FAQ's Cases - Stewart McKelvey

More documents

Recommendations

Info

CITATION: Chartrand v. R. W. Travel Limited, 2011 ONSC 2148COURT FILE NO.: 24015/07DATE: 20110405ONTARIOSUPERIOR COURT OF JUSTICEB E T W E E N: ))SUSAN CHARTRAND ) Michael C. Allemano, for the Plaintiff)))Plaintiff ))- and - )))R.-W. TRAVEL LIMITED ) Brian L. DeLorenzi, for the Defendant)))Defendant )))) HEARD: December 6, 7, 8, 2010 andJanuary 25, 26, 20112011 ONSC 2148 (CanLII)D E C I S I O NWILCOX, J.[1] BACKGROUNDThe defendant company is incorporated pursuant to the laws of Ontario and carries on businessas a travel agency in Sault Ste. Marie, Ontario. It is owned and operated by Walter Pozniak andRoberta Pozniak who are husband and wife.
- 2 -[2] The plaintiff, Susan Chartrand, age 59, began working for the defendant in January, 1990as a travel consultant. She was off work on what is referred to as a “stress leave” from May 31,2006 to October 10, 2006 when she returned to work. Coincident with returning to work, shepresented the Pozniaks with a document dated October 4, 2006 entitled “Expectation on return towork at Carlson Wagonlit Global Travel on October 10, 2006”. It will be referred to in short asher “Expectations”. It is common ground that a meeting between the defendant’s staff, includingthe plaintiff, and the Pozniaks was held on February 22, 2007. The plaintiff’s employment withthe defendant ended on March 1, 2007 when she tendered her resignation. She subsequentlybrought this action for damages, alleging that she was constructively dismissed from her job.She also claimed for vacation pay allegedly owed to her. For reasons that follow, I dismiss theclaim for constructive dismissal, but allow the claim for vacation pay.2011 ONSC 2148 (CanLII)[3] The trial of this matter began on December 6 th , 2010 and extended over several days inDecember, 2010 and January, 2011, ending on January 26, 2011.[4] At the outset, the plaintiff’s counsel moved for and obtained on consent an orderamending the Statement of Claim adding the following as paragraph 22 of the Statement ofClaim: The plaintiff was subjected to harassment by Roberta Pozniak and Walter Pozniak, theprincipals of the defendant during her course of employment with the defendant and suffereddamages arising from this workplace harassment.[5] The title of proceedings was also amended on consent to change the defendant’s namefrom R & W Travel Limited to R.-W. Travel Limited.[6] LAW OF CONSTRUCTIVE DISMISSAL[7] It is helpful before reviewing the evidence to know the test for constructive dismissal. InShah and Xerox Canada Ltd. [2007] O.J. No. 849, the Ontario Court of Appeal agreed with thetrial decision of Cullity J. that the court may find that an employee has been constructivelydismissed without identifying a specific fundamental term (of the employment contract) that hasbeen breached, where the employer’s treatment of the employee makes continued employmentintolerable. In the trial decision, [1998] O.J. No. 4349, Cullity J. said at para. 38:“Where the conduct of management personnel is calculated to cause anemployee to withdraw from employment, it may, in my judgment, amountto constructive dismissal. The test, I believe, is objective: it is whether theconduct of the manager was such that a reasonable person in thecircumstances should not be expected to persevere in employment. As theparticular circumstances are crucial, each case must be decided on its ownfacts. The test should not be lightly applied. An employer is entitled to be
Page 1 and 2: The Labour Relations BoardSaskatche
Page 3 and 4: 3unionized workforce at their plant
Page 5 and 6: 5[15] In addition, there was some h
Page 7 and 8: 7Employee “D”: He was on his pr
Page 9 and 10: 9[37] The Board did not have the be
Page 11 and 12: 11[48] Shortly after Mr. Copeland b
Page 13 and 14: 13credible reason for the disciplin
Page 15 and 16: 15outlined by the Board in RWDSU v.
Page 17 and 18: 173. Order for captive audience mee
Page 19 and 20: 19for his failure to produce the wi
