident that there aredifferences in the significance that is attached to such behaviour or to thefailure to apologize in each nation. Americans attach greater significance andlegal consequence to the perceptions of autonomy and internal coherence,thus making apology important as an expression of self. This leads apologeticbehaviour to be accompanied by a justification or emphasis on theacceptance of liability along with responsibility. The act of apology mustaccordingly spring from internal motivations, not from the request of externalauthority, and must not be weakened by mixed motives. In Western eyes,ambiguity and ambivalence detract heavily from the worth of an apology.Sincerity in an apology means internal coherence and wholeheartedness.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 22In contrast, the Japanese concept of apology attaches primary significance tothe act as an acknowledgement of group hierarchy and harmony. Lessconcern is expressed for paying the damages and more on repairing theinjured relationship between the parties and between the offending individualand the social order that has been disturbed. Sincerity therefore becomesless a function of the internal mental state of the person apologizing andmore a matter of performing the correct external acts that reaffirm submissionto that order. The presence of internal ambivalence is expected and acceptedas not threatening.[102] The Wagatsuma and Rosett article was the subject of John O. Haley’s“Comment: The Implications of Apology” (1986) 20 L. & Soc’y Rev. 499. Haleysummarizes the different approaches to apology as follows: “an apology istendered in Japan in contexts that are far more likely to elicit an excuse or selfjustificationin the United States” (500).2010 BCSC 502 (CanLII)[103] Since the 1980s, the significance of apology in Japanese culture hascontinued to receive much attention. In his recent article, “I’m Sorry: Exploring theReasons Behind the Differing Roles of Apology in American and Japanese CivilCases” (2008-2009) 14 Widener L. Rev. 185, Mitchell Stephens states that, unlikein the United States, in Japan an individual is “simply taught and expected toapologize” (203).2. The August 9, 2007 Meeting Incident[104] Azuma Foods contends that from July 12, 2007 onwards, as a result of thewritten warning, Ms. Nishina was on notice that “further transgressions of theCompany Policy Handbook could result in escalating action culminating in herdismissal”. However, on August 9, 2007, Azuma argues that Ms. Nishina“deliberately ignored a lawful order from Mr. Inamura to attend a meeting with him”.[105] Ms. Nishina was on vacation from July 13 to 29, 2007. She would havereturned to work on Monday, July 30, 2007.[106] One of the mandatory requirements of the CFIA and Fish InspectionRegulations is an internal audit of the QMP plan for processing fresh farmed Atlantic

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 23salmon. In 2006 Ms. Nishina decided that she would conduct that particular internalaudit in August 2007.[107] On August 8, 2007 she saw from the schedule that on the following day(August 9) there would be a shipment of fresh salmon fillets for processing.Ms. Nishina decided she would conduct the internal audit on August 9, 2007 startingat 9:00 a.m., which is when the factory workers begin working.[108] For some reason, which was neither explained nor contradicted, Ms. Nishinaknew up to a week in advance when shipments would arrive and processing wouldtake place, but with fresh salmon fillets, she had only very short notice. Thepurchasing department did not tell her when shipments would arrive and she couldonly learn by reviewing the schedule on the computer.2010 BCSC 502 (CanLII)[109] Around 4:00 p.m. on August 8 Ms. Nishina received an e-mail fromMr. Kokuryo indicating that Mr. Inamura wanted to meet with her at 10:00 a.m. thenext day (August 9).[110] At approximately 5:30 p.m. on August 8, Ms. Nishina told Mr. Kokuryo to tellMr. Inamara that because of work she had scheduled (the internal audit) she wasunable to attend the meeting.[111] Mr. Kokuryo testified that he relayed Ms. Nishina’s message to Mr. Inamuraand asked him what the meeting was about. Mr. Inamura told him that he wanted toclarify Ms. Nishina’s and Dr. Uddin’s roles in QC and they both concluded that themeeting should proceed.[112] Mr. Kokuryo testified that he sent another e-mail to Ms. Nishina stating thatthe meeting was very important, Mr. Inamura wanted to meet with her at 10:00 a.m.the next morning, and instructing her to be there. Ms. Nishina testified that she doesnot recall the e-mail, and it was not produced by Azuma Foods.[113] The next morning, after Ms. Nishina failed to attend the meeting withMr. Inamura at 10:00 a.m., Mr. Kokuryo went down to the factory floor where

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 24Ms. Nishina was working and reminded her of the meeting. He testified thatMs. Nishina was very polite, told him that she had work to do, and apologized.Mr. Kokuryo said that Ms. Nishina also said words to the effect that the companyhad already made its decision, she had tried to talk to the company many times, butthat no one listened to her. Mr. Kokuryo testified that he told Ms. Nishina that he didnot know the details, but that she could express her concerns at the meeting withMr. Inamura and he would record them. Ms. Nishina replied that expressing herviews at a meeting was useless and he could tell Mr. Inamura that. She also saidthat if he (meaning Mr. Inamura) did not like it, he could fire her.2010 BCSC 502 (CanLII)[114] Mr. Kokuryo said that he went back upstairs, told Mr. Inamura whatMs. Nishina had said, and that Mr. Inamura decided that he would go downstairsand talk to Ms. Nishina.[115] Ms. Nishina testified that when Mr. Inamura came down to the factory to tellher that he wanted to meet with her, she told him that she was busy with “salmonfillet production observation”, but that she could meet with him in the afternoon aftershe was finished with her work. If that was inconvenient for him, she could meet withhim another day. Ms. Nishina testified that Mr. Inamura seemed to think for amoment, and then replied that he had other matters scheduled for the afternoon andwould not be able to meet with her. Ms. Nishina testified that Mr. Inamura then leftthe factory floor and returned to his office.[116] Ms. Nishina testified that later that day, at 4:30 in the afternoon, she wasworking in the QC room when Mr. Inamura and Mr. Kokuryo came in. Mr. Inamurahanded Ms. Nishina a written warning for insubordination. Mr. Kokuryo handed herthe Notification of Appointment/Change form dated August 2, 2007 which providedthat as of September 1, 2007, her $250 monthly position fee would be eliminated.[117] The written warning reads:

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 25WARNINGDATE: August 9, 2007 TIME: 11:00 am Written WarningTO: Maki NishinaWarning: Insubordination, including, but not limited to failure or refusal toobey the lawful orders or instructions of a supervisor or amember of management, or the use of abusive or threateninglanguage toward a supervisor or a member of management.(#11 of Section 10, Standards of Conduct of AFCC Employeehandbook)Incident: Employee refuses to comply with repeated requests from VicePresident and Administrative manager to meet to discussissues related directly to her and company.Employee is strongly cautioned not to engage in this typeof behaviour again, which may lead to further andescalating disciplinary action.Witnesses: Witnessed by manager Bob Kokuryo“Kimi Inamura”Kimi Inamura, Vice PresidentAugust 9, 20072010 BCSC 502 (CanLII)[118] On cross-examination Ms. Nishina was adamant that she did not say she didnot want to attend the meeting. She testified that she told Mr. Inamura that she couldnot attend the meeting. She told him she was in the middle of observing the salmonfillet production, she already knew what he was going to tell her because she hadalready been told by Dr. Uddin, but she suggested she could meet with him later thatafternoon.[119] Mr. Inamura testified that on August 8, he asked Mr. Kokuryo to set up ameeting with Ms. Nishina but she refused to attend the meeting because she wastoo busy and could not spare the time. Mr. Inamura testified that he considered hermeeting with him was more important than what she was doing on the factory floor.Mr. Inamura knew that the factory had received a salmon shipment and thatMs. Nishina was observing the processing of the salmon.[120] Mr. Inamura testified that when he went down to the factory floor to speak toMs. Nishina he told her that he wanted to have a meeting with her to explain thatwith the hiring of Dr. Uddin, her role would be different. She replied that she had

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 26already heard everything from Dr. Uddin and there was no need to have a meeting.Mr. Inamura responded that it was not for Dr. Uddin to tell her and that he wantedher to be fully informed about the company’s plans.[121] Mr. Inamura testified that he issued the written warning because Ms. Nishinadid not obey his instructions to attend the meeting and refused to attend themeeting. He wanted her to know from him what her and Dr. Uddin’s roles would bein the future direction of the company. Dr. Uddin may have told her what his rolewould be, but what Dr. Uddin may have told her is not considered an “officialexplanation”.2010 BCSC 502 (CanLII)[122] Mr. Inamura said that when he handed the written warning to Ms. Nishina hetook the opportunity at that time to explain both her and Dr. Uddin’s roles in thecompany and that the plan was to have them both working in the QC department.[123] On cross-examination Mr. Inamura agreed that he insisted that the meetingbe at 10:00 a.m. because it was important. He also agreed that he met with her at4:30 p.m. because that was the only available time both he and Ms. Nishina had tomeet that day.[124] Ms. Nishina testified that she was surprised to receive the written warning.[125] Mr. Kokuryo testified that when Ms. Nishina received the warning she askedwhat it was for and Mr. Inamura said that it was for her refusal to meet with him.Ms. Nishina replied that they could have rescheduled the meeting.[126] Respect for hierarchy seems very important in Japanese culture, and in theworkplace culture at Azuma Foods. The conflict that flowed from Ms. Nishina’s“refusal” was not the result of the importance of the meeting’s timing, but ofMs. Nishina’s perceived lack of respect for hierarchy. In other words, holding themeeting later that day was not a major inconvenience to Mr. Inamura; rather,Ms. Nishina’s failure to show immediate obedience to her superior was somethingMr. Inamura saw fit to reprimand.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 27[127] Mr. Inamura’s answers from his examination for discovery indicate that he didnot understand the significance or importance of the salmon fillet annual internalaudit. The transcript also discloses the inherent difficulty in translating from onelanguage to another (at 55-60):QA…QA…QAQA…QAQA…QSo she said she couldn’t meet in the morning but she was notobjecting otherwise if I understand correctly. Correct?Why that time was not good for her wasn’t clear to me.But why does it have to be so clear why she’s busy in the morning?Don’t you trust her?The production schedule at that time was not anything new. She hadbeen dealing with it for over a time so I wondered why she had toattend to that when she had been dealt with before as a certain timeas that time.It seems like it’s been made into a big thing but it actually is a smallthing. In fact, I would say it seems like you’ve made it into a big thingbut it’s a small thing. Now, here was my question. My question wascould you not trust her when she said she was busy in the morning?If I have to answer yes or no my answer is no.Why not?The same production run through in the previous day and theprevious week but she was not attending to that production.Now, in her reply at paragraph 6, which refers to paragraph 23 andhence also 33 of your Statement of Defence, that she did have aquality management programme to conduct that morning, August 9.Do you know about that?No.Well, that’s what – okay. Well, you don’t know about it. Do you meanyou don’t know about the quality management programme?No.Now, I’m surprised because in paragraph 23 of your defence youwere giving an opinion about the urgency or requirement of Maki-Santo do the quality management – well, do the incoming fresh salmonwhich she says is quality management programme. My question ishow do you know that it’s not urgent?2010 BCSC 502 (CanLII)

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 28A So that particular work was not new. The same thing had been donebefore, and when the same thing were done before she was notattending so my understanding was that she didn’t need to be there.MR. VANDERKOOY: Yeah, but it’s annual. It’s an annual programme.That was the day of her annual programme, and the salmon had justcome in so she did need to do it. My question was that you – do younot defer to the quality control department on what is necessary fortheir job? Do you not defer? Do you not –THE INTERPRETER: Postpone you mean?MR. VANDERKOOY:Q No. Defer means you do not submit to, let them say rather than youtry to say, let them give the opinion of what is necessary, not you.A Of course, the quality control programme were left to the workersthere. But first someone comes in every day but if she had been therewhen the salmon came earlier she would know what she would haveto do but she wasn’t. So why only at that time she had to be there?2010 BCSC 502 (CanLII)3. Ms. Nishina’s Immigration Status and the Photographs (the Meeting ofSeptember 17, 2007)[128] At a meeting on September 17, 2007 between Ms. Nishina, Mr. Inamura, andMr. Kokuryo, Azuma Foods offered to assist Ms. Nishina in applying for a permanentresident card so that she could continue working for the company. Azuma Foodshad already extended Ms. Nishina’s work permit—it expired on August 13, 2008 andcould not be re-extended. Mr. Inamura wanted to know whether Ms. Nishina wantedto remain in Canada or return to Japan.[129] Mr. Kokuryo explained that by virtue of his role in the company, he wasinvolved in all of the employee applications for work permits and visas. The companyused a consulting firm and law firm for assistance in preparing many of theapplications, but Mr. Kokuryo has prepared some of the applications on his own.[130] At that time in September 2007, he estimated that an application forpermanent residence took approximately two years. If Ms. Nishina wanted to remainin Canada, the company would assist her with expediting her application forpermanent residence through the provincial nominee program (which would be farquicker than simply applying for a permanent resident card). The advantage of theprovincial nominee program is that an applicant can continue working in Canada

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 29while the application is being processed, and even if the work permit had expired, itcould be extended—meaning that Ms. Nishina could continue working for AzumaFoods beyond August 2008.[131] In direct examination Mr. Kokuryo was asked the following question: if anemployer supports an employee’s application for permanent residence through theprovincial nominee program, did that create an obligation? Mr. Kokuryo replied in theaffirmative. He said that a company which represents to the provincial agency that aparticular person is needed by the company (and the company wants to continueemploying this person), an obligation to continue to employ that person is created. Acompany cannot apply through the provincial nominee program and then suddenlysay “forget it, we do not want to employ this person”.2010 BCSC 502 (CanLII)[132] If Ms. Nishina accepted the offer of continued employment through theprovincial nominee program, Azuma Foods would have extended her work permitwhile the application for permanent residence was being processed. However, onceshe had her permanent resident card, Ms. Nishina would be free to work anywherein Canada and for anyone.[133] As matters stood, without permanent resident status, Ms. Nishina could workfor no other employer in Canada except Azuma Foods.[134] At the meeting on September 17, Ms. Nishina told Mr. Inamura that beforeshe made a decision she wanted more time to talk to her parents during her holidaysthe following month. However, Mr. Inamura told her that he would like a decisionfrom her by October 19, 2007.[135] At the same meeting Mr. Inamura questioned Ms. Nishina about thephotographs she had taken of the food products. While Azuma Foods raised thetaking of photographs as grounds for cause, it concedes that Ms. Nishina’s taking ofphotographs with a company camera did not amount to grounds for cause.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 304. The E-mail of October 12, 2007[136] Azuma Foods kept track of Ms. Nishina’s overtime hours at work. BetweenJanuary and August 2007 she averaged more than 30 hours of overtime eachmonth. Ms. Nishina testified that because the company complained if she workedtoo many overtime hours, she sometimes worked at home.[137] On October 11, 2007 Ms. Nishina saw an employee named Kiichiro (his jobtitle or position was not in evidence) packing boxes with product near the shippingarea. She had not been notified beforehand as she thought she ought to have been.She quickly jotted down some notes on a piece of paper or paper napkin, includingparticulars of the products, quickly typed it up, and sent the following e-mail to herthree personal e-mail addresses on October 12, 2007:2010 BCSC 502 (CanLII)AFCC/Kimi InamuraFrom: “Maki Nishina” To: ; ;Sent: Friday, October 12, 2007 12:08 PMAttach: Memo Oct. 11, 2007.docSubject: Emailing: Memo Oct. 11, 2007The message is ready to be sent with the following file or link attachments:Memo Oct. 11, 2007Note: To protect against computer viruses, e-mail programs may preventsending or receiving certain types of file attachments. Check your e-mailsecurity settings to determine how attachments are handled.[138] The attachment to the e-mail reads:October 11, 2007Area: Shipping Dock (near boxing area)Person: KiichiroDescription: According to Kiichiro, following items were shipped to ACFF fromAFI.These items would be used for samples for customers.Product Name AFI Lot# AFCCLot#Intem # Pack Date onoutside labelSeasoned Capelin Roe 16-0295-1 n/a 02435CAn July 27, 2005“Habanero”Seasoned Spicy Jellyfish“Ban-Ban”10854-2 1163 11612CAN July 25, 2005

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 31Frozen Squid for Frying 9969-R 1177 11598CAN Dec. 27, 2004Masago Caplein Roe16-0624-R n/a 82385CAN Oct. 25, 2006(Masago Natural)Shishamo Fry 120120-R 1509 11619CAN Apr. 17, 2006Squid Stuffed with Octopus 11678-R 1290 11610CAN Oct. 23, 2006Seasoend Capelin Roe 15-0294-R n/a 82432CAN June 27, 2006“Jalapeno”Mixed Vegetable Tempra 50322CAN June 12, 2006Unagi Kabayaki Sixze 45 13019-R 1912 53020CAN Dec. 12, 2006[139] Ms. Nishina changed the document format, corrected any errors, returned thecompleted document to her work address by e-mail, and deleted the October 12 e-mail.2010 BCSC 502 (CanLII)[140] Ms. Nishina testified that she made a typographical error when she sent here-mail to monkeyluck@gimail.com. That was likely the reason her e-mail to thataddress was returned undelivered.[141] The computer system at Azuma Foods is set up so that when an e-mail sentfrom the company is returned undelivered, the e-mail is sent to the departmentmanager’s inbox.[142] Mr. Miyamoto saw Ms. Nishina’s undelivered October 12, 2007 e-mail in hisinbox. He reported and forwarded the e-mail to Mr. Inamura who concluded thatinternal e-mail was being sent outside the company.[143] A meeting was held on October 19, 2007 between Ms. Nishina andMr. Inamura. Mr. Kokuryo was the observer or recorder and took notes. The meetingstarted at 5:15 p.m. and ended at 6:25 p.m.[144] Mr. Inamura asked Ms. Nishina if she had made a decision about thecompany’s offer to assist her in applying for permanent resident status. Ms. Nishinareplied that she wanted to discuss the issue with her parents in person when shereturned to Japan during her holidays.[145] Mr. Inamura then asked about the e-mail. Mr. Kokuryo’s notes of the meetingread in part:

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 32−−−−−−−−−−−VP asks her again why she would need to send this type of informationoutside.Maki states she states to work on it at home. That in the past, she hassent Quality Management Program (QMP) work / information home towork on it.VP states why she would do that.Maki states that she would be cautioned about too much overtime if sheworked on it at the office.VP asks what work would you do on the type of information / record thatyou sent out and if she did work on it, can he see what she did.Maki says she erased it.VP says she took it home to work on it and erased it. He asks how do weknow, she hasn't been able to explain. She has put suspicion on herselfby doing things like this. We will have to restrict what she can access. Heasks her what kind of job can she do if you cannot have access to acomputer. She has lost all credibility with the people here. How does sheexpect people to regain this trust. He says we can't lessen your wages,but we would like to have fair work compensation for that paid wage. Heasks what work would she be able to do if she cannot use a computer,have access to our recipes, company information, etc. The only otherpositions available are ones which involve physical work.Maki says she won't do that. I didn't come to Canada for that. She stateshe can fire her.VP states if we fire you, you will have a very difficult time finding work.Companies will ask for references and we will have to tell them why shewas fired. How does she think other companies will react. If we transferher to another department, other employees will ask why. How are we orshe going to explain it to them. She needs to understand theconsequences, risks of what she does. Even if the information sent outwas not top secret, she has created questions, doubts, credibility issues,etc on all the things she does. He states that if she needs to bringinformation, personal or otherwise, etc. out of the office, to say work on itat home, she needs to get prior approval, that it would be interpreted asa serious matter, especially in light of this. What else has she done? Hestates that it pains him to say it, but she has lost his trust. He asks whydid she first say she didn't do anything. Why does she think he wasworking so hard to create options for her. He had thought of theconsequences of her losing her job in this way and what would beavailable to her if she were fired. How is she going to survive.Realistically, would she be able to find a (comparable) job. It is obviousshe didn't consider this. Why are we going to the extent to try to assistyou. Does she have any thoughts on this.Maki remains silent.VP says we are not talking about the contents of information sent out,but the act of doing so. Her behaviour in the past of recording2010 BCSC 502 (CanLII)

