Partridge v. Botony Dental Corp., 2015 ONCA 836

• Judge: Laskin, Pardu and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 26, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 836;(2015), 344 O.A.C. 29 (CA)

Partridge v. Botony Dental Corp. (2015), 344 O.A.C. 29 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.007

Lee Partridge (plaintiff/defendant by counterclaim/respondent) v. Botony Dental Corporation (defendant/plaintiff by counterclaim/appellant)

(C59777; 2015 ONCA 836)

Indexed As: Partridge v. Botony Dental Corp.

Ontario Court of Appeal

Laskin, Pardu and Roberts, JJ.A.

December 3, 2015.

Summary:

The plaintiff sued her former employer for damages and declarations arising from the alleged wrongful termination of her employment as an office manager and a dental hygienist. The pecuniary claims of the plaintiff were $70,000, representing a notice period of 12 months, and $30,000 for breach of her human rights. The defendant asserted that it had just cause to dismiss the plaintiff.

The Ontario Superior Court, in a decision reported at 2015 ONSC 343, allowed the action and awarded the plaintiff 12 months' pay in lieu of notice, $20,000 for discrimination based on family status and costs on a substantial indemnity scale. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 988

Discrimination - Employment - On basis of family, civil or marital status - When Partridge returned from maternity leave, Botony Dental Corp. demoted her from her former position of officer manager, which she had held for four years, to her original position of dental hygienist, with reduced hours and pay - Partridge objected and reminded Botony of its obligations under the Employment Standards Act to return her to her former position - Botony did not return Partridge to her former position, deliberately increased her working hours knowing that the change would create a conflict with her children's day care pick-up schedule, and then terminated her employment, ostensibly for cause - The trial judge allowed Partridge's wrongful dismissal action and awarded her, inter alia, $20,000 for discrimination based on family status (Human Rights Code, s. 46.1(1)) - Botony appealed the finding of discrimination and the award of $20,000 - The Ontario Court of Appeal dismissed the appeal - While on the high end, the award was within the range supported by the case law and by the trial judge's findings of Botony's misconduct - The trial judge concluded that Botony's unlawful actions amounted to discriminatory treatment because of Partridge's family status, including, but not limited to, her childcare obligations - Botony's actions caused injury to Partridge's dignity, feelings and self-respect - They also materially affected her family's economic security - The findings were amply supported by the evidence - See paragraphs 19 to 27.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - [See Civil Rights - Topic 988 ].

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - [See Civil Rights - Topic 988 ].

Master and Servant - Topic 7550

Dismissal or discipline of employees - Grounds - Cause or just cause defined - When Partridge returned from maternity leave, Botony Dental Corp. demoted her from her former position of officer manager, which she had held for four years, to her original position of dental hygienist, with reduced hours and pay - Partridge objected and reminded Botony of its obligations under the Employment Standards Act to return her to her former position - Botony did not return the Partridge to her former position, deliberately increased her working hours knowing that the change would create a conflict with her children's day care pick-up schedule, and then terminated her employment, ostensibly for cause - The trial judge allowed Partridge's wrongful dismissal action - Botony appealed, asserting that Partridge's removal of two patient day sheets from its premises constituted just cause for immediate dismissal - Further, the steps taken by Partridge to set up a competing business filled out the context in which the breach should be assessed - The Ontario Court of Appeal dismissed the appeal - While the trial judge correctly determined that the removal of the records was a breach of Partridge's employment obligations, she accepted that Partridge's motivation was to secure evidence of her reduced hours in response to Botony's reprisals - The judge found that there was no evidence that any confidential information was disclosed to third parties - There was no evidence of harm to patients or to Botony - There was no evidence that Partridge still retained the records - In those circumstances, the judge did not err in concluding that this isolated incident did not amount to just cause, and in not ordering the return of the records to Botony - The judge's findings that Partridge did not solicit Botony's employees, patients or suppliers, that most of her planning with another employee occurred outside of the office, and that she abandoned her plans to open a competing business, were supported by the evidence - Planning to compete with one's employer was not by itself grounds for dismissal - The judge, as she was entitled to do, preferred Partridge's evidence on these issues - She found that dismissal for cause was not justified in the entire context of the employment relationship and the particular circumstances of the termination - Botony's dismissal of a senior employee with more than seven years' service and an otherwise unblemished and exemplary employment record was not warranted - See paragraphs 5 to 14.

Master and Servant - Topic 7553

Dismissal or discipline of employees - Grounds - Misconduct or misconduct of business - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 7582

Dismissal or discipline of employees - Grounds - Conduct incompatible with employer's interests - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 7585

Dismissal of employees - Grounds - Threatening or planning to open competing business - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - Within a week of Partridge's return from maternity leave, Botony Dental Corp. terminated her employment as an officer manager and dental hygienist, ostensibly for cause - Partridge had held the position of officer manager for four years - The trial judge allowed Partridge's wrong dismissal action and awarded her, inter alia, 12 months' pay in lieu of notice - The Ontario Court of Appeal held that the 12 month notice period was reasonable in the circumstances - Partridge was wrongfully terminated after over seven years of faithful service - In her role as office manager; she was the most senior employee and held the position of greatest responsibility - At the time of her dismissal, she was a highly skilled, 36 year old dental hygienist - However, by the time of trial, some three years post termination, while she had obtained part-time employment within about a month of termination, she was unable to find comparable full-time employment, notwithstanding her very diligent efforts - That was not surprising given Botony's wrongful actions - Partridge then had to look for employment with Botony's very serious allegations of dishonesty, disloyalty and other improprieties hanging over her head - It was to her credit that she was able to relatively quickly find some work in her field - See paragraphs 15 to 18.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - [See Master and Servant - Topic 8000 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - A trial judge allowed a wrongful dismissal action and awarded the plaintiff costs on a substantial indemnity scale - The Ontario Court of Appeal dismissed the defendant's appeal, stating that "... there is no basis for setting aside the substantial indemnity award of costs to the respondent. The respondent's offer to settle was well below the amount of the judgment awarded to her. Moreover, the appellant's unproven allegations against the respondent of the most serious kind of employee misconduct also support an award of costs on the substantial indemnity scale." - See paragraph 28.

Practice - Topic 7462.1

Costs - Solicitor and client costs - Entitlement to - Unproven allegations of dishonest or improper conduct (incl. malice) - [See Practice - Topic 7243 ].

Cases Noticed:

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 7].

Dowling v. Workplace Safety and Insurance Board (Ont.) (2004), 192 O.A.C. 126; 246 D.L.R.(4th) 65 (C.A.), refd to. [para. 7].

Bardal v. The Globe and Mail Ltd., [1960] O.W.N. 253; 24 D.L.R.(2d) 140 (H.C.), refd to. [para. 16].

Canada (Attorney General) v. Johnstone et al. (2014), 459 N.R. 82; 372 D.L.R.(4th) 730, 2014 FCA 110, refd to. [para. 20].

SMS Equipment Inc. v. Communications Energy and Paperworkers Union, Local 707, [2015] 8 W.W.R. 779; 2015 ABQB 162, refd to. [para. 20].

Counsel:

Joe Conforti, for the appellant;

Michael D. Wright, for the respondent;

Christopher Perri, for the respondent.

This appeal was heard on November 26, 2015, by Laskin, Pardu and Roberts, JJ.A., of the Ontario Court of Appeal. Roberts, J.A., released the following judgment for the court on December 3, 2015.