Page 21 and 22: 21[95] Similarly as noted in the qu
Page 23 and 24: 23[103] Also, in The Newspaper Guil
Page 25 and 26: 25rights under the Act. The Employe
Page 27 and 28: 27The determination of whether, in
Page 29 and 30: 29respect to the section of the Alb
Page 31 and 32: 31meetings, would have been within
Page 33: 33[143] In respect of the complaint
Page 37 and 38: - 4 -by the time she finished there
Page 39 and 40: - 6 -[24] Testimony was received fr
Page 41 and 42: - 8 -would feel grateful for the fo
Page 43 and 44: - 10 -[49] 2. Comfortable, even tem
Page 45 and 46: - 12 -[67] Another complaint was th
Page 47 and 48: - 14 -bottom of the problem and the
Page 49 and 50: - 16 -member about something amusin
Page 51 and 52: - 18 -[111] Given that the meeting
Page 53 and 54: - 20 -[130] Some of the plaintiff
Page 55 and 56: - 22 -[146] The plaintiff’s expla
Page 57 and 58: COURT OF APPEAL FOR ONTARIOBETWEENC
Page 59 and 60: Page: 3[5] In his application, the
Page 61 and 62: Page: 5(c) By the Employer at any t
Page 63 and 64: Page: 7continuation, in the amount
Page 65 and 66: Page: 9D. ANALYSIS[23] It is well-s
Page 67 and 68: Page: 11[28] The appellant submits
Page 70 and 71: Page: 14[37] When parties contract
Page 72 and 73: Page: 16addressing the issue of a c
Page 74 and 75: Page: 18application of mitigation:
Page 76 and 77: Page: 202008 ONCA 479, 91 O.R. (3d)
Page 78 and 79: Page: 22[56] Notably, the concern e
Page 80 and 81: Page: 24termination without cause,
Page 82 and 83: Page: 26[64] The costs on the appli
Page 84 and 85:
The parties agree this Board has th
Page 86 and 87:
Mr. Wallace. The evidence is that M
Page 88 and 89:
Mr. Mutter and Mr. Wallace each tes
Page 90 and 91:
Mutter spoke. He testified he was a
Page 92 and 93:
saw (or was told by the crew) Mr. K
Page 94 and 95:
and heard, as well as other factors
Page 96 and 97:
When viewed in that light, it is fa
Page 98 and 99:
IN THE SUPREME COURT OF BRITISH COL
Page 100 and 101:
Balogun v. Deloitte & Touche, LLP P
Page 102 and 103:
Page 104 and 105:
Page 106 and 107:
Page 108 and 109:
Page 111 and 112:
Page 113 and 114:
Page 2of the immediate problem that
Page 115 and 116:
Page 4- He admitted that he had pla
Page 117 and 118:
Page 626 26. The Grievor's conduct
Page 119 and 120:
Page 8he had a problem with was fro
Page 121 and 122:
Page 10supervisor. Counsel argued t
Page 123 and 124:
Page 12hope to gain a financial ben
Page 125 and 126:
Page 1483 83. McKinley is an import
Page 127 and 128:
Page 16(iv)Has the employer attempt
Page 129 and 130:
HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 131 and 132:
[1] This is an Application under se
Page 133 and 134:
[10] Sean McKay also testified on b
Page 135 and 136:
THE LAW[19] Section 5 of the Code p
Page 137 and 138:
that ensued. There is no evidence t
Page 139 and 140:
HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 141 and 142:
[1] The applicant has filed two App
Page 143 and 144:
CHRONOLOGY OF KEY EVENTS[11] The ap
Page 145 and 146:
tasks beyond his functional limits
Page 147 and 148:
do what they can and that if someon
Page 149 and 150:
checking summaries before stating t
Page 151 and 152:
Roehl in June or to the respondent
Page 153 and 154:
Section 10 of the Code defines hara
Page 155 and 156:
was assigned duties that required h
Page 157 and 158:
-last portion of the day he levels
Page 159 and 160:
[66] I recognize that some of the c
Page 161 and 162:
was made aware on May 22/07 that hi
Page 163 and 164:
“To be honest Tony I don’t know
Page 165 and 166:
is older, or believed that the appl
Page 167 and 168:
[91] The applicant also submitted t
Page 169 and 170:
steps to address allegations of dis
Page 171 and 172:
this period lessening, in my view,
Page 173 and 174:
[109] The respondent submits that i
Page 175 and 176:
that the events of May 22 may have
Page 177:
Accordingly, I am requiring the par
show all

FAQ's Cases - Stewart McKelvey

Create successful ePaper yourself

Delete template?

Save as template?