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 33information, etc. was suspicious. She does not understand theconsequences of her actions. He had not planned on doing this, butgiven the actions and lack of explanations, etc. starting Monday, she willno longer be able to use the computer. She is to report to the packingsection and follow directions there. She is to only work from 8:30 am to5:30 pm.VP gives her written warning (Dated Oct. 12) to Maki.−−−−−−−−−−−−−−VP states that this warning is for the action she took in transferringinformation outside of the company. He states that it would be easier forhim if he just said not to come tomorrow. He asks her if she has anyopinions.Maki says if she says something, it would be used against her.VP asks if he can take that as an agreement.Maki says whatever she says or tries to explain will be twisted.VP says she does not think what she did was of great significance, buthe takes it very seriously. Maki says she does not agree.VP ask her if she does not agree, he needs to know why, what.Maki says it wasn't meant to be anything serious.VP asks her if she can think of another section besides packing.Maki says purchasing.VP says no because she would need to use a computer there. He statesthat at another company, an employee does the clean up. Would she dothat.Maki says no.VP asks why is the company having to go out of its way to findsomething for you. What other job is there that doesn't use a computer ordoesn't have access to company information. If there is somethingbesides packing (with the same wages as present), what is there. Healso states she has the option of using her vacation time to think aboutthings. What is her choice.Maki stays silent for a long period of time.VP states we cannot wait for such a long period of time, so let's just saythat Monday, she will start in the job he mentioned.− VP says 'otsukare sama desu'− Maki says 'otsukare sama desu'− Bob says otsukare sama desu.− 6:25 pm, Oct. 19, 2007[Emphasis added.]2010 BCSC 502 (CanLII)

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 34[146] Ms. Nishina generally agrees with the quoted portion of Mr. Kokuryo’s notes,but states that she did not recall being told she could not remove personal thingsfrom the office without prior approval. She does not recall Mr. Inamura stating thather behaviour in recording information in the past was suspicious.[147] The words “otsukare sama desu”, Mr. Kokuryo explained, are often used atAzuma Foods—especially when an employee is addressing a superior. Mr. Kokuryotranslated the phrase to mean “thank you for your efforts”, or literally, “you’re tireddue to your efforts”. It is a sign of mutual respect. Ms. Nishina’s interpretation of thephrase is similar.2010 BCSC 502 (CanLII)[148] The warning letter that Mr. Inamura handed to Ms. Nishina for sending theOctober 12, 2007 e-mail reads:WARNINGDATE: October 12, 2007 TIME: 12:08 pm Written WarningTO: Maki NishinaWarning: Violation of any safety, health, security, or Company policies,rules, or procedures.Committing a fraudulent act or a breach of trust under anycircumstances.Violation of non disclosure agreement(#22, #23 of Section 10, Standards of Conduct of AFCCEmployee handbook, Exhibit A, Non-Disclosure Agreement)Incident: Employee using electronic communication to send companyinformation to outside parties as per copy.Witnesses:“Kimi Inamura”Kimi Inamura, Vice PresidentOctober 19, 2007[149] Mr. Inamura testified that he gave the warning to Ms. Nishina because shefailed to explan why or where the e-mail was sent. He told Ms. Nishina that sheshould take her vacation starting the next day.[150] Counsel for Azuma Foods argues that Mr. Inamura said that the companyhad the usual concerns of any business regarding overtime and that there was no

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 35restriction on overtime as long as it was relevant to the employee’s work. However,that does not accord with my finding on the evidence.[151] In direct examination Mr. Inamura was asked if there was any concern aroundOctober 19, 2007 over employees claiming too much overtime. He replied in theaffirmative, stating that overtime had been a long-standing concern for the company.[152] Moreover, under section 6 of the Company Policy Handbook, overtime mustbe approved in advance (either verbally or in writing) by the department manager.[153] Mr. Kokuryo, who observed the October 19 meeting, testified that neitherMr. Inamura nor Ms. Nishina raised their voices but that the meeting was verystressful for both of them, and “obviously very stressful for her”.2010 BCSC 502 (CanLII)[154] There is no doubt in my mind that, although outwardly she may have showedher respect for Mr. Inamura, Ms. Nishina was extremely upset. She had beendemoted from QC supervisor to QC associate, and now—for sending an e-mail andattachment home so that she could work on it—she was being stripped of her role asQC associate, told she could no longer access a computer, and told to report to workas a factory worker or a janitor.[155] Mr. Inamura questioned Ms. Nishina about her actions (as was his right) andshe gave answers that he considered were either unacceptable or not a fullexplanation. Mr. Inamura told her that he did not believe her answers or herexplanation. Ms. Nishina remained silent. She had never been told that she neededprior approval in order to work from home.[156] Ms. Nishina testified that she felt like she was being falsely accused andbullied. She was trying to do her work but was being told—she believed—that shecould not do her work. She believed that in order to carry out her work, she neededto take photographs at times. Mr. Sugawara testified that he saw Ms. Nishina takephotographs of foreign material found in product manufactured in the factory.Mr. Inamura told her she could not take photographs and that it made others“suspicious” of her.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 36[157] Ms. Nishina returned to the QC office after the October 19 meeting.Mr. Inamura and Mr. Kokuryo went to see Mr. Miyamoto, told him that Ms. Nishinawould be applying to go on vacation, and that when she returned, she would beworking in the packing section.[158] Mr. Miyamoto approved Ms. Nishina’s vacation form providing that she wouldbe on vacation from Monday, October 22 to Friday November 9, 2007. FridayOctober 19, 2007 would be her last day of work until she returned from vacation inthe week of November 12.[159] Ms. Nishina never returned to work at Azuma Foods because she wasterminated after what occurred next.2010 BCSC 502 (CanLII)5. Removal of Documents on October 19, 2007[160] Ms. Nishina testified that after her meeting with Mr. Inamura she went back tothe QC room. She spoke briefly to Dr. Uddin about the meeting, told him that shewas taking vacation starting the following Monday, and that when she returned shewas to work as a janitor or in the packing department. She told him that because shewould likely be unable to return to the QC room, she had to remove some thingsfrom the room. She also gave him the details of where she could be contacted in theevent he needed information from her during her vacation. Ms. Nishina said thatwhile she was talking to Dr. Uddin she was putting together her belongings anditems she was removing and taking to her vehicle: her English dictionary, HACCPtextbook, documents she printed at home and at work from the CFIA website,papers on accounting that she brought with her from California, and other personalbelongings, including her shoes. She made two trips to her vehicle with what sheconsidered to be her possessions from the QC room.[161] Ms. Nishina testified that she deleted the documents in her own computer filebecause they would mean nothing to anyone else, and all of the completed files ordocuments were already in the G file which was left intact. She said that she wasquite upset after the meeting and accidentally turned her computer off. Ms. Nishina’s

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 37uncontradicted evidence is that her computer contained a data logger that wasconnected to the freezer to record the temperature of the freezer. There was,however, a separate device that continued to log the temperature even if hercomputer was turned off.[162] Mr. Miyamoto testified that after he signed Ms. Nishina’s vacation form, hewent to the QC room as a result of a telephone call from Dr. Uddin to say thatMs. Nishina was taking files out of the office or doing something on her computer.[163] Mr. Kokuryo said that within an hour after the meeting between Ms. Nishinaand Mr. Inamura, he received an intercom call from Mr. Miyamoto (who was in theQC room) asking him to attend. When Mr. Kokuryo arrived Mr. Miyamoto, Dr. Uddin,and a third person (whose identity he cannot recall) were present. Ms. Nishina hadalready left the premises.2010 BCSC 502 (CanLII)[164] Mr. Miyamoto asked Dr. Uddin (who did not testify) what he saw. Dr. Uddinreplied that he saw Ms. Nishina take some things, including some things from thefiling cabinet, and that he saw her make two trips to her vehicle.[165] Neither Mr. Miyamoto nor Mr. Kokuryo knew what had been in the filingcabinet.[166] Mr. Miyamoto and Mr. Kokuryo asked Mr. Inamura to attend the QC room. Hecame and was told what had happened.[167] Ichiro Sugawara was called to the QC room. Mr. Sugawara is the salesmanager for Azuma Foods. However, he also has a background in computertechnology and looks after information technology issues at Azuma Foods.[168] Mr. Sugawara logged into Ms. Nishina’s computer with the others in the roomlooking over his shoulder.[169] The computer system is set up such that there is a drive where eachdepartment has a folder: for example, the Production folder, and within theProduction folder, the QC folder (because QC is in the Production Department).

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 38Each employee within a department who has computer access has a working oruser folder that is only accessible by him or her. Any document that is not placed inthe department folder is placed in the employee’s working folder.[170] Using Ms. Nishina’s name and passwords, Mr. Sugawara found thatMs. Nishina’s working folder was empty. Her e-mail inbox, sent box, and deleted boxwere also empty.[171] During that week the computer backup system was not working and thedeleted documents could not be retrieved.2010 BCSC 502 (CanLII)6. Ms. Nishina’s Termination[172] Mr. Kokuryo asked his assistant Akiko Kagawa to determine the identities ofthe recipients of Ms. Nishina’s October 12 e-mail.[173] On October 23, 2007 Ms. Kagawa sent an e-mail to Ms. Nishina in Japanese.The English translation reads:Akiko KagawaFrom: “Akiko Kagawa” To: Sent: Tuesday, October 23, 2007 3:14 PMSubject: E-mail confirmationOtsukare sama desu (Japanese greeting meaning “Thank you for yourtrouble (or effort))As per Bob’s request, we would like to check to see if the e-mail addressesbelow are your own personal e-mail addresses.tillkid@yahoo.commonkeyluck@gimail.comSorry to bother you during your holidays, but if you could respond, e-mail isfine, it would be appreciated.Akiko KagawaAzuma Foods (Canada) Co., Ltd.[174] On October 25, 2007, Ms. Nishina and Ms. Kagawa met at a dinner.Ms. Nishina told Ms. Kagawa that the three e-mail addresses were indeed hers.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 39[175] On October 26, 2007 Ms. Nishina received the following termination letter bycourier:October 24, 2007Ms. Maki Nishina[address omitted]Dear Ms. Nishina:This letter serves to confirm our decision to terminate your employment withAzuma Foods today. You have received both written and verbal warningsconcerning your performance and actions, and in particular your unauthorizedremoval of confidential company documents and property. Despite meetingwith you and cautioning you not to remove anything further, includingpersonal property, from Azuma Foods' premises without permission, youwere observed on October 19, 2007 removing several folders and otherpaperwork belonging to Azuma Foods immediately after the meeting.These actions are in breach of the duty of confidentiality and good faith youowe to Azuma Foods, as well as the non-disclosure agreement, which formspart of your employment contract.Your Record of Employment and balance of your salary, including vacationpay, will be forwarded to you. Any payments due will be subject to the usualstatutory deductions.We would be pleased to arrange a time to meet with you so that you canremove any personal belongings. In the meantime please return immediatelyall company property which has been removed from Azuma Foods' premises.To avoid any further problems, you may not return to the company premiseswithout having first made an appointment to do so.Finally, we should remind you that notwithstanding the immediate terminationof your employment, you must not disclose any confidential information, asdefined in the non-disclosure agreement (copy enclosed), to any third partywithout company permission. Should it come to our attention that you havebreached this provision or intend to do so, legal action for an injunction toprevent such action and seeking damages against you and any relatedparties will be taken and pursued to the fullest extent of the law withoutfurther notice.Yours,“Kimiyuki Inamura”Kimiyuki Inamura / Vice President2010 BCSC 502 (CanLII)[176] Ms. Nishina was paid until October 19, 2007, and received nothing more.[177] On October 30, 2007 Ms. Nishina received (on her home computer) thefollowing e-mail from Mr. Kokuryo, which attached the letter of termination:

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 40termination letter Tuesday, October 30, 2007 11:57 AMFrom: “Human Resources” To: makidvc@hotmail.com, tillkid@yahoo.com, moneyluck@gimail.comTermination Letter.pdf (446KB)To Whom It May Concern,As per attached, please be advised that Ms. Maki Nishina is no longer withAzuma Foods.Please direct any queries to this department.Administration / Human ResourcesAzuma Foods (Canada) Co., Ltd.[178] At trial Ms. Nishina was visibly upset by Mr. Kokuryo’s October 30 e-mail. Shesaid that she felt she was being humiliated. Not only did they not believe the e-mailaddresses were her e-mail addresses, but even after terminating her employment,the company was continuing to bully her.2010 BCSC 502 (CanLII)[179] Mr. Kokuryo testified that during Ms. Nishina’s examination for discovery in2009, Mr. Inamura learned that Ms. Nishina had provided Ms. Kagawa with ananswer to her October 23 e-mail. As a result, Mr. Kokuryo spoke to Ms. Kagawa andconfirmed that she had been told by Ms. Nishina at the dinner in October 2007 thatthe three e-mail addresses were her personal e-mail addresses.[180] At trial Mr. Kokuryo testified that he regretted sending out the October 30 e-mail. He sincerely apologized to Ms. Nishina. He said that what he did was donewithout malice. He sent the letter in an effort to find out who the e-mail addressesbelonged to.[181] By letter dated April 15, 2009 from Mr. Grenier to Mr. Vanderkooy, a questionoutstanding from Mr. Inamura’s examination for discovery was answered as follows:With respect to the requests outstanding from Mr. Inamura’s Examination forDiscovery:1. Akiko Kagawa did not receive an e-mail response to her October 23,2007 e-mail. Ms. Kagawa did meet Ms. Nishina at a farewell dinnersome time after October 23, 2007 at which time Ms. Nishina advisedthat the e-mail from Ms. Kagawa had been transferred into her junkmail box, which is why she had not replied. It was at that eventMs. Nishina advised that the 3 e-mail addresses belonged to her.Ms. Kagawa did not relay this information to Azuma until January

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 412009 when she was asked about the e-mail pursuant to the requestmade. Ms. Kagawa cannot recall any further details as to the exactdate of the dinner.[182] In my view, it is interesting to note that after Ms. Nishina’s termination,Dr. Uddin continued to communicate with her by sending e-mails to her at all threee-mail addresses. He sought her assistance in locating files and documents; sheobligingly answered and told him where they could be found. Ms. Nishina repliedfrom two of the three e-mail addresses, and there is no evidence that the third e-mailaddress is used by anyone other than her, despite the company’s efforts to establishotherwise.2010 BCSC 502 (CanLII)[183] In response to the termination letter Ms. Nishina sent the following letter toAzuma Foods dated November 8, 2007:November 8, 2007Azuma Foods (Canada) Co., Ltd.11451 Twigg PlaceMitchell IslandRichmond, B.C. V6V 2Y2Dear Mr.Kimiyuki Inamura / Vice President,This letter responses the termination letter which dated on October 24, 2007,and was received on October 26, 2007.In the letter, you accused me of removing several folders and other paperwork belonging to Azuma Foods. However, the several folders and otherpaper work I removed from my desk and cabinet did not belong to AzumaFoods. They were personal documents and these were printed out fromwebsites for my references; such as CFIA, FDA, my notes and so on.Therefore, they are not confidential company documents and property; thesewebsites for public access.Folders and files belong to Azurna Foods are in a QMP cabinet, QMP binder,QMP file under the production folder in file or my email address ofOutlook. You can access them any time.Since you have accused me of removing confidential company documentsand property, could you kindly inform me of what documents and property areyou referring to? As I feel I have been wrongfully terminated from thecompany.Your response in this matter would be greatly appreciated.Sincerely,“Maki Nishina”

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 42PS; The following are some website I printed out and put in file folders for myreference;http://www.inspection.gc.ca/english /anima/fispoi/thitiee.shtmlhttp://www:safefood.net.au/content.cfin?sid=469http://www.cfsan.fda. ,gov/~comm/haccp4x4.html[184] Mr. Inamura responded by letter dated November 15, 2007:Nov. 15, 2007Dear Ms. Nishina:Re: Termination of Your Employment by Azuma Foods (Canada) Co. Ltd.I refer to your letter of November 8, 2007 with respect to the above captionedmatter. I confirm that Azuma Foods (Canada) Co., Ltd. has terminated youremployment and there will be no reconsideration of that decision.You will recall that at our meeting on October 19, 2007 we discussed, amongother things, the unauthorized e-mailing of company information by you tothird party e-mail accounts. As part of that discussion I cautioned you that infuture you should seek permission before removing any materials fromAzuma Foods's premises.Notwithstanding that warning, shortly after the meeting you were observedmaking two trips to your car carrying folders and other documents. Even if, asyou claim, these documents consisted entirely of information downloadedfrom websites accessible to the general public, this information was obtainedto assist with the performance of your job and as such you were paid by thecompany to gather this information. Azuma Foods takes the position thatsuch documentation is company property. Certainly there would be no needfor you to remove it from the company premises if all this information isreadily available via public websites.Further, after you left Azuma Food's premises on October 19th, it came to myattention that you erased the entire contents of your folder in the AzumaFoods computer system. The contents of the folder were compiled oncompany time for the benefit of the company. In light of the warnings you hadreceived about not taking actions which might be viewed as suspicious andharmful to Azuma Foods, your actions in deleting this folder show poorjudgment and lack of understanding of the very issues discussed onlyminutes before.Please ensure that all property belonging to Azuma Foods is returned aspreviously requested.Sincerely,“Kimiyuki Inamura”Kimiyuki Inamura, Vice PresidentAzuma Foods (Canada) Co., Ltd.2010 BCSC 502 (CanLII)

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 437. Post-Termination[185] Ms. Nishina has remained unemployed since her termination. Her socialinsurance card was tied to her employment at Azuma Foods and expired on thesame date as her work permit, August 13, 2008. She applied for employmentinsurance but learned that because her work permit restricted her to working forAzuma Foods, she did not qualify. She is supporting herself from savings and withthe help of friends.[186] Ms. Nishina placed her resume on an Internet job site. She also went to twojob interviews in November 2007, but because of her work permit, she was notqualified to work for any other employer.2010 BCSC 502 (CanLII)[187] Ms. Nishina’s provincial medical services plan coverage was also tied to herwork permit, and therefore her employment at Azuma Foods. Her eligibility expiredin August 2008.[188] Ms. Nishina began feeling stressed by the company’s “bullying” of her aroundMarch 2007, and began seeing a chiropractor for physical complaints sheexperienced as a result of her stress level. After her termination, she soughtacupuncture treatment because she was unable to sleep and suffered pain in herneck, shoulders, and back. She could not stop crying. She was prescribedamitriptyline for depression but found that the medication did not help.[189] Ms. Nishina has not returned to Japan since her dismissal. She said thatgiven her age it would be almost impossible for her to find a job there. She hasapplied for an extension to her visa in order to advance this action (which wascommenced in September 2008). Her visa expired in August 2009.ANALYSISA. THE LAW ON DISMISSAL FOR CAUSE[190] Generally, absent a fixed term contract or contractual notice provision, it is animplied term of the employment contract that an employer may dismiss an employee

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 44by giving the employee reasonable notice or pay in lieu of notice. If the employershows cause, the employee may be dismissed without notice or pay in lieu of notice:Ansari v. B.C. Hydro (1986), 2 B.C.L.R. (2d) 33 at 36 (S.C.), aff’d 55 B.C.L.R. (2d)xxxiii (C.A.)[191] In order to establish cause for dismissal without notice, the employer mustprove that the employee’s conduct, when viewed in all of the circumstances, wasseriously incompatible with his or her duties, and that the conduct went to the root ofthe employment relationship: Panton v. Everywoman’s Health Centre Society(1988), 2000 BCCA 621, 82 B.C.L.R. (3d) 364.2010 BCSC 502 (CanLII)[192] The approach to assessing whether the employee’s conduct provides causefor dismissal is objective – that is, the employer’s view that the conduct is sufficientto establish cause (or the employee’s view that it is not) is not determinative.However, the approach is also contextual: the court must consider “the particularcircumstances surrounding the employee’s behaviour … factors such as the natureand degree of the misconduct, and whether it violates the ‘essential conditions’ ofthe employment contract or breaches an employer’s faith in an employee” (McKinleyv. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, at para. 39). This approach balancesthe employer’s right to dismiss an employee for cause with the importance of boththe work and the manner of dismissal to an employee’s self-worth.[193] Mr. Justice Iacobucci, writing for the Supreme Court of Canada in McKinley,outlined the principle of proportionality that underlies the contextual approach (atparas. 53-54):[53] Underlying the approach I propose is the principle of proportionality.An effective balance must be struck between the severity of an employee’smisconduct and the sanction imposed. The importance of this balance isbetter understood by considering the sense of identity and self-worthindividuals frequently derive from their employment, a concept that wasexplored in Reference Re Public Service Employee Relations Act (Alta.),[1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p. 368:Work is one of the most fundamental aspects in a person's life,providing the individual with a means of financial support and,as importantly, a contributory role in society. A person's

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 45employment is an essential component of his or her sense ofidentity, self-worth and emotional well-being.This passage was subsequently cited with approval by this Court inMachtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at p. 1002, and inWallace, supra, at para. 95. In Wallace, the majority added to this notion bystating that not only is work itself fundamental to an individual's identity, but“the manner in which employment can be terminated is equally important”.[54] Given this recognition of the integral nature of work to the lives andidentities of individuals in our society, care must be taken in fashioning rulesand principles of law which would enable the employment relationship to beterminated without notice. The importance of this is underscored by thepower imbalance that this Court has recognized as ingrained in most facetsof the employment relationship. In Wallace, both the majority and dissentingopinions recognized that such relationships are typically characterized byunequal bargaining power, which places employees in a vulnerable positionvis-à-vis their employers. It was further acknowledged that such vulnerabilityremains in place, and becomes especially acute, at the time of dismissal.2010 BCSC 502 (CanLII)[194] In order to give effect to the principle of proportionality, the employer shouldfirst reasonably determine that the employee engaged in misconduct and then putthe nature of the misconduct into context to determine whether the conductirreparably harmed the employment relationship before relying on the misconduct asgrounds for cause.[195] In Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681, the defendantterminated the plaintiff without notice and alleged it had cause based oninsubordination: the plaintiff refused to follow direct instructions regarding thepreparation of a budget. In setting out the applicable legal principles, Madam JusticeWedge stated at paras. 276-83:A. The Law of Just Cause for Termination[276] In general, just cause is employee behaviour that, viewed in all thecircumstances, is seriously incompatible with the employee’s duties; it isconduct which goes to the root of the contract and fundamentally strikes atthe employment relationship: Panton v. Everywoman’s Health Centre Society(1988), 2000 BCCA 621 at para. 28, 82 B.C.L.R. (3d) 364.[277] Conduct amounting to insubordination sufficient to establish cause fordismissal was described half a century ago by Lord Evershed in the oft-citeddecision of Laws v. London Chronicle (Indicator Newspapers), Ltd., [1959] 2All E.R. 285 at 287 (Eng. C.A.):[S]ince a contract of service is but an example of contracts ingeneral, so that the general law of contract will be applicable, itfollows that, if summary dismissal is claimed to be justifiable,

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 46the question must be whether the conduct complained of issuch as to show the servant to have disregarded the essentialconditions of the contract of service. It is, no doubt, therefore,generally true that wilful disobedience of an order will justifysummary dismissal, since wilful disobedience of a lawful andreasonable order shows a disregard – a complete disregard –of a condition essential to the contract of service, namely, thecondition that the servant must obey the proper orders of themaster and that, unless he does so, the relationship is, so tospeak, struck at fundamentally[278] As noted in Laws, insubordination will not constitute cause unless theemployer establishes that the employee breached an “essential condition ofthe contract of service”. That may occur, said the Court in of Appeal inPanton at para. 33, where the employee has wilfully defied a “clear andunequivocal” instruction or refused “to carry out a policy or procedure wellknown by the employee to be central to the fulfillment of the employer’sobjectives”.[279] The Court in Panton also cited its earlier decision in Stein v. BritishColumbia (Housing Management Commission) (1992), 65 B.C.L.R. (2d)181,41 C.C.E.L. 213 (C.A.) where, after citing Laws, Southin J.A. said thefollowing at 4:I begin with the proposition that an employer has a right todetermine how his business shall be conducted. He may laydown any procedures he thinks advisable so long as they areneither contrary to law nor dishonest nor dangerous to thehealth of the employees and are within the ambit of the job forwhich any particular employee was hired. It is not for theemployee nor for the court to consider the wisdom of theprocedures. The employer is the boss and it is an essentialimplied term of every employment contract that, subject to thelimitations I have expressed, the employee must obey theorders given to him.[280] More recently, the Supreme Court of Canada in McKinley v. BC Tel,2001 SCC 38, [2001] 2 S.C.R. 161, considered whether, and in whatcircumstances, a single instance of employee misconduct will justifydismissal. The narrow issue in McKinley was whether an employer wasjustified in terminating an employee for a single act of dishonesty.[281] The Court concluded that in order to establish just cause based on anisolated incident of misconduct, the employer must demonstrate that theemployee has, by reason of the misconduct, repudiated the employmentcontract or one of its essential conditions. The Court said: “…[A]nemployee’s misconduct does not inherently justify dismissal without noticeunless it is ‘so grievous’ that it intimates the employee’s abandonment of theintention to remain part of the employment relationship”: McKinley atpara. 33.[282] The Court went on to say that in order to determine whetherrepudiation has occurred, both the circumstances surrounding the allegedmisconduct and the degree of misconduct must be carefully examined.2010 BCSC 502 (CanLII)

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 47Mr. Justice Iacobbuci, writing for the Court, described this analysis as “thecontextual approach” to just cause for termination of an employee. Thecontextual approach includes an examination of the category of misconductand its possible consequences, all of the circumstances surrounding themisconduct, the nature of the particular employment contract and the statusof the employee: McKinley at para. 33.[283] While the narrow issue in McKinley concerned employee theft, it hasbroader application as a result of the Court’s endorsement of the “contextualapproach” to the question of whether an employee has repudiated his or hercontract of employment. In each case, the nature of the alleged misconductand all of the relevant circumstances surrounding the misconduct must beconsidered. Further, as noted by the Court in McKinley, the contextualapproach leaves the trier of fact with discretion as to whether a particular actof misconduct necessarily gives rise to just cause.[196] It is permissible for an employer to add new grounds to justify dismissalwithout notice where those grounds existed at the time of dismissal but had not yetcome to the employer’s attention. If the employer was aware of the ‘new’ grounds atthe time of dismissal but did not rely on them, the employer will likely be consideredto have condoned the employee’s misconduct. Mr. Justice Ritchie, writing for theSupreme Court of Canada in Lake Ontario Portland Cement Co. Ltd. v. Groner,[1961] S.C.R. 553, approved of this concept of ‘after-acquired’ cause (at 563-564):2010 BCSC 502 (CanLII)The fact that the appellant did not know of the respondent’s dishonestconduct at the time when he was dismissed, and that it was first pleaded byway of an amendment to its defence at the trial does not, in my opinion,detract from its validity as a ground for dispensing with his services. The lawin this regard is accurately summarized in Halsbury’s Laws of England, 2nded., vol. 22, p. 155, where it is said:It is not necessary that the master, dismissing a servant forgood cause, should state the ground for such dismissal; and,provided good ground existed in fact, it is immaterial whetheror not it was known to the employer at the time of thedismissal. Justification of dismissal can accordingly be shownby proof of facts ascertained subsequently to the dismissal, oron grounds differing from those alleged at the time.[197] The B.C. courts have applied this concept many times. In Blomgren v. JinglePot Pub Ltd., 1999 BCCA 9, Mr. Justice Hall for the Court of Appeal described afteracquiredcause as follows:[8] It is clear, and has been clear since at least the year 1888, from theleading case of Boston Deep Sea Fishing Ice Co. v. Ansel (1888) 39 Ch. D.339, that it is permissible in this class of case for an employer/defendant torely upon after-the-fact-discovered conduct to justify a dismissal for cause. …

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 48It appears to me that, based on the case authorities that have been referredto in argument, including Stein v. British Columbia Housing and ManagementCommission, (1992) 65 B.C.L.R. (2d) 181, a judgment of this Court, the caseof Ansel, and as well the Supreme Court of Canada decision in Lake OntarioPortland Cement Co. v. Groner, (1961) S.C.R. 553, that the law justifies anemployer in acting upon information brought to the attention of the employerafter the dismissal, and can afford a proper basis upon which to uphold theright of an employer to dismiss an employee.B. THE ISSUES[198] Azuma Foods states in its argument that Ms. Nishina breached the policiescontained in the Company Policy Handbook on a number of occasions, leading todisciplinary action, and that the cumulative effect of the transgressions justified itsdecision to terminate her employment for cause.2010 BCSC 502 (CanLII)[199] In my view, there are two main issues that need to be determined:1) Were the policies contained in the Company Policy Handbook a term orcondition of Ms. Nishina’s employment contract?2) Was there cause to terminate Ms. Nishina’s employment?[200] If I conclude there was cause to terminate employment, that is the end of thematter. If I conclude otherwise, the third issue for determination is what damages arepayable to the plaintiff.1. Were the policies contained in the Company Policy Handbook a term or conditionof Ms. Nishina’s employment contract?[201] In Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200, [1984] 3W.W.R. 296 (S.C.), McLachlin J. (as she then was) dealt with a similar issue andstated at 205-06:The contract of employment arose when the plaintiff was hired by thedefendant. Several days later, on the day after she started work, thedefendant gave her a policy manual and asked her to read it. She did so.Such policy manuals are sometimes, although not always, found to containsome or all of the terms of employment. This depends on whether it isestablished on the facts of the case that the manual is a binding contractualdocument determining the legal rights and liabilities of the employer and theemployee.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 49[202] She reviewed various provisions of the policy manual and stated at 207-08:… [I]f the terms of the policy manual are to be binding, it must be concludedthat they have contractual force. The usual elements of a contract must beestablished: a concluded agreement, consideration, and contractual intention.The agreement consists in "an outward expression of common intention andof expectation": Anson's Law of Contract, 24th ed., p. 23. Inward concurrenceof intention is not enough for the formation of a contract; there must be anoutward manifestation of assent by each party such as to induce areasonable reliance in the other: S.T. Waddams, The Law of Contracts(1977), p. 18. Both offer and acceptance must be communicated by one partyto the other.The evidence in the case at bar does not establish that the parties expresseda common intention to be bound by the terms of the policy manual. The usualmethod of indicating assent to written documents is by signature; this was notdone. Nor was assent manifested by conduct. It may be that the defendant'sassent can be inferred from the act of giving the manual to the plaintiff. But,while the plaintiff may have privately accepted the terms of the manual, thereis no evidence that this acceptance was ever communicated by her to thedefendant. Communication of assent cannot be inferred from the fact that theplaintiff continued to work after being given the manual. She had contractedto work for the defendant prior to receiving the manual. The fact that shecontinued to fulfill this obligation after being given the manual cannot betaken as an assent to its terms.For similar reasons it may be questioned whether there was validconsideration for the promise the plaintiff is alleged to have made to bebound by the policy manual. Performance of an existing duty is noconsideration: Stilk v. Myrick (1809), 2 Camp. 317, 170 E.R. 1168 (N.P.);Swain v. West (Butchers) Ltd., [1936] 3 All E.R. 261 (C.A.). The defendant'sobligation to employ having arisen before delivery of the policy manual, itsperformance of that obligation cannot constitute consideration for any newterms imposed on the plaintiff by the manual.Finally, it may be doubted whether the parties intended that the policy manualshould constitute a binding legal contract between them. It is stated to be forthe purpose of acquainting employees with aspects of the defendant'shistory, policies, working conditions and employee benefits. Its tone, in largepart, is informational. Moreover, at p. 4 the manual expressly disclaims anypretension to comprehensiveness, stating that many aspects of employmentare not covered. The conduct of the parties with respect to the manual - inparticular the defendant's act of giving it to the plaintiff with the bareinstruction that she read it - supports the conclusion that it was intended asan informational guide, not a binding contract.For these reasons, I conclude that the policy manual is not a binding contract.It therefore falls to the court to determine the appropriate notice period.2010 BCSC 502 (CanLII)[203] Azuma Foods argues that Ms. Nishina was familiar with the Azuma FoodsInternational version of the Handbook because she had been employed there for

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 50over four years. However, I find there was no evidence that she was familiar withthat Handbook, and even if she was, there was no evidence that she agreed to bebound by its terms.[204] It is doubtful that some of the sections of the Handbook were intended tohave contractual force (such as section 1, Introduction) and some sections, includingsection 8 (Reduction in Workforce), may be contrary to the law. Section 8 providesfor reasonable notice as written notice equivalent to the minimum noticerequirements under the Employment Standards Act, R.S.B.C. 1996, c. 113. Thecommon law does not provide that reasonable notice is equivalent to the statutoryminimum notice requirements.2010 BCSC 502 (CanLII)[205] It is also doubtful that any employee freely negotiating a contract ofemployment would agree to a term or condition of his or her employment that AzumaFoods had “the right, at any time, with or without notice, to alter, change, or assignvaried job responsibilities, reassign or transfer job positions” (section 3) or “the rightto change my hours, wages, and working conditions at any time” (section 31).[206] Ms. Nishina signed the Acknowledgement of Receipt but she testified that shedid not agree with at least two of the policies in the Handbook. There is no doubt thatshe had no alternative but to sign the Acknowledgment because Mr. Inamurarequired that all of the employees sign the Acknowledgment. However, merelysigning the Acknowledgement is insufficient to give the Handbook contractual force.[207] Having concluded that the Company Policy Handbook does not havecontractual force, the next issue is whether there was cause to terminateMs. Nishina’s employment.2. Was there Cause to Terminate Ms. Nishina’s Employment?2.1 The Shouting Incident of July 5, 2007[208] Counsel for Azuma Foods argues that the written warning was issued notbecause Azuma Foods considered Ms. Nishina was wrong about the production of

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 51black cod collar with spicy sauce. It was issued because Ms. Nishina was wrong tovoice her disagreement with Mr. Miyamoto in an unacceptable manner in breach ofsection 10 of the Company Policy Handbook.[209] To Mr. Inamura, the issue was not whether either Ms. Nishina orMr. Miyamoto was right or wrong in the argument. It was wrong for them to havedisturbed their co-workers and to not apologize. Mr. Inamura would not have issuedthe warning to Ms. Nishina if she had apologized.[210] Ms. Nishina took the position that she was right and Mr. Inamura was wrong.She apologized to Ms. Kiyomi.2010 BCSC 502 (CanLII)[211] Ms. Nishina took the position that the company did not listen to her—she wasright. The black cod collar with spicy sauce should not have been scheduled forproduction and Mr. Inamura refused to listen to her. He listened, however, toDr. Uddin and removed the product from the production schedule.[212] It was wrong for Ms. Nishina to have raised her voice to Mr. Inamura. Butputting it at its worst, I find it was an error in judgment.[213] Ms. Nishina had reason to be upset and angry. The black cod collar withspicy sauce had not been approved for production but was scheduled for production,and Mr. Miyamoto refused to listen to her and remove it from the schedule.[214] I appreciate that from Mr. Inamura’s point of view, raising her voice, disturbingothers and not apologizing was a serious error on Ms. Nishina’s part. However, I amrequired to take a more objective and contextual approach to the circumstances,bearing in mind that the contract of employment and its termination must bedetermined not by Mr. Inamura’s subjective perspective, but by the law.[215] Was Ms. Nishina’s conduct in not apologizing conduct that goes to the root ofher employment contract and which is seriously incompatible with her duties to heremployer? I think not. It was Ms. Nishina’s effort in trying to carry out her duties toher employer—by ensuring that it complied with its legal obligation not to produce

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 52products until the CFIA had approved the QMP plan—that caused her to try toconvince her superior (Mr. Miyamoto) to remove the product from the productionschedule. When he would not agree or listen to her, the argument erupted.[216] Can it be said that Ms. Nishina’s failure to apologize is a breach of afundamental expressed or implied term of the employment contract? I think not.[217] I cannot find that the July 5 shouting incident can, on its own, amount tocause for dismissal without notice. I will, however, consider the incident along withthe others in determining whether the cumulative effect of the incidentsdemonstrates otherwise.2010 BCSC 502 (CanLII)2.2 The August 9, 2007 Meeting Incident[218] Azuma Foods contends that Ms. Nishina refused to obey Mr. Inamura’s lawfulorder to attend the meeting with him, and relies on the following passages fromAdams v. Fairmont Hotels, at paras. 279 and 293 to 295, where Madam JusticeWedge referred to Panton and Stein v. British Columbia (Housing ManagementCommission) (1992), 65 B.C.L.R. (2d) 181 (C.A.):[279] The Court in Panton also cited its earlier decision in Stein v. BritishColumbia (Housing Management Commission) (1992), 65 B.C.L.R. (2d) 181,41 C.C.E.L. 213 (C.A.) where, after citing Laws, Southin J.A. said thefollowing at 4:I begin with the proposition that an employer has a right todetermine how his business shall be conducted. He may laydown any procedures he thinks advisable so long as they areneither contrary to law nor dishonest nor dangerous to thehealth of the employees and are within the ambit of the job forwhich any particular employee was hired. It is not for theemployee nor for the court to consider the wisdom of theprocedures. The employer is the boss and it is an essentialimplied term of every employment contract that, subject to thelimitations I have expressed, the employee must obey theorders given to him.* * *[293] As observed by the Court of Appeal in Stein, an employer has theright to conduct its business in the manner it sees fit. It is not for theemployee - or the court - to debate the wisdom of the employer's policies or

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 53procedures so long as they are lawful and within the ambit of the employee'sjob.[294] Fairmont relied on the decision in Stein for the proposition that it wasnot open to Ms. Adams to question the wisdom or reasonableness ofFairmont's directions concerning the Hotel's budget. A budget is simply aforecast or prediction. In this case, it argued, Fairmont and Ms. Adams had adifference of opinion as to how the Hotel was going to perform the followingyear. Ms. Adams was entitled to her opinion, but where it differed from that ofher employer, she was required to defer to her employer. She refused todefer, and her refusal was insubordination. If the law permitted an employeeto act only on what she believes is reasonable, said Fairmont, theemployment relationship would completely unravel.[295] The decisions of our Court of Appeal in Stein and Panton make clearthat an essential implied term of the employment contract is that an employeewill follow lawful orders given by the employer, and that a breach of that termmay constitute repudiation of the contract and cause for summary dismissal. Iam in agreement with Fairmont's submission in that regard.2010 BCSC 502 (CanLII)[219] However, Stein cannot be said to stand for the proposition that disobeyingevery lawful order of an employer amounts to cause for dismissal. Madam JusticeSouthin (in that case) stated:[14] Mrs. Morley accepts that the law is as stated by Lord Evershed, M.R.in Laws v. London Chronicle (Indicator Newspapers) Ltd., [1959] 1 W.L.R.698, [1959] 2 All E.R. 285 at 287-88 (C.A.):To my mind, the proper conclusion to be drawn from thepassages which I have cited and the cases to which we werereferred is that, since a contract of service is but an example ofcontracts in general, so that the general law of contract will beapplicable, it follows that, if summary dismissal is claimed tobe justifiable, the question must be whether the conductcomplained of is such as to show the servant to havedisregarded the essential conditions of the contract of service.It is no doubt, therefore, generally true that wilful disobedienceof an order will justify summary dismissal, since wilfuldisobedience of a lawful and reasonable order shows adisregard – a complete disregard – of a condition essential tothe contract of service, namely, the condition that the servantmust obey the proper orders of the master and that, unless hedoes so, the relationship is, so to speak, struck atfundamentally…I think that it is not right to say that one act of disobedience, tojustify dismissal, must be of a grave and serious character. Ido, however, think (following the passages which I havealready cited) that one act of disobedience or misconduct canjustify dismissal only if it is of a nature which goes to show (ineffect) that the servant is repudiating the contract, or one of itsessential conditions; and for that reason, therefore, I think, that

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 54one finds in the passages which I have read that thedisobedience must at least have the quality that it is "wilful": itdoes (in other words) connote a deliberate flouting of theessential contractual conditions.* * *[17] I am unable to say with any degree of confidence that the learnedjudge did find on the whole of the evidence that the plaintiff had disregardedthe essential conditions of his service. …[18] Indeed, I am uneasy as to whether the learned judge correctlyinstructed himself on the law as set out in Laws v. London Chronicle.[19] Were I confident that he had so instructed himself and had found adisregard of the essential conditions of service, we would not need to gofurther into the matter nor indeed would it be proper to do so.[20] Not being so confident, I must turn to the thrust of counsel's secondand third alleged errors which in the circumstances of the uncertainty of thefindings can conveniently be put thus: Did the conduct of the plaintiff in failingto implement the point-score allocation system and, it follows, in failing tocause it to be used in the Vancouver Island regional office to assign housingshow a fundamental disregard of a condition essential to his contract ofservice, namely, the condition that he must obey the proper orders of themaster?[21] I begin with the proposition that an employer has a right to determinehow his business shall be conducted. He may lay down any procedures hethinks advisable so long as they are neither contrary to law nor dishonest nordangerous to the health of the employees and are within the ambit of the jobfor which any particular employee was hired. It is not for the employee nor forthe court to consider the wisdom of the procedures. The employer is the bossand it is an essential implied term of every employment contract that, subjectto the limitations I have expressed, the employee must obey the orders givento him.[22] It is not an answer for the employee to say: "I know you have laiddown a rule about this, that or the other, but I did not think that it wasimportant so I ignored it."[23] But it may be an answer, on the question of whether disobedience isrepudiatory, that the employer so conducted himself that the reasonable manwould conclude, and the employee did, in fact, conclude, that the employerconsidered the rule of little or no importance. For instance, if an employer hada rule that equipment was to be covered at the end of the day and the rulewas ignored by the employees to the knowledge of the employer, he couldhardly come to work one morning and discharge the lot for failing to obey therule.2010 BCSC 502 (CanLII)[220] In Stein the plaintiff was Regional Manager of the defendant on VancouverIsland. The purpose of the defendant was to provide public housing to those in need.The plaintiff was aware that housing was to be allocated on the basis of a written

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 55policy and procedure that implemented a point score system. The plaintiff knew hewas to implement the point score system but failed to do so. The Court of Appeal, indismissing his appeal from the trial judgment (dismissing his wrongful dismissalaction) found that the plaintiff had fundamentally disregarded an essential conditionof his contract of employment.[221] I cannot find that Ms. Nishina refused to attend the meeting with Mr. Inamura.The primary reason she did not attend the meeting was because it conflicted withher scheduled internal audit; she did not know when the audit could be rescheduledthat month. She was prepared to meet with Mr. Inamura at a time that wasconvenient to both of them. Mr. Inamura did not understand the significance of theinternal audit work that Ms. Nishina needed to complete.2010 BCSC 502 (CanLII)[222] There is no evidence to support the contention by Azuma Foods that an SQAplan from a supplier could have been substituted for an internal audit of the salmonfillets. They are two separate requirements.[223] I cannot find that this incident alone justifies termination for cause withoutnotice.2.3 The E-mail of October 12, 2007[224] I find that Ms. Nishina sent an e-mail from work to her three personal e-mailaddresses. While it might seem odd for Ms. Nishina to send an e-mail to herself atthree different addresses, that is what she did.[225] I conclude on all of the evidence that Ms. Nishina sent an e-mail to herselfthat noted particulars of what she observed and what she considered was importantin carrying out her role as QC associate. I also conclude that Ms. Nishina sent adocument to herself so that she could work on it from home.[226] I cannot conclude that by sending the e-mail to herself she disregarded afundamental or essential term of her contract of employment such that Azuma Foodswas entitled to terminate her employment for cause.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 562.4 Removal of Documents on October 19, 2007[227] Azuma Foods argues that Ms. Nishina deleted documents and e-mailsrelevant to the steps taken in product development up to the grant of CFIA approval,and that therefore it has lost the benefit of recommendations and tests undertaken inobtaining that approval.[228] There was no evidence that Azuma Foods required Ms. Nishina to providerecommendations and perform tests (there was no evidence of what thoserecommendations and tests might have been), or that it has suffered any loss as aresult.2010 BCSC 502 (CanLII)[229] Azuma Foods provided no evidence to satisfy me that Ms. Nishina removedany confidential documents. Except for Ms. Nishina’s working folder, Azuma Foodsprovided no evidence that it been unable to locate any files or documents it neededin order to conduct its business.[230] Mr. Oikawa was asked in cross-examination (by counsel for Azuma Foods)whether he ever told Mr. Inamura that the wrong QMP plan had been submitted, andall he could recall was recommending that the company maintain only one copy of aQMP plan in only one binder.[231] Mr. Louie, in cross-examination by counsel for Azuma Foods, could not recallany problem with missing documents related to any QMP plan during the November2007 CFIA audit.[232] There was no evidence that Dr. Uddin encountered any difficulties performinghis duties as QC supervisor as a result of any documents that had been deleted byMs. Nishina. The correspondence shows otherwise: Dr. Uddin wrote to Ms. Nishinawhen he had difficulty locating documents or files, and she replied telling him wherethe documents and files could be located.[233] Ms. Nishina was understandably distraught that she had been accused ofwrongdoing when she sent an e-mail to herself so that she could work at home

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 57without resorting to overtime hours at work, demoted (indeed, constructivelydismissed) from the position of QC supervisor to factory worker, and told that shecould no longer access a computer. Any reasonable person would be distraught,upset, and angry. She deleted from her computer all of the documents in herpersonal folder, but left intact all of the documents and files Azuma Foods needed tocarry out its statutory and regulatory obligations.[234] I cannot conclude that Ms. Nishina can be faulted for deleting her computerfiles, or that what she did justifies dismissal for cause.2.5 After-Acquired Cause: Ms. Nishina’s Alleged Deception2010 BCSC 502 (CanLII)[235] After Ms. Nishina’s termination, Azuma Foods learned (from her directexamination at trial) in September 2007 she had made an application for permanentresident status. She testified that she did so because she felt that the company wasbullying her and she wanted to do it on her own. She testified that her applicationwas rejected largely because her termination caused her to lose ten points, whichresulted in her having an insufficient score.[236] In closing argument, Azuma Foods described Ms. Nishina as “deceptive”because she told Mr. Inamura that she wanted to discuss the application forpermanent resident status with her parents, when in truth she had already made theapplication herself. Azuma Foods says this “deception” provides a basis to dismissMs. Nishina for cause.[237] I reject that submission for two reasons. First, I doubt that Ms. Nishina’sstatement could be considered deceptive so as to provide cause for terminationwithout notice. Second, even if Ms. Nishina’s actions could be characterized asdeceptive, Azuma Foods cannot rely on this argument when it did not put the matterto Ms. Nishina in cross-examination.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 582.6 Cumulative Effect of the Incidents Alleged to Establish Cause[238] Azuma Foods argues that while each of the four incidents taken separatelymay not justify dismissal, the cumulative effect of the incidents—including mattersdiscovered by the employer after termination that disclose a “revelation ofcharacter”—establish cause for dismissal: Ma v. Canadian Trust Co. Ltd. (1985), 9C.C.E.L. 300 (S.C.).[239] In my view, the facts in Ma are clearly distinguishable and the incidents werefar more serious. In that case the plaintiff was the vice-president of finance for thecompany. His lack of interpersonal skills offended everyone with whom he worked.His conduct included sexual harassment, telling dirty jokes, reducing subordinates totears, giving little credit to anyone, public ridicule, loud and abusive language, andtemper tantrums. After his termination the employer learned that he had improperlyused petty cash, and concocted a scheme to subvert company policies which hewas employed to enforce. The Court found that that scheme alone was sufficient tojustify termination for breach of his fiduciary duty to the company. However, what isimportant is that during his employment, he was constantly warned that his conductand relationship with employees and other vice-presidents had to improve or that hisemployment would come to an end.2010 BCSC 502 (CanLII)[240] Mr. Justice Locke (as he then was) stated at 312-13:At p.159 that learned Judge quotes a previous case with approval which saysthat:"...particularly at the executive level of employment, the courtshould be cautious in the determination of what is 'properlyrequired' by an employer of its employee..."and in that learned Judge's view was especially so in cases where there wasno clear and unequivocable evidence that the employee was warned of hisshortcomings and that his performance must improve or his services beterminated and that he clearly understood this to be the situation: which wasa situation he found existed in that case.On the other hand and decided earlier but not referred to in the Pirelli case isanother decision of the Ontario High Court by Mr. Justice Steele: Fonceca v.McDonnell Douglas Can. Ltd. (1983), 1 C.C.E.L. 51 where at p. 57 thatlearned Judge said:

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 59"Clearly, an employer is entitled to dismiss an employee whohas been warned from time to time that he has anincompatible personality conflict but refuses or is unable toimprove or correct his relationships and similar incidents occurlater. Where the incidents complained of are trivial, butannoying, then warnings are necessary before termination forcause is justified. However, where incidents, each inthemselves, are serious, even though not sufficient to justifydismissal at the time, then a warning is not essential. In thepresent case, though no written or oral warning was given, anyreasonable person having had three union grievances filedagainst him and having been told consistently by his employerto try to work and co-operate with people, should know that ifsuch conduct continued he would be liable to dismissal."All in all, it is a question of fairness. Was the employee apprised sufficientlyso that if he had a fair opportunity to correct his defaults? In my opinion hewas and in my opinion Ma has also told a falsehood: he said that he wasaway from the office on March 23 and never had any conversation with Kingas King alleges when he called him to account and told him to improve hisconduct. I accept King's evidence against that of Ma: I also accept King'sevidence that throughout the previous years and particularly the lattermonths, when almost he alone was supporting Ma as an employee, that he,while probably not spelling out every single defect, was continually making itclear to Ma that which he had to do to become successful in the company.For Ma to say that he knew nothing at all about his alleged defaults is in myopinion mere nonsense.2010 BCSC 502 (CanLII)[241] I do not find the Ma decision of any assistance to Azuma Foods’ defence. Thecumulative effect of the incidents raised by Azuma Foods is insufficient to establishcause for dismissal.[242] I therefore conclude that Ms. Nishina was wrongfully dismissed. The nextissue for determination is damages for wrongful dismissal.3. Damages[243] Ms. Nishina claims under four heads of damages: damages in lieu ofreasonable notice, damages for bad faith or mental distress, punitive damagesbased on breach of fiduciary duty, and damages for loss of fringe benefits.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 603.1 Damages in Lieu of Reasonable Notice[244] When an employer fails to provide an employee with reasonable notice oftermination, that employer must pay the employee monetary damages measured bythe employee’s wages during what would have been the period of reasonable notice.The factors that courts use to assess the period of reasonable notice were set out byMr. Justice McRuer, then Chief Justice of the Ontario High Court of Justice, inBardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 at 145 (Ont. H.C.J.):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.2010 BCSC 502 (CanLII)[245] In Ansari, Chief Justice McEachern applied the Bardal factors, andsummarized the rationale for awarding damages in lieu of reasonable notice asfollows (at 41):I wish to emphasize that an employer has considerable advantages andresponsibilities in connection with the question of employment. He selects theemployees; he plans future strategy, or he should; he controls operations;and he must take responsibility for the success or failure of the undertaking.In the absence of a specific contract, the employer is not required to continuethe employment of any employee. All the employer is required to do is givereasonable notice of termination and in such cases he need offer noseparation package.[246] Ms. Nishina argues that the appropriate period of reasonable notice is at least12 months, and based on the following cases, that a notice period of 18 months isappropriate:a) Kinsey v. SPX Canada Inc. (1994), 2 C.C.E.L. (2d) 66 (B.C.S.C.): thedismissed employee was 43, worked as an area manager, had providedseven years of service, and was awarded 12 months’ notice.b) Spooner v. Ridley Terminals Inc. (1991), 39 C.C.E.L. 65 (B.C.S.C.): thedismissed employee was 52, worked as a human resources manager, had

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 61provided seven and one-half years of service, and was awarded 12 months’notice.c) Black v. FCA International Ltd. (1989), 27 C.C.E.L. 277 (B.C.S.C.): thedismissed employee was 35, worked as a branch manager, had providedseven years of service, and was awarded 12 months’ notice.d) Ceci v. Comdisco Canada Ltd. (1994), 6 C.C.E.L. (2d) 86 (B.C.S.C.): thedismissed employee was 42, worked as a regional marketing manager, hadprovided almost seven years of service, and was awarded 12 months’ notice.2010 BCSC 502 (CanLII)e) Leith v. Rosen Fuels Ltd. (1984), 5 C.C.E.L. 184 (Ont. H.C.J.): the dismissedemployee was 38, worked as an office manager, had provided four and onehalfyears of service, and was awarded nine months’ notice.f) Whelehan v. Laidlaw Environmental Services Ltd. (1998), 55 B.C.L.R. (3d)129 (S.C.): the dismissed employee was 32, worked as an operationsmanager (considered upper-middle management, if not senior management),had provided five years of service, and was awarded eight months’ notice.g) Elms v. Hywel Jones Architect Ltd. (1997), 29 C.C.E.L. (2d) 69 (B.C.S.C.):the dismissed employee was 43, worked as a senior architectural technician,had provided six years and three months of service, and was awarded eightmonths’ notice.[247] Azuma Foods contends that the period of reasonable notice should bebetween three and five months, as it says is reflected in the following two cases:a) Card v. Emjac Screw Products Ltd. (1994), 4 C.C.E.L. (2d) 155 (Ont. C.J.(Gen. Div.)): the dismissed employee was 34, worked as a QC inspector, hadprovided five and one-quarter years of service, and was awarded fourmonths’ notice.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 62b) Jones v. Patriot Forge Co., [2009] O.J. No. 294 (S.C.J.): the dismissedemployee was 44, worked as a labourer and machinist, had provided five andone-half years of service, and was awarded three months’ notice.[248] Neither party cited Major v. Phillips Electronics Ltd., 2005 BCCA 170. In thatcase, the plaintiff had worked in India for the defendant for almost seven years, andthen came to work for the defendant in Richmond. The plaintiff was 50 years old andheld a senior management position that carried considerable responsibility; however,after about six months working in Richmond, he was terminated without cause orreasonable notice. He had a difficult time mitigating his losses following terminationbecause his work permit allowed him to work only for that specific employer. TheCourt of Appeal upheld the trial judge’s award of twelve months’ wages in lieu ofreasonable notice.2010 BCSC 502 (CanLII)[249] I will consider each of the Bardal criteria in turn:(a)The character of the employmentDuring her employment at Azuma Foods International, from June 2001 toAugust 2005, Ms. Nishina first worked as an accounting assistant, and thenmoved to the QC department. During her employment at Azuma Foods, fromAugust 2005 to October 2007, Ms. Nishina worked as QC supervisor untilshortly before the termination of her employment, when her title changed tothat of QC associate. Ms. Nishina’s role in the QC department at AzumaFoods—to ensure that the company met the standards set out in food safetyregulations—was essential to the company’s operation. She held a position ofconsiderable importance within the company.(b)The length of service of the employeeMs. Nishina worked for Azuma Foods International and Azuma Foods for atotal of six years and four and one-half months. This is not a negligible periodof time.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 63(c)The age of the employeeAt the time of dismissal in October 2007, Ms. Nishina was 43 years of age.(d)The availability of similar employment, having regard to theexperience, training and qualifications of the employeeAt the time of dismissal, Ms. Nishina had been trained and had worked as aQC supervisor for several years. However, her immigration status in Canadawas tied to her employment with Azuma Foods, such that she could not workfor another employer. This set of circumstances seems almost akin to thesituation where an employee is dismissed in a one-employer town. That is, anemployee, though qualified and experienced, faces a dearth of alternateemployment prospects. This factor weighs heavily in favour of a longer noticeperiod. Azuma Foods knew when it dismissed Ms. Nishina that she could notwork for another employer.2010 BCSC 502 (CanLII)[250] Having considered these factors, I conclude that the appropriate period forreasonable notice in this case is 12 months. Ms. Nishina claims that her overallannual income (including her average overtime hours) is equivalent to $52,148.Azuma Foods did not contest this measure of Ms. Nishina’s salary. Therefore, thismeasure of Ms. Nishina’s annual salary is the amount to which she is entitled asdamages in lieu of 12 months’ reasonable notice.3.2 Damages for Bad Faith / Mental Distress[251] Ms. Nishina claims that Azuma Foods dismissed her in bad faith, and seeks$25,000 in damages for mental distress. The bad faith she alleges is based on whatMr. Tamura told her: if she worked in Canada for two or three years, she couldreturn to California and he would help her apply for a green card. She argues thatpromise was a term of her contract of employment.[252] I do not find whatever Mr. Tamura may have said amounted to a contractualterm. However, I do find that Azuma Foods breached its obligation to act in goodfaith when dismissing Ms. Nishina: the company ought to have known that the

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 64manner of dismissal was unduly insensitive, especially given its knowledge thattermination would cause Ms. Nishina grave difficulties. Although I have concludedthat Ms. Nishina is not entitled to damages for mental distress, Azuma Foods’breach of its implied obligation to act in good faith in the manner of dismissal formsthe basis for an award of punitive damages, which I will discuss next.[253] In Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, theSupreme Court of Canada signalled a change in the law regarding damages fordismissal in bad faith and resultant mental distress. The Court directed a return tothe principles laid out in Hadley v. Baxendale (1854), [1843-1860] All E.R. Rep. 461:at the time the contract was made, could the employer have reasonably foreseenthat if it dismissed the employee in the manner that it did, that the employee wouldsuffer mental distress? Rather than awarding damages for bad faith dismissal andresultant mental distress as an extension of the period of reasonable notice (as thecourts had done following Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R.701), an employee who can show that her mental suffering was both foreseeable bythe employer and is caused by the manner of dismissal will receive damages as aseparate lump sum. Mr. Justice Bastarache, for the majority, summarized theapproach at paras. 55-57:2010 BCSC 502 (CanLII)[55] Thus, in cases where parties have contemplated at the time of thecontract that a breach in certain circumstances would cause the plaintiffmental distress, the plaintiff is entitled to recover (Fidler, at para. 42; Vorvis,at p. 1102). This principle was reaffirmed in para. 54 of Fidler, where theCourt recognized that the Hadley rule explains the extended notice period inWallace:It follows that there is only one rule by which compensatorydamages for breach of contract should be assessed: the rulein Hadley v. Baxendale. The Hadley test unites all forms ofcontractual damages under a single principle. It explains whydamages may be awarded where an object of the contract isto secure a psychological benefit, just as they may be awardedwhere an object of the contract is to secure a material one. Italso explains why an extended period of notice may havebeen awarded upon wrongful dismissal in employment law:see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R.701. In all cases, these results are based on what was in thereasonable contemplation of the parties at the time of contractformation. [Emphasis deleted.]

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 65[56] We must therefore begin by asking what was contemplated by theparties at the time of the formation of the contract, or, as stated in para. 44 ofFidler: “[W]hat did the contract promise?” The contract of employment is, byits very terms, subject to cancellation on notice or subject to payment ofdamages in lieu of notice without regard to the ordinary psychological impactof that decision. At the time the contract was formed, there would notordinarily be contemplation of psychological damage resulting from thedismissal since the dismissal is a clear legal possibility. The normal distressand hurt feelings resulting from dismissal are not compensable.[57] Damages resulting from the manner of dismissal must then beavailable only if they result from the circumstances described in Wallace,namely where the employer engages in conduct during the course ofdismissal that is “unfair or is in bad faith by being, for example, untruthful,misleading or unduly insensitive” (para. 98).[254] Ms. Nishina had suffered back and shoulder pain, and difficulty sleepingbefore her termination. After her termination, she had increased difficulty sleeping,and cried almost every day. Her doctor diagnosed her with “likely depression” andprescribed an anti-depressant medication, which she took for a brief time. In closingsubmissions, counsel for Ms. Nishina noted that her symptoms “continued for awhile” after that.2010 BCSC 502 (CanLII)[255] The grounds put forward by Azuma Foods as establishing cause fordismissing Ms. Nishina without notice were weak; the company’s response toMs. Nishina’s conduct was out of proportion with her actions. Azuma Foods’ conductduring its termination of Ms. Nishina’s employment showed a lack of good faith andfair dealing, which I will explain in the next section of these reasons. However, Icannot say that its conduct grounds an award of aggravated damages: althoughMs. Nishina was clearly distressed, the evidence did not establish that she sufferedquantifiable mental distress (or that it was caused by the manner of dismissal ratherthan the dismissal itself) to ground an award of aggravated damages.3.3 Punitive Damages[256] Ms. Nishina claims punitive damages based on Azuma Foods’ breach offiduciary duty. She argues that Azuma Foods owed a fiduciary duty to her becauseher ability to remain in Canada (or previously, the United States) depended on her

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 66continued employment with the company, and because it knew that she could notwork for any other employer in Canada.[257] The Supreme Court of Canada recently clarified the law on fiduciary duty inGalambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247. Mr. Justice Cromwellemphasized that a fiduciary relationship is based on a vulnerability that arises fromthe relationship, not from external factors (para. 68); and that the fiduciary“undertakes [whether expressly or impliedly] to act in the interests of the other party”(para. 69). Simply because a relationship involves a disparity in power does notmean that the more powerful party will automatically assume the role of a fiduciary(para. 74). On top of nature of the relationship and the undertaking to act in the otherparty’s best interests, the fiduciary must have “a discretionary power to affect theother party’s legal or practical interests” (para. 83).2010 BCSC 502 (CanLII)[258] Ms. Nishina also relies on Mustaji v. Tijn (1996), 25 B.C.L.R. (3d) 220 (C.A.),which Cromwell J. described in Galambos v. Perez as follows (at para. 56):… Mustaji involved a claim by a nanny brought to Canada under the ForeignDomestic Movement Program. There were findings of fact that thedefendants had taken over her affairs concerning her immigration andemployment in Canada, that they had the opportunity to exercise power ordiscretion over her, were capable of using that power or discretion without herknowledge or consent so as to affect her legal and practical interests and thatshe was especially vulnerable to that exercise of discretion and control:[citations omitted].[259] I cannot find that a fiduciary relationship existed between Azuma Foods andMs. Nishina. Although Ms. Nishina’s immigration status in Canada was tied to heremployment with Azuma Foods, her employer did not exercise control over thatstatus in a way similar to the employer in Mustaji. Ms. Nishina’s dismissal carries theunfortunate consequence of her being unable to work for another employer;however, Azuma Foods had not “taken over her affairs”.[260] Although I decline to award punitive damages based on breach of fiduciaryduty because I have not found such a duty to exist here, punitive damages shouldbe awarded against Azuma Foods based on its failure to uphold its impliedobligation of good faith and fair dealing in the manner of dismissal.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 67[261] In Honda v. Keays, the Supreme Court of Canada considered the narrowissue of whether punitive damages could be grounded in a breach of human rightslegislation, but confirmed that Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1S.C.R. 595, remains the leading case on punitive damages. In Whiten, the SupremeCourt of Canada clarified that the independent actionable wrong necessary toground punitive damages may be established not only by a tort, but also by breachof a separate contractual provision or other obligation. Wallace confirmed anemployer’s obligation of good faith in the manner of dismissal; this obligation carriedthrough in Honda v. Keays, though now damages to compensate for bad faith indismissal are awarded as a separate lump sum rather than as an extension of theperiod of reasonable notice. Following Honda, bad faith dismissal is capable ofgrounding a cause of action in damages, not just an additional factor to beconsidered under another head of damages.2010 BCSC 502 (CanLII)[262] The obligation of good faith in the manner of dismissal imposes a behaviouralrequirement on employers to investigate allegations of misconduct, give employeesthe opportunity to respond, and requires employers not to fabricate grounds forcause, maintain unfounded allegations of cause, or treat an employee in ahumiliating manner: as summarized by Judy Fudge in “The Limits of Good Faith inthe Contract of Employment: From Addis to Vorvis to Wallace and Back Again?”(2007), 32 Queen’s L.J. 529.[263] Mr. Justice Iacobucci described the content of the obligation as follows inWallace, at para. 98:[98] The obligation of good faith and fair dealing is incapable of precisedefinition. However, at a minimum, I believe that in the course of dismissalemployers ought to be candid, reasonable, honest and forthright with theiremployees and should refrain from engaging in conduct that is unfair or is inbad faith by being, for example, untruthful, misleading or unduly insensitive.[264] Not only did Azuma Foods fail to adequately establish that there was cause toterminate Ms. Nishina’s employment without notice, it failed to adequatelyinvestigate each of the incidents it relies on to establish cause. It rarely occurred toMs. Nishina’s employer to ask her about the instances of alleged misconduct; when

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 68it did ask, it discounted what seemed to be reasonable explanations, preferringinstead to view her as disrespectful, untrustworthy, or guilty. Azuma Foods’response and sanction to the instances of Ms. Nishina’s alleged misconduct was outof any reasonable, objective sense of proportion. Azuma Foods’ conduct at the pointof termination reveals a shocking disregard for Ms. Nishina’s vulnerability as anemployee, and shows a significant lack of good faith.[265] At the meeting of October 19, 2007, Mr. Inamura drew exaggeratedconclusions regarding Ms. Nishina’s e-mail to herself: he said she had lost allcredibility, brought suspicion on herself, lost trust, implied that her work was notworth the wage she received, questioned “what else had she done?”, and said thatshe could no longer have access to a computer at work. He then constructivelydismissed her by reassigning her as a janitor or factory worker and pressured her toaccept the demotion by stating that she would not be able to find another job andimplying that she would not receive a good reference from Azuma Foods.Mr. Inamura treated her silence as acceptance and demoted her to work in thepacking section, despite her statements that she feared whatever she said wouldonly be twisted and used against her. Mr. Kokuryo reported that the meeting was“obviously very stressful for her”. Azuma Foods failed to follow up with Ms. Kagawato determine whether the other e-mail addresses were indeed Ms. Nishina’s before itdecided it had cause to terminate her employment. Although Mr. Kokuryo said hesent the October 30, 2007 e-mail in order to discover the owners of the e-mailaccounts, given his assumption that the accounts belonged to people other thanMs. Nishina, in his mind he was sending Ms. Nishina’s letter of termination to thirdparties.2010 BCSC 502 (CanLII)[266] Azuma Foods never asked Ms. Nishina what items she removed from heroffice area or what files she deleted from her computer; rather, it jumped to theconclusion that she removed or destroyed company property.[267] All the while, Azuma Foods was well aware that Ms. Nishina’s immigrationstatus made her particularly vulnerable—indeed, Mr. Inamura used that fact to

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 69pressure her into accepting a demotion. Azuma Foods knew or ought to have knownthat dismissing Ms. Nishina for cause meant that not only could she not work inCanada or the United States, but also that she would be ineligible for employment ormedical insurance. There must be a balance between the severity of her actions andthe sanctions imposed. Indeed, some have referred to termination for cause as the‘capital punishment’ for breaching the employment relationship.[268] Unlike damages in lieu of reasonable notice or aggravated damages formental distress, which are compensatory in nature, punitive damages “are restrictedto advertent wrongful acts that are ... deserving of punishment on their own”: Hondaat para. 62. In Whiten, the Court reviewed the award of punitive damages byconsidering whether it was a rational response to the misconduct at issue—that is,whether it was proportionate to the defendant’s blameworthiness, the plaintiff’svulnerability, the harm caused, and to the need for deterrence (among other factors).Mr. Justice Binnie writing for the majority noted that while an insurer has the right toinvestigate and exercise caution, “[t]here is a difference between due diligence andwilful tunnel vision” (para. 103). Similarly, in the case at bar, Azuma Foods wasentitled to investigate the allegations of misconduct it harboured against Ms. Nishina,but what it was not entitled to do was to simply assume she was wrong and thenassert that it had grounds for dismissal for cause.2010 BCSC 502 (CanLII)[269] In all of the circumstances, I am satisfied that an award of punitive damagesin the amount of $20,000 is warranted.3.4 Damages for Loss of Fringe Benefits[270] Ms. Nishina is entitled to be compensated for the expenses she incurredduring the period of reasonable notice which would otherwise have been included asfringe benefits of her employment at Azuma Foods. Ms. Nishina made to the MedicalServices Plan three payments of $162 and one of $54, and paid for her ownprescription drugs ($41.42), for a total of $581.42. Counsel should be able todetermine the amounts which would have been covered under the fringe benefitsduring the notice period.

Nishina v. Azuma Foods (Canada) Co., Ltd. Page 70SUMMARY[271] In addition to the loss of fringe benefits, Ms. Nishina is entitled to:1) damages in lieuof 12 months’ salary: $52,1482) punitivedamages: $20,000Total: $72,148[272] Ms. Nishina is also entitled to her costs in the action.2010 BCSC 502 (CanLII)“Loo J.”

• Date: 20100318• File: 566-34-1977• Citation: 2010 PSLRB 40Public ServiceLabour Relations ActBETWEENPAUL OUELLETGrievorandBefore an adjudicator2010 PSLRB 40 (CanLII)CANADA REVENUE AGENCYEmployerIndexed asOuellet v. Canada Revenue AgencyIn the matter of an individual grievance referred to adjudicationBefore: Michel Paquette, adjudicatorREASONS FOR DECISIONFor the Grievor: Guylaine Bourbeau, Public Service Alliance of CanadaFor the Employer: Karl Chemsi, counselHeard at Moncton, New Brunswick,September 1 and 2, 2009, and at Ottawa, Ontario, October 15, 2009.(PSLRB Translation)I. Individual grievance referred to adjudication1 Paul Ouellet, the grievor, filed a grievance on December 12, 2006, alleging thefollowing:[Translation]…

I am filing a grievance because my employer, the Canada Revenue Agency (CRA), isdiscriminating against me on the grounds of a mental disability, a deficiency and age,contrary to the provisions of clause 19.01 of my collective agreement and the provisionsof sections 3 and 7 of the Canadian Human Rights Act(CHRA).In addition, my employer refuses to make reasonable accommodations that would allowme to return to work at the CRA, ensure my livelihood, resume rewarding professionalactivities and make a positive contribution to the community.2 Mr. Ouellet seeks the following corrective action:[Translation]…2010 PSLRB 40 (CanLII)That my employer cease all discrimination against me by taking, in particular, thefollowing measures:…• Facilitate my access to the necessary psychotherapy treatments, providedby a therapist of my choice, by assisting me financially to that end untilmy return to work or until I am declared permanently unfit for a positionat the CRA;• Comply with the return-to-work plan and accommodations as negotiatedwith my union representative and me at the appropriate time based on therecommendations and suggestions of the health professionals legitimatelyinvolved or as modified by them from time to time;• Apply no pressure for and make no allusion to my retirement before themandatory retirement age under applicable legislation;• Cease, and do not engage in future, any deliberate, malicious or stallingtactics that would force me to withdraw from my professional activitieswith the CRA and the federal public service with the sole purpose ofshielding me from a state of poverty or ensuring that I have a viablelivelihood;• That my employer pay me the monetary equivalent of lost income sufferedsince July 2005 as moral damages for my suffering since September 2003;• That my employer pay me $50 000 as exemplary damages for thesuffering, prejudice and affronts to my dignity as a human being and mystatus as an employee.…3 The employer dismissed the grievance at every level of the grievance process. On April25, 2008, Mr. Ouellet referred the grievance to adjudication before the Public ServiceLabour Relations Board.

4 It should be noted that notice was given to the Canadian Human Rights Commission(CHRC) about the allegations of discrimination. The CHRC declined to participate inthese proceedings.II. Summary of the evidence5 Dr. Jacques-A. Frigault and Mr. Ouellet testified for the complainant. Paula Harder,Service Canada Project Manager in Ottawa, was the director of human resources atHuman Resources Development Canada (HRDC) in New Brunswick during the relevantperiod. Phélice Cormier, Senior Program Officer with the Canada Revenue Agency(CRA) in Moncton, held management positions with National Collection Services, whichreported to Human Resources and Social Development Canada (HRSDC) until December2003, to Social Development Canada (SDC) from December 2003 to August 2005, andfinally to the CRA beginning in August 2005. Ms. Cormier and Tony Manconi, a directorat the CRA since 2005, testified for the employer.2010 PSLRB 40 (CanLII)6 The facts of the grievance are complex, and the versions of them differ somewhat. Iwill relate only the most relevant elements and indicate when there is a divergence.7 Mr. Ouellet held several positions at the HRDC in Moncton between September 1971and April 2002. Following a sexual harassment complaint made in August 1996, aninvestigation and a mediation led to a settlement in 1998. Some of the stipulations of theagreement were that it was without prejudice to the parties and that it would be keptconfidential.8 The grievor was assigned to a PM-01 position with the Canada Pension Plan fromFebruary 1998 to February 2001. Management then decided not to renew the assignment,deeming his performance unsatisfactory. Mr. Ouellet maintained that his performancewas satisfactory and that he wanted to continue his assignment.9 In May 2001, he was assigned to a CR-05 position while retaining his PM-01 salary. Asa result of what management considered performance issues, meetings were held in early2002. Mr. Ouellet felt that his new duties were not challenging and that they were notreflective of his competencies. At a meeting on February 21, 2002, Mr. Ouellet’s unionrepresentative, who accompanied him, informed management that Mr. Ouellet sufferedfrom post-traumatic stress disorder and that he required accommodation.10 A meeting was held in April 2002. Subsequent discussions led the parties to agree inSeptember 2002 that, to better understand Mr. Ouellet’s limitations and special needs, heshould undergo a functional and occupational assessment but that he should first undergoa psychosocial assessment. The parties also agreed that the complainant would remain athome on leave with pay as of April 2002 and that the department would cover the costsof the psychotherapist chosen by Mr. Ouellet, Dr. Frigault. Mr. Ouellet chose him forspiritual and religious reasons. Dr. Frigault is a doctor of psychology and not a physicianand is not registered with any professional body in Canada. His office is in Fredericton, athree-hour drive from the patient’s home in Moncton. The department agreed to

eimburse the grievor’s travel and accommodation expenses when he was required to goto Fredericton for his treatments. Dr. Frigault was to inform the department after thepsychosocial assessment if he recommended psychotherapy and in addition:1) If he recommended psychotherapy, how many sessions would be required? Whatwould be the length of treatment, and would Mr. Ouellet be fit to work during thetherapy?2) If he did not recommend psychotherapy, what would he recommend as the nextsteps to take?3) Whether or not psychotherapy took place, when would the appropriate time be tomove forward with the functional and professional assessment (Exhibit E-1)?11 In November 2002, following the preliminary psychosocial assessment, Dr. Frigaultrecommended that Mr. Ouellet follow 15 to 20 sessions of psychotherapy and that heremain on paid leave during the treatment (Exhibit G-2).2010 PSLRB 40 (CanLII)12 In February 2003, Dr. Frigault reported to the department, informing it that he hadconducted a functional and occupational assessment, that Mr. Ouellet was fit to return towork but that he would have to continue therapy. He stressed that a return-to-work planwas needed. His contract for therapy was extended. On May 27, 2003, he proposed thefollowing six-step return-to-work plan:1) resolve the outstanding grievances and complaints;2) identify a position for Mr. Ouellet’s return to work — he wanted to be officiallyappointed to the PM-01 position with the Canada Pension Plan;3) prepare the employee for the identified position, including individualized training;4) prepare the work environment, namely, superiors and colleagues;5) assess the return to work after between two and six months; and6) gradually return the employee to work.The employee would continue his therapy (Exhibit G-3).13 Management agreed to extend the psychotherapy with Dr. Frigault but asked him toconfirm that the grievor was fit to return to work (Exhibit G-5). Dr. Frigault did so inwriting on July 2, 2003 (Exhibit G-7).14 A meeting was scheduled for August 27, 2003 to discuss Mr. Ouellet’s return to work.Mr. Ouellet, his union representative and Dr. Frigault attended along with Ms. Harderand a human resources officer for management. The meeting did not go well, and Dr.

Frigault departed. The meeting continued without him but ended without achieving itspurpose — Mr. Ouellet’s return to work.15 Dr. Frigault wrote to the regional director on September 3, 2003, commenting on theAugust 27 meeting. He complained about the attitudes of the employer’s representativestoward Mr. Ouellet and the quality of the union’s representation. However, he expressedhis desire to continue to be a resource person for Mr. Ouellet’s return to work (Exhibit G-8).16 Louise Branch, Regional Chief Executive, replied to Dr. Frigault on November 4,2003. She informed him that, since Mr. Ouellet’s functional and occupational assessmentwas complete and he was found fit to return to work, Dr. Frigault’s involvement in thereturn to work was not required. Additionally, since Mr. Ouellet was fit to work, theemployer was no longer required to pay for his psychotherapy treatments. Mr. Ouelletcould use the benefits provided under his health care plan if he wished to continue hispsychotherapy (Exhibit E-9).2010 PSLRB 40 (CanLII)17 Mr. Ouellet contacted the Sun Life insurance company to determine whether he couldcontinue his psychotherapy with Dr. Frigault. He was entitled to 10 sessions annually, buttravel and accommodation expenses would not be covered. He did not have any financialresources, so he did not continue therapy. However, he communicated with Dr. Frigaultfrom time to time. He confirmed under cross-examination that he did not try to findanother psychotherapist in Moncton.18 The department called another meeting in November 2003 to discuss Mr. Ouellet’sreturn to work with him and his union representative. He was offered a position as apayment officer at the CR-05 group and level, while retaining his PM-01 salary. Hereplied in a November 26, 2003 letter stating that accepting the offer would not result in asuccessful return to work since he would be required to work under the supervision ofsomeone whom he considered hostile. Management did not agree with that opinionbecause he had never worked under that manager.19 Mr. Ouellet’s work unit was transferred from the HRSDC to the SDC in December2003. It meant that the labour relations responsibilities shifted from the region toheadquarters in Ottawa, which may have delayed the handling of the file.20 Mr. Ouellet made a complaint with the CHRC on August 25, 2004, alleging that hisemployer was not accommodating him for a mental disability by refusing to reintegratehim, contrary to the advice of the psychologist hired by the employer itself. Aninvestigation report was submitted in September 2005, and the complaint was dismissedin January 2006. The application for judicial review was dismissed in December 2006(2006 FC 1541).21 The employer attempted to contact Mr. Ouellet in fall 2004 to discuss a new return-toworkstrategy and to ask him to undergo an assessment of his fitness to work with HealthCanada’s Workplace Health and Public Safety Programme (WHPSP). Mr. Ouellet

efused the assessment because the employer had Dr. Frigault’s assessment of February2003. The employer also learned at the same time that the complainant had made acomplaint with the CHRC. Therefore, it decided not to aggravate an already complicatedsituation and did not attempt to contact Mr. Ouellet again until the complaint wasresolved (Exhibit E-4).22 The employer wrote to Mr. Ouellet in April 2005, and again asked him to undergo aWHPSP assessment so that it could determine the appropriate accommodations to enablehim to return to work (Exhibit E-14). The complainant responded that the employeralready had Dr. Frigault’s February 2003 assessment. If it simply wished to update theassessment of his functional and occupational capabilities, he was prepared to return toDr. Frigault (Exhibit E-14).23 The employer called a meeting on June 23, 2005 to assign Mr. Ouellet to a collectionofficer position, his substantive PM-01 position, as of July 11, 2005 (Exhibit E-14). Afterthe meeting, the union representative wrote to the employer, requesting that Mr. Ouelletbe appointed somewhere other than the same environment in which he had been harassedin the past to ensure a better return to work since Mr. Ouellet was very stressed about theidea of returning to his former unit (Exhibit E-15). Dr. Frigault also wrote to managementand suggested following the return-to-work plan proposed in May 2003 rather thanappointing Mr. Ouellet to his former position (Exhibit G-9).2010 PSLRB 40 (CanLII)24 Mr. Ouellet did not show up for work on July 11. He was deemed to be on sick leave.He provided a medical certificate to that effect (Exhibit E-6), but the certificate from Dr.Melanson, his family physician, did not provide reasons or a return-to-work date.However, it did mention that Dr. Frigault’s instructions should be followed (Exhibit E-17).25 On August 8, 2005, the employer again asked Mr. Ouellet to undergo an assessmentby Health Canada’s WHPSP about his fitness to work (Exhibit E-20).26 Mr. Ouellet replied to the employer on September 9, 2005, refusing to undergo theHealth Canada assessment but suggesting that the questions submitted to the WHPSP besubmitted to Dr. Frigault and Dr. Melanson and that the findings be discussed to identifythe necessary and possible accommodations. He also asked for financial assistance tomeet with Dr. Frigault as was done in the past (Exhibit E-21).27 The Manager replied to Mr. Ouellet on September 22, 2005, again mentioning thecontradictory information, which led him to request the WHPSP assessment and to raisethe possibility of taking administrative action if he refused (Exhibit E-22). Thecomplainant responded on October 4, 2005, claiming that, despite the fact that he stillquestioned the value of undergoing an assessment, he would agree to his doctors and theWHPSP exchanging information and to proceeding with a WHPSP assessment only withan adequate explanation of the reasons or if he were so ordered (Exhibit E-23). TheDirector wrote to Mr. Ouellet on November 24, 2005, reiterating the reasons for theassessment and indicating that, if Mr. Ouellet refused, the Director would recommend his

dismissal for incapacity based on the medical information available to the employer(Exhibit E-24).28 Mr. Ouellet submitted a disability insurance claim in October 2005 to Sun Life. Afteran initial denial, the application was approved retroactively in March 2007 (Exhibit E-2).He received benefits until November 2007.29 On December 4, 2005, Mr. Ouellet signed the consent forms for the WHPSPassessment, and the assessment request was sent to Health Canada on December 22, 2005(Exhibit E-25). However, the grievor withdrew his consent to provide medicalinformation on February 1, 2006 (Exhibit E-26).30 Dr. Mayrand assessed him in February 2006 and concluded that Mr. Ouellet was notfit to work. He required psychotherapy. The prognosis was that he would be unable toreturn to work in the near future or even in the medium term. Given his age, it wasperhaps appropriate to consider a pre-retirement plan (Exhibit G-11). That informationwas not shared with the employer. On April 5, 2006, Health Canada notified theemployer that the grievor was not fit to return to work and would not be until he hadundergone a long period of therapy with a specialist (Exhibit E-27).2010 PSLRB 40 (CanLII)31 Therefore, on May 11, 2006, the employer extended Mr. Ouellet’s unpaid sick leavefor 12 months (Exhibit E-28).32 Mr. Ouellet retired in November 2007 despite his desire to return to work.III. Summary of the argumentsA. For the grievor33 Mr. Ouellet’s representative argued that Mr. Ouellet only wanted the employer toallow him to continue his therapy with Dr. Frigault and then to return to work. The choiceof psychotherapist was based on his religious beliefs and was not frivolous.34 The employer stopped paying for his therapy with Dr. Frigault in May 2003. Thetherapy ended in September 2003.35 The employer held a meeting in August 2003 to discuss a return to work withouttherapy. That is like a person in a wheelchair being refused access to an elevator.36 Additionally, there was no contact between the employer and Mr. Ouellet other thanthrough correspondence between August 2003 and July 2005, when another return-toworkoffer was made but still without therapy, although his health was deteriorating.37 Finally, in April 2006, following Dr. Mayrand’s medical assessment, it was confirmedthat Mr. Ouellet could not return to work without first undergoing therapy. Therefore, this

is a case of the employer refusing to accommodate a medical problem. Defraying thecosts of Mr. Ouellet’s therapy did not constitute an undue hardship for the employer.38 As a result of the refusal, Mr. Ouellet had no choice in 2007 but to retire rather than bedismissed for incapacity.39 Mr. Ouellet’s representative referred me to the following paragraphs of Centrejeunesse des Laurentides c. Syndicat des employés des services sociaux des Laurentides(CSN), 2006 CanLII 35636 (QC A.G.):[Translation][125] The Court describes as follows each step of the test:…2010 PSLRB 40 (CanLII)Step OneThe first step in assessing whether the employer has successfully establisheda BFOR defence is to identify the general purpose of the impugned standardand determine whether it is rationally connected to the performance of thejob. The initial task is to determine what the impugned standard is generallydesigned to achieve. The ability to work safely and efficiently is the purposemost often mentioned in the cases but there may well be other reasons …The employer must demonstrate that there is a rational connection betweenthe general purpose for which the impugned standard was introduced and theobjective requirements of the job…The focus at the first step is not on the validity of the particular standard thatis at issue, but rather on the validity of its more general purpose…Step TwoOnce the legitimacy of the employer’s more general purpose is established,the employer must take the second step of demonstrating that it adopted theparticular standard with an honest and good faith belief that it was necessaryto the accomplishment of its purpose, with no intention of discriminatingagainst the claimant…Step ThreeThe employer’s third and final hurdle is to demonstrate that the impugnedstandard is reasonably necessary for the employer to accomplish its purpose,which by this point has been demonstrated to be rationally connected to theperformance of the job. The employer must establish that it cannot

accommodate the claimant and others adversely affected by the standardwithout experiencing undue hardship… Yet the standard, if it is to bejustified under the human rights legislation, must accommodate factorsrelating to the unique capabilities and inherent worth and dignity of everyindividual, up to the point of undue hardship.The employer did not demonstrate that it followed the three steps.…40 In Mr. Ouellet’s case, there was no contact for almost 18 months, even though he wasbeing paid. On that point, his representative cited the following paragraph from Syndicatdes employés et employées de techniques professionnelles et de bureau d’Hydro-Québec,section locale 2000, 2006 QCCA 150:2010 PSLRB 40 (CanLII)…[102] The arbitrator could not conclude on his own that Hydro-Québec did not need toaccommodate Ms. L. based solely on the evidence of her possible inability to perform herjob in the reasonably foreseeable future. The burden on the employer in defence of aBFOR is heavy, and Hydro-Québec has not discharged it as there is no evidence showingthat it tried to accommodate Ms. L. after February 8, 2001. The patience and tolerancedisplayed by Hydro-Québec in the past with respect to Ms. L.’s numerous absences donot represent accommodation; Hydro-Québec took these measures with no regard to herdisability since it was not yet aware of it. The duty to accommodate requires theemployer to be proactive and innovative, that is to say, it must make concrete efforts toaccommodate or it must demonstrate that its attempts have been in vain and that anyother solution, which must be identified, would impose an undue hardship. It is notsufficient to state simply that there are no other solutions; such an assertion must bedemonstrated.41 She also cited Ontario Human Rights Commission and O’Malley v. Simpsons-SearsLtd., [1985] 2 S.C.R. 536, and asked me to allow the grievance.B. For the employer…42 The employer’s representative argued that the first thing to establish is the matter atissue. The grievance, which is similar to Mr. Ouellet’s complaint with the CHRC,invokes discrimination because he was not accommodated and seeks as corrective actionthat the employer defray the costs of his therapy with the psychotherapist of his choice.43 Therefore, the question at issue is whether the employer is required, as anaccommodation, to pay for the employee’s therapy treatments.

44 The grievor’s argument refers essentially to the criteria established by the SupremeCourt of Canada in British Columbia (Public Service Employee Relations Commission) v.BCGSEU, [1999] 3 S.C.R. 3 (Meiorin). To summarize, if an individual has a disability,the employer must offer to accommodate, taking into account any justified occupationalrequirement, to the point of undue hardship. Otherwise, there is discrimination. In thiscase, it is not that simple. Did Mr. Ouellet’s request represent an accommodation? Wasthe employer required to comply with it?45 The Federal Court answered those questions in Ouellet v. Canada (Attorney General),2006 FC 1541. Under cross-examination, the complainant was unable to explain thedifference between his complaint and his grievance. The employer cited the followingparagraphs of that decision:…2010 PSLRB 40 (CanLII)[38] The applicant also criticized the investigator for not having examined the main issueof his complaint, that is to say, the matter of whether the Department had properlyaccommodated the applicant by preparing a return-to-work plan that met his needs. Insupport of his argument, he submits that the investigation record did not contain anydocument showing the Department had prepared a return-to-work plan and that theinvestigator did not do a thorough job, having failed to question the employer’s witnessesabout their return-to-work plan. In addition, the applicant states that the investigationreport did not contain any analysis of the employer’s duty to accommodate or of thereturn-to-work plan proposed by the employer.[39] Once again, I am not satisfied by this argument. The issue was not whether theDepartment’s return-to-work plan was in compliance with Dr. Frigault’srecommendations. Ultimately, it was up to the Department to determine the best way tohave Mr. Ouellet return to work, relying on Dr. Frigault’s recommendations forinspiration, of course. In this case, what the investigator had to consider, and what theCommission had to decide, was whether the employer had fulfilled its duty toaccommodate.[40] On this point, the investigator’s report appears to me to be complete. She explainedall the measures taken by the employer to facilitate Mr. Ouellet’s return to work: a paidleave of absence; the payment of fees for assessment and psychotherapy, as well as Mr.Ouellet’s travel expenses; the extension of Dr. Frigault’s contract, twice; and an offer ofemployment made to the applicant to ensure his return to work.[41] It is interesting to note that, in his report filed with the Department in February 2003,Dr. Frigault mentioned being of the opinion that Mr. Ouellet was fit to return to work andadded that he should continue receiving psychological treatments to ensure the success ofhis return. The employer seems to have taken this recommendation into consideration. Itwas only on the issue of the means that the employer disagreed with Dr. Frigault, insofaras the employer was of the view that the psychotherapy required by the applicant should

e paid from now on under the Public Service Health Care Plan or the EmployeeAssistance Program.[42] The investigator also noted the concerns mentioned by Mr. Ouellet and hispsychologist about the return-to-work plan proposed by the respondent. The investigatoreven contacted the Department to obtain more information about the return-to-work planand the reasons why it did not comply with Dr. Frigault’s recommendations (letter frominvestigator Anick Hébert to Serge Viens, dated June 22, 2005, Applicant’s Record,pages 263-264). Finally, she carefully dealt with the applicant’s complaint withoutavoiding the fundamental issue of accommodation and mentioned all the relevant facts inher report.[43] From the moment she concluded that the applicant refused to co-operate with theemployer, she was not required to take her analysis any further. Her role was not tochoose the best way of having Mr. Ouellet return to work, but rather to determine if theevidence established that the Department did not fulfil its duty to accommodate.Considered from this point of view, the investigator’s report was thorough and gave theCommission relevant information allowing it to rule on Mr. Ouellet’s initial complaintwhile respecting the principles of procedural fairness as prescribed by the decisionsrendered under paragraph 44(3)(b) of the Act. In endorsing an investigation report thatwas free of any procedural irregularities, the Commission rendered a decision that is notopen to judicial review by this Court.2010 PSLRB 40 (CanLII)…46 The elevator analogy is weak. Mr. Ouellet does not need an elevator because he is fitto work. He wanted psychotherapy to better his life, and he wanted the employer to payfor it. But is he fit to work, or not?47 The employer’s representative reviewed the evidence and submitted the followingpoints:• Dr. Frigault declared Mr. Ouellet fit in February 2003 (Exhibit G-3).• After that, the employer agreed to defray additional psychotherapy costs butwanted the complainant to return to work in August 2003.• Dr. Frigault’s credibility is in doubt because he is not registered with anyprofessional body and because he stresses the importance of therapy as a returnto-workmeasure even though it is outside his mandate.• Dr. Frigault appeared to assume the role of Mr. Ouellet’s representative, which hewas not asked to do.• In November 2003, Mr. Ouellet was asked to return to his position, but he refusedas long the employer would not pay for his therapy. He insisted that Dr. Frigaultbe his therapist.• Mr. Ouellet did not even seek to have his therapist’s services paid through hishealth insurance plan.

• The problem then became Mr. Ouellet’s and not the employer’s. The employerwas not responsible for Mr. Ouellet’s dependence on Dr. Frigault, for Dr.Frigault’s questionable conduct or for Mr. Ouellet’s complete lack of flexibility inobtaining help.• It is true that 18 months passed without any action by the employer, but the file iscomplex, and additionally, Mr. Ouellet was on leave with pay during that period.• The employer again attempted to have Mr. Ouellet return to work in 2005, but hewas on certified sick leave and was ultimately declared unfit to work in April2006.48 The employer’s representative concluded that the employer was not Mr. Ouellet’sinsurer. Moreover, the supplier in his case, Sun Life, paid benefits retroactive to the startof Mr. Ouellet’s leave without pay. The dispute is not about money but about Mr.Ouellet’s insistence on having Dr. Frigault as his psychotherapist.2010 PSLRB 40 (CanLII)49 The following authorities were cited:• Gunderson v. Treasury Board (Revenue Canada - Customs and Excise), PSLRBFile Nos. 166-02-26327 and 26328 (19960725):…6 The parties are ad idem that the issue to be addressed here is to what extent theemployer has an obligation, flowing from the above-noted adjudication decision, tounderwrite the cost of Mr. Gunderson’s treatment, and to refrain from recovering thosecosts from Mr. Gunderson. I would note at the outset that it would appear that theemployer has not at this time taken steps to recover such costs; accordingly, adetermination as to whether the employer has the right to engage in such a recovery is atbest premature, and possibly academic. I would however make the observation that in myview the matter of the costs associated with the rehabilitation of the grievor is, in theabsence of any contractual obligations to the contrary, the responsibility of the individualemployee, and not that of the employer. If it were otherwise, then the various provisionsin collective agreements respecting sick leave, workers’ compensation, injury on dutyleave and disability benefits, would be entirely superfluous. I do not believe that there isanything in the Public Service Staff Relations Act or the Canadian Human Rights Act,that provides that there is an inherent right, again, absent any contractual obligations, onthe part of an employee to demand that the employer underwrite the medical cost arisingout of a disability from a non-work related illness. I would note that Mr. Ahrens did notcite any jurisprudence which would support such a position, nor have I been able to findany. Indeed, the only case-law which I have been able to find having some relevance tothis issue appears to support the employer’s view. In Canadian Airlines International Ltd.v. Canadian Air Line Pilots Association [1996] 3 W.W.R. 683 the British ColumbiaSupreme Court addressed inter alia whether an arbitrator had the authority to order theemployer to place the grievor who had been dismissed in a rehabilitation program. Inoverturning the arbitrator’s award the court concluded:

(at p. 697-698)If an arbitrator substituted suspension and reinstatement for dismissal in acase where the employee had, say, broken his leg and could not return toactive employment, the employee’s entitlement to disability benefits on thedate of reinstatement would surely be governed by the language of thecollective agreement. I do not interpret s. 60(2) of the Code as empoweringthe arbitrator in such a case to order the employee reinstated to disabilitybenefits the employee was not otherwise entitled to under the collectiveagreement, since that would not be an “other penalty” under s. 60(2) but abenefit. If the collective agreement did not provide disability benefits, theemployee would simply have to wait until his leg was healed before thereinstatement to active employment took effect.Although there was a good deal of argument addressed to the question ofwhether the program was part of the collective agreement, that is not in myview an issue that needs to be resolved. Unless the collective agreement orthe program document contain a provision which entitles the grievor toparticipate in the program, he is not entitled to do so, just as he is not entitledto disability benefits on reinstatement unless he qualifies for them under thelanguage of the collective agreement. It is not open to the arbitrator, actingunder s. 60(2) of the Code to create entitlement to benefits or to order thatthe grievor be admitted into the program if he is not otherwise entitled to beadmitted under the terms of the collective agreement or program document.2010 PSLRB 40 (CanLII)…[Emphasis in the original];• Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970;• McGill University Health Centre (Montreal General Hospital) v. Syndicat desemployés de l’Hôpital général de Montréal, 2007 SCC 4:…38 The duty to accommodate is neither absolute nor unlimited. Theemployee has a role to play in the attempt to arrive at a reasonablecompromise. If in Ms. Brady’s view the accommodation provided for in thecollective agreement in the instant case was insufficient, and if she felt thatshe would be able to return to work within a reasonable period of time, shehad to provide the arbitrator with evidence on the basis of which he couldfind in her favour.…

50 Also cited as follows was Spooner v. Treasury Board (Correctional Service ofCanada), 2009 PSLRB 60:…139 The concept of “undue hardship” alluded to in the quotation has proved somewhatdifficult to define in the discourse about the duty to accommodate. In Central OkanaganSchool District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court of Canadaconfirmed its decision in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, that Canadian courts should not adopt the approachoutlined in American jurisprudence that would define any effort by or cost to anemployer beyond a de minimis level as qualifying as undue hardship. On the other hand,as the Court stated in Hydro-Québec, the notion of undue hardship does not place aburden on an employer so onerous that it can be satisfied only by showing that it isimpossible to find a satisfactory accommodation. The conclusion that can be drawn fromthese statements is that the obligation resting on an employer is serious and requires thatit make diligent and vigorous efforts to identify options that will permit the employee tocontinue to work, taking into account whatever limitations exist. However, that does notplace on the employer an unlimited obligation to accommodate the employee.2010 PSLRB 40 (CanLII)…141 The principles set out in those decisions indicate that, although an employer isrequired to make vigorous efforts to identify options for accommodating an employee,the obligation is not infinite, and it permits an employer to select options that will serveits purposes as well as the employee’s. The employer is entitled to expect that the workperformed by the employee will make a meaningful contribution to the enterprise. Theemployer is not required to provide “make-work” projects as a pretext for having theemployee continue on the job. It should also be noted that the employee has aresponsibility to reach an agreement about accommodation — that of acceptingreasonable compromise and providing a medical basis on which the employer can makedecisions. The employee and his or her physician have the best understanding of thelimitations entailed by the employee’s physical condition, and it is the employee’sresponsibility to communicate clearly with the employer concerning those limitations.[Emphasis in the original]51 Meiorin was also cited as follows:65 Some of the important questions that may be asked in the course of the analysisinclude:……

(a) Has the employer investigated alternative approaches that do not have adiscriminatory effect, such as individual testing against a more individually sensitivestandard?(b) If alternative standards were investigated and found to be capable of fulfilling theemployer’s purpose, why were they not implemented?(c) Is it necessary to have all employees meet the single standard for the employer toaccomplish its legitimate purpose or could standards reflective of group or individualdifferences and capabilities be established?(d) Is there a way to do the job that is less discriminatory while still accomplishing theemployer’s legitimate purpose?(e) Is the standard properly designed to ensure that the desired qualification is metwithout placing an undue burden on those to whom the standard applies?2010 PSLRB 40 (CanLII)(f) Have other parties who are obliged to assist in the search for possibleaccommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96,the task of determining how to accommodate individual differences may also placeburdens on the employee and, if there is a collective agreement, a union.[Emphasis in the original]52 He concluded that Mr. Ouellet did not cooperate in his return to work as the CHRCpreviously confirmed. The obligation to accommodate does not extend to becoming theinsurer. He was already insured. If he did not receive therapy, he was responsible.Therefore, the employer asks that I dismiss the grievance.IV. Reasons53 The grievance invokes clause 19.01 of the collective agreement for the Program andAdministrative Services group, which reads as follows:…19.01 There shall be no discrimination, interference, restriction, coercion, harassment,intimidation, or any disciplinary action exercised or practiced with respect to anemployee by reason of age, race, creed, colour, national or ethnic origin, religiousaffiliation, sex, sexual orientation, family status, mental or physical disability,membership or activity in the Alliance, marital status or a conviction for which a pardonhas been granted.54 It also invokes sections 3 and 7 of the Canadian Human Rights Act, which read in partas follows:

…3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race,national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status,family status, disability and conviction for which a pardon has been granted.(2) Where the ground of discrimination is pregnancy or child-birth, the discriminationshall be deemed to be on the ground of sex.7. It is a discriminatory practice, directly or indirectly,…(a) to refuse to employ or continue to employ any individual …2010 PSLRB 40 (CanLII)…on a prohibited ground of discrimination.…55 It should be noted that the evidence that Mr. Ouellet adduced and the arguments of hisrepresentative covered only physical or mental disability and did not address age as aground of discrimination.56 The question to decide is whether Mr. Ouellet was discriminated against because of adisability and whether the employer failed in its obligation to accommodate.57 The employer learned in February 2002 that Mr. Ouellet suffered from post-traumaticstress disorder. It immediately placed him on leave with pay, and an agreement wasreached, negotiated by his union, for him to undergo a functional and occupationalassessment to determine the accommodations required by his condition. It was alsoagreed that he would first undergo a psychosocial assessment by a psychotherapist of hischoice, who would make recommendations on the need for therapy and on theappropriate time for the functional and occupational assessment.58 Dr. Frigault conducted the psychosocial assessment and recommended therapytreatments, which were approved and paid for by the employer, along with travel andaccommodation expenses. The grievor continued on paid leave.59 In February 2003, without being instructed, Dr. Frigault issued an opinion stating thatMr. Ouellet was fit to work but that he needed to continue his therapy with Dr. Frigault.Based on that opinion, the employer determined that it was appropriate to proceed withthe complainant’s return to work. At that point, a disagreement arose over how toimplement the return to work. Mr. Ouellet and his psychotherapist insisted that therapyneeded to continue at the employer’s expense and in parallel with his return to work in a

position other than his substantive position, for which the employer had found himunsuited. The employer felt that the cost of future therapy should be covered by thehealth insurance plan and that the return to work should be to the complainant’ssubstantive position.60 The parties were unable to agree until December 2005, when Mr. Ouellet agreed to theWHPSP assessment. The medical assessment found Mr. Ouellet unfit to work.61 I agree with the employer’s representative that, in an accommodation situation, theemployer has the responsibility to cooperate in finding a solution. However, I note thatthe grievor did not cooperate. I base my finding on the fact that the grievor insisted oncontinuing his therapy with Dr. Frigault, that he wanted the employer to cover his therapycosts and that he refused two offered positions.62 For all of the above reasons, I make the following order:2010 PSLRB 40 (CanLII)V. Order63 The grievance is dismissed.March 18, 2010.PSLRB TranslationMichel Paquette,adjudicator

BCLRB No. B175/2010BRITISH COLUMBIA LABOUR RELATIONS BOARDWESTFAIR FOODS LTD. ("Westfair"),LOBLAWS INC. ("Loblaws"),KELLY DOUGLAS & COMPANY LIMITED ("Kelly Douglas"),AND 551384 B.C. LTD. (EXTRA FOODS STORE NO. 8572) (the "Franchisee")(together, the "Employer")2010 CanLII 58300 (BC LRB)-and-UNITED FOOD AND COMMERCIAL WORKERSINTERNATIONAL UNION, LOCAL 1518(the "Union")PANEL:APPEARANCES:Michael J. Adam, Vice-ChairIsrael Chafetz, Q.C., for the EmployerChris Buchanan, for the UnionCASE NO.: 61002DATE OF DECISION: October 5, 2010

- 2 - BCLRB No. B175/2010DECISION OF THE BOARDI. NATURE OF THE APPLICATION1 The Union complains under Sections 11, 47 and 52 of the Labour RelationsCode (the "Code") that the Employer has failed to bargain in good faith for the renewalof the collective agreement at the "Extra Foods" store in Trail, B.C. and that it has failedto appoint a person in B.C. with actual authority to bargain collectively on its behalf.Specifically, the Union alleges that the Employer has tabled a "take-it-or-leave-it"proposal, referred to as the "No Frills" Collective Agreement, and has refused to bargainover its terms. Additionally, the Union alleges the Employer has struck a bargainingcommittee that lacks the authority to deviate from the essential terms and conditions ofthe "No Frills" Collective Agreement, in particular wages and benefits.2010 CanLII 58300 (BC LRB)II.BACKGROUND FACTS2 The present dispute involves the "Extra Foods" store in Trail, B.C. The Unionhas recently engaged in collective bargaining at the "Extra Foods" store in Maple Ridge,B.C. and the "Extra Foods" store in Prince Rupert, B.C. All three "Extra Foods" storeswere franchise operations. The Franchisor in each case is Westfair. Westfair is awholly owned subsidiary of Kelly Douglas, which in turn is a wholly owned subsidiary ofLoblaws.3 Pursuant to a settlement agreement dated May 11, 1998, the Franchisor and theUnion agree that the Franchisor and each individual Franchisee constitute a commonemployer for the purposes of the Code. Hence, while the Maple Ridge, Prince Rupertand Trail "Extra Foods" stores each have the same Franchisor, the Franchisee isdifferent. Each such "Extra Foods" store is also separately certified to the Union, andhas its own distinct bargaining unit and its own collective agreement. Despite the factthat the Franchisor leads the collective bargaining process at every franchise operation,the administration of the resulting collective agreement occurs locally and is largelywithin the control of the Franchisee: see Westfair Foods Ltd. et al., BCLRB No.B17/2010, 176 C.L.R.B.R. (2d) 266 ("B17/2010"), in particular paragraphs 4–9.4 Roger Bockstael acted as the chief negotiator for Westfair in both Prince Rupertand Maple Ridge, and in each case, tabled the "No Frills" Collective Agreement duringnegotiations. At Maple Ridge, Westfair and the Maple Ridge franchisee did not tie theproposed "No Frills" Collective Agreement to the store's financial position. Whenimpasse was reached, the Union commenced strike action and the strike has beenongoing since then. The Maple Ridge store has not closed. At Prince Rupert incontrast, Westfair and the Prince Rupert franchisee took the position that they requireda "No Frills" Collective Agreement in order for the store to be profitable, and advised theUnion the store would close if the Union did not agree to a "No Frills" CollectiveAgreement. Collective bargaining was not successful. The Prince Rupert store hassince closed: see 459966 B.C. Ltd. et al., BCLRB No. B160/2010.

- 3 - BCLRB No. B175/20105 The Trail "Extra Foods" Collective Agreement expired on March 21, 2005. TheUnion had issued notice to bargain in late 2004, but no collective bargaining occurredand considerable time passed. On April 8, 2010, the Union reissued notice to bargain.6 The parties' bargaining committees met for the first time on May 27, 2010. TheEmployer's bargaining committee was composed of Bockstael; Keith Walliser (SeniorDirector, Operations for Westfair); Blaire McCauley (the Franchisee and Trail StoreManager); and Barry Jiminez (a Regional Director for Westfair). The Union's bargainingcommittee was composed of Union representative Glenn Toombs and two bargainingunit members from the Trail store. Bockstael and Toombs were the chiefspokespersons for each bargaining committee. None of the Union's bargainingcommittee members was involved in either the Maple Ridge or Prince Rupertnegotiations.7 The Union tabled its proposals first. The Employer responded that it intended toconvert the Trail "Extra Foods" store to a "No Frills" store and, consistent with thatintention, negotiate a "No Frills" Collective Agreement. The Employer asserted that theUnion should be familiar with the "No Frills" proposal from Maple Ridge and PrinceRupert. The Employer explained it would not agree to a collective agreement if it didnot conform to its "No Frills" Collective Agreement. The Employer intends to negotiatea standard "No Frills" Collective Agreement for all of its "No Frills" franchises in B.C.2010 CanLII 58300 (BC LRB)8 The proposed "No Frills" Collective Agreement includes lower wages andbenefits than the expired collective agreement. Unlike in Prince Rupert, the Employerdid not claim the "No Frills" Collective Agreement was required in order for the Trailstore to be profitable. Instead, the Employer explained it expected a competitor to enterthe market, and wanted to be in a more competitive position if that occurs.9 The "No Frills" Collective Agreement proposed in Trail includes the same termsand conditions of employment as the "No Frills" Collective Agreement proposed inMaple Ridge and Prince Rupert. Bockstael advised the Union that the Employer wouldnot agree to deviate from the proposed "No Frills" Collective Agreement, and that theTrail store would close unless the Union agreed to the proposed "No Frills" CollectiveAgreement.10 The parties met for a second time on June 24, 2010. Bockstael reiterated thatunless the Union accepts the "No Frills" Collective Agreement at Trail, the store willclose. Bockstael also stated that if the Union takes too long to submit the proposed "NoFrills" Collective Agreement to a vote, the store will close. Bockstael reconfirmed thatthe Employer would not bargain any changes to the "No Frills" Collective Agreement,including wages and benefits, but did indicate a willingness to address issues of a localnature. Bockstael is quoted as saying that he is in "no position" to do anything differentat Trail than at Maple Ridge or Prince Rupert. Bockstael is said to have stated that it is"impossible" to alter the "No Frills" Collective Agreement wages and benefits.11 The Union presented a list of 55 questions to the Employer. In response to thequestion whether it would be possible to simply roll over the existing Collective

- 4 - BCLRB No. B175/2010Agreement, the Employer stated that "Extra Foods" has run its course, and the businessnow requires a new concept with a new collective agreement to move forward. Whenasked if the store was making a profit, the Employer responded that it is a marketingissue, and the Union is not entitled to financial information. When asked why theemployees in Trail were being asked to accept an Ontario contract (a version of the "NoFrills" Collective Agreement has been adopted in many Ontario locations), the Employerstated the "No Frills" Collective Agreement proposed in B.C. is based on the Ontariocontract, but is not the same as the Ontario contract. The Employer advised the Union'sbargaining committee that the "No Frills" Collective Agreement works well for theEmployer across Canada.III.POSITIONS OF THE PARTIESThe Union's Position2010 CanLII 58300 (BC LRB)12 The Union argues the Employer has identified a set of non-negotiable terms andconditions of employment which it considers appropriate for implementation acrossCanada, and has refused to consider any other terms and conditions the Union maypropose. The Union argues the Employer has thus demonstrated that it is unwilling toengage in collective bargaining for the Trail store.13 Relying on Sections 2 and 27 of the Code, the Union argues that once a tradeunion becomes the exclusive bargaining agent of the members of the bargaining unit,the employer can no longer simply impose terms and conditions of employment.Instead, the terms and conditions of employment must be negotiated through a processof collective bargaining between the trade union and the employer. The Union arguesthat while the Board does not assess the reasonableness of parties' contract proposals,the Board will evaluate the conduct a party adopts in an effort to reach an agreement toensure that tactics have not been employed that unreasonably inhibit the process ofachieving an agreement: Noranda Metal Industries Limited, BCLRB No. 151/74, [1975]1 Canadian LRBR 145.14 The Union argues that by virtue of the legislative changes in 2002, and inparticular Section 2 of the Code, the duty to bargain in good faith has been enhanced.Also, the Union argues the Board is now subject to a greater statutory obligation tosupervise the conduct of collective bargaining: Forest Industrial Relations, BCLRB No.B256/2003, 100 C.L.R.B.R. (2d) 21 at paragraphs 64-66. The Union argues this trendtowards an enhanced duty to bargain has been further augmented by the decisions ofthe Supreme Court of Canada in Health Services and Support – Facilities SubsectorBargaining Assoc. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 ("HealthServices") and Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R.1016. The Union argues these decisions require the Board to interpret the Code so asto "effect a meaningful realization of the right to bargain collectively". The Union reliesin particular on the definition of "collective bargaining" offered by Professor Bora Laskin(as he then was) and adopted by the Supreme Court in Health Services at paragraph29:

- 5 - BCLRB No. B175/2010Collective bargaining is the procedure through which the views ofthe workers are made known, expressed through representativeschosen by them, not through representatives selected or nominatedor approved by employers. More than that, it is a procedurethrough which terms and conditions of employment may be settledby negotiations between an employer and his...employees on thebasis of a comparative equality of bargaining strength.15 The Union argues the Board must now interpret and apply the Code in a mannerthat preserves the meaningfulness of the negotiations that are at the heart of theprotected collective bargaining process. The Union argues in this case substantialinterference with the right to collective bargaining would occur if the Employer ispermitted to simply send a negotiator to the bargaining table with a "take-it-or-leave-it"proposal and with no authority to deviate from that proposal. The Union likens theEmployer's approach at Trail to the prohibited practice of "Boulwarism" rejected by theNational Labour Relations Board in the United States: National Labour Relations Boardv. General Electric Company, 418 F. 2d 736 (1969).2010 CanLII 58300 (BC LRB)16 The Union argues that by coming to the collective bargaining table with a closedmind, the Employer engages not just in surface bargaining, which the Union alleges hasoccurred here, but also shows disdain for the rights of the employees and the Unionunder the Code. In this regard, the Union relies on the comments of Mr. Justice Cory inRoyal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 atparagraph 41:In the context of the duty to bargain in good faith a commitment isrequired from each side to honestly strive to find a middle groundbetween their opposing interests. Both parties must approach thebargaining table with good intentions.17 Once notice to bargain has been issued, the Union argues that neither the tradeunion nor the employer may refuse to bargain, nor may either side send to thebargaining table a negotiator with no actual authority to conclude a collective agreementor to engage in collective bargaining.18 In the case of extra-provincial companies such as Loblaws and Westfair, theUnion argues that the Legislature sought to circumvent this type of "sham" bargainingby requiring such entities to designate a resident of B.C. with authority to bargaincollectively to conclude a collective agreement. The Union argues that by sendingBockstael to the table without authority to bargain over wages, benefits and other keyterms and conditions of employment, Loblaws and Westfair have breached Section 52of the Code.19 The Union also argues the Employer has refused to accept its fundamentalobligation to bargain in good faith by taking the position that unless the Union agrees tothe "No Frills" Collective Agreement and none other, the Trail store will close. The

- 6 - BCLRB No. B175/2010Union argues the Employer has no intention of engaging in collective bargaining, andthus has given its "negotiators" no authority to bargain.The Employer's Position20 The Employer argues the "Extra Foods" concept, which was introduced in 1984,has run its course and has become outdated. Consequently, the Franchisor hasdeveloped the "No Frills" marketing concept for its franchise businesses as areplacement marketing plan. Concurrent with the conversion of stores to the "No Frills"concept, the Franchisor has developed a model collective agreement reflecting a labourprogram that aligns with its "No Frills" marketing plan. Westfair's collective bargainingproposals in Prince Rupert, Maple Ridge and now Trail reflect Westfair's desire toimplement its "No Frills" Collective Agreement at each of its "No Frills" stores.21 The Employer argues that in Ontario, the UFCW Canada Local 1000A hasagreed to a "No Frills" Collective Agreement covering approximately 130 "No Frills"franchises. In addition, the Employer argues that similar "No Frills" CollectiveAgreements have been negotiated with the CAW and the RWDSU in Ontario for otherfranchises that have converted to "No Frills" stores.2010 CanLII 58300 (BC LRB)22 In B.C., the Union has resisted the collective agreement change from "ExtraFoods" to "No Frills". The Employer argues that from the franchisee/franchisorperspective, it wants to have consistent collective agreements across all of its franchiseoperations. The Employer argues that this desire is consistent with the patternbargaining that has traditionally occurred in the retail grocery industry in B.C. where allmajor food retailers have the same or similar collective agreements within their groupsof stores. Traditionally, it has been the Union that has insisted on pattern bargaining inthis industry in B.C. The Employer argues it is ironic that in this case, it is now theEmployer that wants to set a pattern and the Union that is resisting setting a pattern.23 The Employer argues that from the inception of its "No Frills" conversion, theUnion has been critical of the "No Frills" proposal and has resisted any material changeto the collective agreements. The Employer disagrees with the Union's position, butacknowledges the Union has the right to oppose the changes. The Employer notes,however, that UFCW, Local No. 247 does not share the same negative view, and hasaccepted "No Frills" Collective Agreements.24 In the final analysis, the Employer says the Union has taken the untenableposition that it will never agree to a "No Frills" Collective Agreement. The Employeralso says as a consequence, the Union continues to engage in tactics of delay designedto prevent the Employer from putting the proposed "No Frills" Collective Agreement toits employees directly, by way of a last offer vote. The Employer argues the presentapplication is merely another iteration of those delaying tactics.25 The Employer submits that the "No Frills" proposal is adapted from the collectiveagreements negotiated with other locals of the UFCW in Ontario. Subject to localvariances, the Employer is seeking to establish a collective agreement that will form the

- 7 - BCLRB No. B175/2010pattern for its "No Frills" franchises throughout B.C. The Employer points out that Trailis the first and only time the Union has objected to the Employer tabling the proposed"No Frills" Collective Agreement in collective bargaining.26 The Employer also takes exception to the Union's decision to assign Toombs toconduct the negotiations at Trail. Toombs has not been involved in the prior "No Frills"negotiations in Prince Rupert and Maple Ridge, and therefore, is not well-informed as tothe substance of the negotiations. The Employer argues that Toombs' assignment issimply intended to perpetuate delay and continue to avoid an inevitable last offer vote.The Employer also argues that Toombs' limited availability (despite the fact he is semiretired)further supports the conclusion that the Union is engaged in delaying tactics.27 The Employer does not dispute the Union's description of the conduct of thenegotiations to date. The Employer admits it tabled the "No Frills" proposal, and thatBockstael asked Toombs five times whether the Union intended to take the sameposition in Trail as it had taken in Maple Ridge and Prince Rupert. The Employerargues that it is critically important that it understand the Union's position in order for itto conduct negotiations in a manner consistent with its obligations under Section 11 ofthe Code. Ultimately, the Employer contends that Toombs has not confirmed theUnion's position in Trail with regard to the "No Frills" proposal.2010 CanLII 58300 (BC LRB)28 The Employer also notes that Toombs asked on a number of occasions whetherthe "No Frills" proposal was a "take-it-or-leave-it" proposal. The Employer says itresponded that it is a pattern collective agreement the Employer wants to establish forits "No Frills" franchises in B.C., subject to variations to account for local issues. TheEmployer also advised the Union that if it did not get a "No Frills" Collective Agreement,it would close the store. Finally, the Employer emphasizes that during negotiations, ithas accepted five local issue-type changes to the "No Frills" Collective Agreementbased on the Union's proposals and submits that four other Union proposals are alreadyfavourably addressed in the "No Frills" proposal.29 Over the course of two days of collective bargaining, the Employer answered 50questions regarding its "No Frills" proposal, and later responded in writing to five otherquestions. The Employer says its committee members responded to the vast majorityof these questions without seeking further instructions or consulting with anyone,demonstrating that they have the requisite authority to bargain. Moreover, the Employerargues the Union made no attempt to find any middle ground to the "No Frills" proposal.30 When examined in its entire context, the Employer argues there is no substanceto the Union's complaint, and that it ought to be summarily dismissed. The Employerargues this is simply a case where both parties are taking firm positions that they arenot prepared to deviate from. The Employer emphasizes its "No Frills" proposal hasbeen the subject of collective bargaining at other bargaining tables with the Union priorto the commencement of negotiations in Trail. The Employer says this is simply anexample of this Employer engaging in hard bargaining to achieve an agreement in B.C.that it has negotiated with another local of the same union in B.C. and with another localof the same union in Ontario. The Employer says there is no evidence it is resisting

- 8 - BCLRB No. B175/2010either the advent of collective bargaining or refusing to reach agreement to anycollective agreement whatsoever, and therefore, the complaint ought to be dismissed.The Employer says there is nothing untoward about the Employer trying to implement apattern in B.C. The Employer argues that this application amounts to an unnecessarydiversion from the likely last offer vote in which the employees will decide forthemselves.IV.ANALYSIS AND DECISION31 Section 11 of the Code sets out the duty to bargain in good faith as follows:Requirement to bargain in good faith(1) A trade union or employer must not fail or refuse tobargain collectively in good faith in British Columbia and tomake every reasonable effort to conclude a collectiveagreement.2010 CanLII 58300 (BC LRB)(2) If a trade union and the employer have concluded acollective agreement outside British Columbia, it is invalid inBritish Columbia until a majority of the employees in BritishColumbia covered by the agreement ratify it.32 Section 11 includes two collective bargaining obligations: "good faith" and "everyreasonable effort". "Collective bargaining" is a defined term in Section 1 of the Code:"collective bargaining" means negotiating in good faith with aview to the conclusion of a collective agreement or its renewal orrevision, or to the regulation of relations between an employer andemployees. (emphasis in original)33 In interpreting and applying Section 11 of the Code to the issues before me, Iemphasize that I must also do so in a manner consistent with the duties set out inSection 2 of the Code:Duties under this Code2. The board and other persons who exercise powers and performduties under this Code must exercise the powers and perform theduties in a manner that(a) recognizes the rights and obligations of employees,employers and trade unions under this Code,(b) fosters the employment of workers in economically viablebusinesses,(c) encourages the practice and procedures of collectivebargaining between employers and trade unions as the freelychosen representatives of employees,

- 9 - BCLRB No. B175/2010(d) encourages cooperative participation between employersand trade unions in resolving workplace issues, adapting tochanges in the economy, developing workforce skills anddeveloping a workforce and a workplace that promotesproductivity,(e) promotes conditions favourable to the orderly, constructiveand expeditious settlement of disputes,(f) minimizes the effects of labour disputes on persons whoare not involved in those disputes,(g) ensures that the public interest is protected during labourdisputes, and(h) encourages the use of mediation as a dispute resolutionmechanism.2010 CanLII 58300 (BC LRB)34 I do not accept the Union's submission that Section 2 of the Code has enhancedthe duty to bargain in good faith or that it has imposed on the Board a greater duty tosupervise the collective bargaining process. I also do not accept the Union'ssubmission that the duty to bargain requires the parties to compromise. Although theobligation to make "every reasonable effort" to reach a collective agreement mayrequire the parties to consider alternative ways of satisfying their interests, they are notrequired to compromise or concede those interests. On the other hand, I accept thatSection 11 must be interpreted and applied with the Section 2 duties firmly in mind.Section 2 helps inform the content of the duty to bargain in good faith and providesfurther direction as to what is required in order to make every reasonable effort toconclude a collective agreement.35 Collective bargaining is a process of negotiation designed to promote mutualagreement on terms and conditions of employment. Where mutual agreement cannotbe reached and the parties reach an impasse in collective bargaining, the parties arethen entitled as a last resort to engage in economic sanctions to try to compelagreement on their terms. Collective bargaining is intended to be a process wherebythe parties' respective bargaining representatives engage in rational discourse anddiscussion with the hope that an accord can be reached that is acceptable to bothparties. On the whole of the evidence before me, I find the Employer's approach is notconsistent with having made every reasonable effort to reach a collective agreement atTrail for the reasons set out below.36 While I accept that Westfair and the Union have discussed the "No Frills"Collective Agreement in both Prince Rupert and Maple Ridge, the employees in Trailare in a separate bargaining unit, have their own collective agreement that is presentlysubject to renewal, and perform work for a different Franchisee. The Union's bargainingcommittee in Trail is composed, in part, of representatives who work in the Trail store;the Employer's bargaining committee also includes the principal of the Franchisee.Persons on both sides of the bargaining table have not participated in the Prince Rupert

- 10 - BCLRB No. B175/2010or Maple Ridge negotiations. Also, the submissions disclose that the circumstances ateach of the three stores are different, and therefore, the impact of the proposed "NoFrills" Collective Agreement and the scope of possible alternatives may also bedifferent.37 Moreover, although the collective agreements for each franchise are negotiatedby the Franchisor, they are administered on a day-to-day basis by the Franchisee. TheFranchisee in Trail may have different views as to the proper administration of theproposed "No Frills" Collective Agreement than the Franchisees in either Maple Ridgeor Prince Rupert. As was noted in B17/2010 at paragraph 20:Given that it is undisputed that the Franchisee continues toexercise control over the day-to-day operations of the enterprise, Icannot accept the Union's submission. By virtue of its control overthe day-to-day operations, the Franchisee continues to exercisesome control and direction over the employees and the enterprise.Accordingly, it cannot be said that the Franchisor is now the trueemployer and the common employer status the parties agreed tounder the Settlement no longer applies. There continues to be adegree of functional interdependence and of common control anddirection.2010 CanLII 58300 (BC LRB)38 Given that the Franchisee controls the day-to-day operations of the enterprise,the Franchisee's views as to the administration of the proposed "No Frills" CollectiveAgreement may be of importance in collective bargaining.39 In reaching these conclusions about the conduct of collective bargaining, I do sohaving regard for the decision of Vice-Chair Saunders in B17/2010. In B17/2010, theUnion applied to have Westfair declared the true employer for all of the "Extra Foods"franchises certified by the Union. The Franchisor and the eight individual "Extra Foods"Franchisees opposed that application. In doing so, the Franchisor and the Franchiseesargued that the Franchisees "...play an active role in bargaining insofar as theygenerally attend bargaining sessions, are involved in the development of bargainingproposals and strategy, and discuss and evaluate the Union's proposals" (at paragraph8). Moreover, it was established that the Franchisees exercise day-to-day control overtheir employees and their operations, which inevitably involves the administration of thecollective agreement.40 The issue before me is whether the Employer has satisfied its duty to bargain atTrail. In light of these circumstances, the Employer cannot rely on the negotiations thathave already taken place in Maple Ridge and Prince Rupert as a basis for claiming thatit has already made reasonable efforts to reach a collective agreement in Trail. Whilethose negotiations obviously provide some context for the current round of collectivebargaining in Trail, and obviously inform the overarching relationship between theFranchisor and the Union, those negotiations involved different Franchisees, differentbargaining units, different employees, and a different common employer. The Unionbargaining committee at Trail may formulate a different view of the Employer's "NoFrills" proposals than the committees in the other locations, or may have alternative

- 11 - BCLRB No. B175/2010approaches or suggestions that will allow a collective agreement to be concludedbetween the parties. Moreover, in the event the Employer does ultimately apply for alast offer vote, the Trail employees who will be asked to vote on the proposal maybenefit from having had their local representatives—persons whom they work with everyday—engage in a meaningful process of collective bargaining.41 While the Employer is certainly entitled to engage in hard bargaining in order tosatisfy its interests in the collective bargaining process, I am not satisfied that at Trail,the Employer has as yet engaged in meaningful collective bargaining. I acknowledgethe Employer has answered 55 questions regarding its "No Frills" proposal, but I am notsatisfied that in the circumstances of this case that answering questions is the samething as negotiating.42 In this case, the Employer has presented a comprehensive package and hastaken the position that the core aspects of that package are non-negotiable; only socalledlocal issues are subject to negotiation. The Employer has also indicated that itdoes not believe the Union will ever accept its proposal, and that a last offer vote isvirtually inevitable. While the parties have not included the entire set of questions andanswers in their submissions, they have given some indication of the nature of thequestions, and in particular, have included Bockstael's July 20, 2010 letter to JamesRaposo addressing some of Toombs' questions that remained outstanding after thesecond day. What I am able to infer from the submissions and documents before me isthat the questions and answers relate only to the Employer's "No Frills" proposal, andnot to any exploration of alternatives to those proposals that may lead to mutualagreement.2010 CanLII 58300 (BC LRB)43 The Employer appears to have adopted the perspective that the Trailnegotiations are but a stop along the way in a broader process of collective bargainingfor all of the stores in its "Extra Foods" banner. While that may be true from thestandpoint of the Union and the Franchisor, that perspective fails to recognize that Trailis a separate bargaining unit, has a different Franchisee and involves a different groupof employees.44 The Employer has concluded that it is virtually inevitable that the Union will notagree to its "No Frills" Collective Agreement, and that it will be forced to put its proposalto the employees by way of a last offer vote. That may very well be the case. Giventhat likelihood, I find that it is even more critical that the Employer engage in rationaldiscussion of its proposals at Trail with the Union's Trail bargaining committee and thus,at a minimum, allow the Trail employees an opportunity—through their localrepresentatives and the Union—to consider the "No Frills" proposal and its implicationsfor their workplace and in the context of the community in which they live. If theEmployer remains steadfast and rejects any alternatives put forward by the Union'sbargaining committee, the Union's bargaining committee is entitled to hear theEmployer's explanation why that is the case, especially if the Union's proposal is equallycapable of satisfying the Employer's interests. I am not persuaded it is appropriate toattribute to the bargaining unit members in Trail knowledge and understanding gained

- 12 - BCLRB No. B175/2010by the bargaining unit members in Prince Rupert and Maple Ridge simply because theyare represented by the same trade union.45 I also wish to address the Employer's argument that it is simply acting in amanner consistent with the Board's policy regarding pattern bargaining. The Employerargues that the Board has routinely rejected allegations that a desire to have a"standard" or "pattern" collective agreement amounts to a prima facie breach of the dutyto bargain in good faith: The H.A. Roberts Group Ltd., BCLRB No. 44/77 ("H.A.Roberts") and Buhler Bros. Excavating Ltd., BCLRB No. 261/83. While I accept that themere desire to have a standard or pattern collective agreement is not a prima faciebreach of the duty, the tactics involved in trying to force acceptance of a pattern maygive rise to a breach.46 Under Section 11 of the Code, the Board is concerned about the conduct ofbargaining, not its substance. Nothing precludes an employer from having a standardor pattern collective agreement in mind, and through the process of collectivebargaining, building a collective agreement that establishes the desired pattern orstandard. Once an employer has engaged in the collective bargaining process, and hasnegotiated a consistent collective agreement across a number of bargaining units withinan industry, then the employer may be in a position to insist on that pattern or standardat the outset of subsequent negotiations with other industry employers.2010 CanLII 58300 (BC LRB)47 I find the authorities relied upon by the Employer to be readily distinguishablefrom the case before me. In H.A. Roberts, the Carpenters tabled their standard industryagreement and took a strike vote soon after. This approach must be considered in itsappropriate context. At page 34, the Board noted that:Here, leaving aside for a moment the Addendum aforesaid, theCarpenters simply put their new "Standard Agreement 1977-78" onthe table and, so it was submitted, clearly expected the Employer tosimply sign the same without alteration. Indeed, there wasevidence that the Carpenters have entered into some sort of pactwith other building trades unions that the various standardagreements negotiated on an industry-wide basis under theauspices of the two umbrella organizations will not be altered underany circumstances. There may be addenda signed with employers,or understandings reached with employers as to when and in whatcircumstances the standard agreements will apply, but theagreements themselves must stay pure. Counsel referred to theoft-quoted passage from R.V. Davidson Rubber Co. Inc. (supra):Bad faith is attributed to (a party) who holds to a predeterminedposition throughout bargaining negotiations.If the (party) takes a 'take it or leave it' attitude, he mayalso be adjudged in bad faith. (emphasis added)

- 13 - BCLRB No. B175/201048 Given that the Employer in this case has taken what amounts to an unalterablepre-determined position, the Panel's further comments in H.A. Roberts are helpful:The thought expressed in that passage [at para. 47 above]certainly expresses a standard against which the conduct ofparticipants to the bargaining process can normally and reasonablybe tested. As was said in Ladner Private Hospital Ltd. (DecisionNo. 19/77):The obligations contained in (Section 6) reflect decent,minimum standards that have evolved in labourmanagementnegotiations. The good faith bargainingprocess generally starts off as an exercise in narrowingthe issues. The parties begin by identifying those areaswhere there is no disagreement and those areas wherea demand is not really pressed. The tacit assumption isthat (there will be) concessions made (by both partiesduring the process)... (pp. 34-35)2010 CanLII 58300 (BC LRB)49 Before addressing the crux of the Employer's position, I pause to note that theabove outline of the collective bargaining process in Ladner Private Hospital et al.,BCLRB No. 19/77 ("Ladner Private Hospital") assumes that both parties have come tothe bargaining table proposing far more than they really want to achieve. It assumesthey have included in their bargaining proposals "throw away" items, or have taken amore extreme position with regard to particular items than they are really aiming toachieve (e.g., proposing a 6% wage increase when their actual bottom line is 2.5%). Itis in this context that the "tacit assumption" is made that both parties will makeconcessions.50 That is obviously not the approach the Employer has taken in this case. Here,the Employer has essentially put forward its final offer as its first offer. Hence, anassumption that the Employer has left itself room to make concessions is probably notvalid. Moreover, I do not accept that collective bargaining requires the parties to makeconcessions in every case, nor should the Board require the parties to come to thebargaining table with inflated demands and "throw away" proposals so they can engagein the process of trading concessions. In fact, the collective bargaining process mightbe better served if more parties came to the bargaining table with an initial proposal thatmore closely reflects their real collective bargaining objectives.51 Where one or both parties come to the bargaining table with a proposal thatreflects their real collective bargaining objectives, does that mean that bargaining willstart off at an impasse to the extent that the two proposals are inconsistent with eachother? Not necessarily. The fact remains there are often many different ways toachieve specific collective bargaining objectives, and it is the rational and genuinediscussion and consideration of those alternatives that might produce a mutuallyacceptable outcome. If it does not, what differences remain between the negotiatingparties will be settled by a contest of their relative bargaining power and resolve.

- 14 - BCLRB No. B175/201052 Returning to the crux of the Employer's argument, the Panel in H.A. Robertswent on to discuss the "pattern bargaining" exception to the normal collective bargainingprocess referred to above in Ladner Private Hospital:But just as with every norm this one cannot be appliedblindly to every set of circumstances. The conduct of any partyshould not be looked at in isolation. One legitimate area of inquiryis whether bargaining structures or practices in the industrygenerally are such as to put otherwise objectionable conduct in adifferent light. We have already given an outline of some of thosestructures and practices and the reason therefor and we again referthe reader to the more complete analysis in R.M Hardy andAssociates Ltd. (supra) and, as well, Construction Labour RelationsAssociation, (supra).The Carpenters had just come off a protracted round ofbargaining with C.L.R.A. and had reached a new standardagreement for their jurisdiction applicable to the several hundredmembers of that organization. As well, they had had this newagreement signed by a number of Independents and couldreasonably expect that most, if not all, of the employers in theindustry to which they were certified would be signing and applyingthe same in due course. What the Carpenters presented to theEmployer on June 13, apart from the Addendum, represented, totheir mind, an industry norm. (The Carpenters do not take the samehard position with their various Addenda as they do with theirstandard agreements.) ...We do not consider, in all of thesecircumstances, that the Carpenters' view of its province-widestandard agreement can be labelled as unreasonable as thatadjective has come to be used in the context of the bargaining ingood faith conundrum.2010 CanLII 58300 (BC LRB)Now, having said that, we should say that a finding that aparticular bargaining stance or position does not violate the duty tobargain does not imply a finding that the position is completelyreasonable or that a refusal by the other party to agree to the samewould be, itself, unreasonable and in violation of the duty. Here,the Employer may wish to make proposals which, in its view, moreproperly reflect the facts of life of the phase or segment of theconstruction industry in which it is primarily involved in BritishColumbia. If it does that, and so long as the motivation is genuine,it could hardly be labelled as having acted unlawfully... . (pp. 35-36, emphasis added)53 That is not what has occurred in this case. The Employer is not relying on anestablished pattern collective agreement signed by "several hundred" employersreached after "protracted negotiations". The Employer has not established a pattern orstandard collective agreement in B.C. for its "No Frills" stores; as it states in itssubmission, it is only seeking to do so, based on a model that it has successfullyestablished in Ontario. In my view, it is not consistent with Section 11 of the Code to

- 15 - BCLRB No. B175/2010seek to establish a pattern collective agreement by presenting a comprehensivepackage proposal at the outset of negotiations and then refusing to genuinely consideralternatives, all the while waiting under a threat of store closure to submit the proposalto a last offer vote.54 By putting forward a comprehensive proposal on the first day of collectivebargaining that it is not prepared to alter (except in respect of local issues), theEmployer effectively defeated the collective bargaining process contemplated bySection 11 of the Code. If the proposal was consistent with an already establishedindustry standard or pattern in B.C., my conclusion might have been different. In theabsence of an established pattern or standard in B.C. for "No Frills" franchises, theEmployer's approach is not consistent with making every reasonable effort to reach acollective agreement in Trail. Taking unalterable positions at the outset of negotiationswithout a genuine willingness to consider and discuss the interests underlying thosepositions or to consider potential alternative trade-offs is inconsistent with good faithcollective bargaining.2010 CanLII 58300 (BC LRB)55 Bargaining is not merely the act of taking and putting forward positions andanswering questions. Bargaining assumes a willingness to persuade and to bepersuaded. While I do not accept the Union's argument that collective bargaininginevitably requires compromise, especially where compromise is inconsistent with aparty's interests, collective bargaining does require meaningful dialogue to take place.56 In my view, the mandate in Section 2 of the Code to foster employment ineconomically viable businesses cannot be fulfilled unless the parties are required toengage in meaningful discussions. Both parties must come to the bargaining table withtheir statutory obligations firmly in mind. While the Board will rarely concern itself withthe substance of collective bargaining—the Board must ensure that the process ofcollective bargaining affords the parties with the best possible opportunity to reach amutually acceptable collective agreement without resorting to economic sanctions, andwhere a collective bargaining dispute cannot be resolved without resorting to economicsanctions (or in this case, perhaps a last offer vote), a process that ensures the partiesand their respective principals fully comprehend what is really at stake. As noted inForest Industrial Relations Limited, BCLRB No. B312/2003, 100 C.L.R.B.R. (2d) 65 atparagraph 41, the objectives in Section 2 are to be achieved through "...collectivebargaining, co-operative participation, and mediative approaches...".57 On the whole of the submissions before me, I find that the Employer's approachto collective bargaining at Trail is inconsistent with its obligation to make everyreasonable effort to reach a collective agreement. While the Employer is free tonegotiate a collective agreement in Trail that it will then use as the basis for buildingtoward a standard or pattern across its "No Frills" franchises, it must do so in a mannerthat facilitates rational discussion of the components of its proposal, and in a mannerthat allows for the genuine consideration of alternatives that might otherwise satisfy itsinterests and requirements. That of course assumes the Union is prepared to makeproposals and counterproposals that might realistically satisfy the Employer's interests,

- 16 - BCLRB No. B175/2010as reflected in its "No Frills" Collective Agreement. If the Union is not prepared to do so,the collective bargaining process at Trail will likely reach an impasse very quickly.58 On the basis of the foregoing, I hereby declare that the Employer has breachedSection 11 of the Code. I direct that the Employer and the Union return to thebargaining table and conduct collective bargaining in accordance with the principles Ihave outlined above. Given those requirements, I am mindful of the Employer'sconcerns about delay. The Board has an obligation to interpret and apply the duty tobargain in a manner that supports the orderly, constructive and expeditious resolution ofdisputes, including collective bargaining disputes: Section 2(e).59 Consequently, I direct that the parties set aside four (4) days for face-to-facecollective bargaining in the next twenty-one (21) calendar day period with a view toconcluding a collective agreement for Trail. Assuming collective bargaining isconducted in good faith and every reasonable effort is made to conclude a collectiveagreement over the course of those four (4) days, I anticipate the parties will either haveconcluded a collective agreement or have reached an impasse and will have laid theground work for whatever comes next, be it a last offer vote, a strike, a lockout, or aclosure. Given that the Union and the Franchisor have been down a similar path in twoprior sets of negotiations, I am confident they can apply at least some of what they havelearned previously to bring the Trail negotiations to an orderly, constructive andexpeditious resolution.2010 CanLII 58300 (BC LRB)60 With regard to the Union's complaint under Section 52, I am not persuaded theEmployer's bargaining representatives lack the authority to bargain a collectiveagreement in B.C. Instead, I have concluded that any apparent limitation on theirauthority arises from the approach they have taken to collective bargaining. I amconfident the Employer is aware of its obligations under Section 52 of the Code, and willensure that its representatives have the requisite authority to agree to counterproposalsthat the Employer reasonably believes are consistent with its interests and objectives.61 I also decline to grant the Union's request that the dispute be submitted tointerest arbitration. I see no basis on the facts before me to entertain such relief, evenassuming—which I do not—that I would have the jurisdiction to make such an order.The parties must deal with the substance of the matters in dispute between them. Theirindustry obviously faces enormous competitive pressures. The process of collectivebargaining I have outlined provides at least some basis—consistent with Sections 2 and11 of the Code—for the substance of those issues to be addressed in a mannerconducive to resolution of their dispute. If it does not, the parties have othermechanisms at their disposal to bring their collective bargaining negotiations to aresolution.

- 17 - BCLRB No. B175/2010V. CONCLUSION62 I find the Employer has failed to make every reasonable effort to conclude acollective agreement at Trail. I direct the parties meet for face-to-face collectivebargaining for four (4) days (in their usual manner) in the next twenty-one (21) calendarday period with a view to concluding a collective bargaining agreement. While neitherparty is required to compromise their interests, they must engage in a rationaldiscussion of the matters in dispute, including consideration of reasonablecounterproposals, at least insofar as such counterproposals may provide a means bywhich their respective interests might otherwise be satisfied. The parties may by mutualagreement abridge the four (4) day period stipulated.63 I find the Employer has not failed to ensure that its collective bargainingrepresentatives have the authority to bargain collectively as required by Section 52 ofthe Code.2010 CanLII 58300 (BC LRB)LABOUR RELATIONS BOARD"MICHAEL J. ADAM"MICHAEL J. ADAMVICE-CHAIR