HomeMy WebLinkAboutMorana 14-03-21IN
THE
MATTER
OF
AN
ARBITRATION
BETWEEN:
TERANET
INC.
AND:
OPSEU,
LOCAL
507
GRIEVANCE:
GRIEVANCE
OF
DOROTA
MORANA
SOLE
ARBITRATOR
O.B.
Shime,
Q.C.
APPEARANCES:JULIE
O’DONNELL
Counsel,
and
others,
for
the
Employer
TIM
HANNIGAN
Counsel,
and
others,
for
the
Union
Hearings
in
this
matter
were
held
at
Toronto
on
January
10,
11
&
12,
May29
&
30,
June
28,
July26
&
27,
August
9,
September
21
&
24,
October
29,
December
5
&
12,
2012
and
February
12
&
13,
April
4,
June
19
and
July
18,
2013.
DATED
at
Toronto,
this
21st
day
of
March,
2014.
-2-
INDEX
Page
No.
Evidence
3
Argument
90
Legal
Analysis
120
Legal
Analysis
—
Canadian
Case
Law
132
Legal
Analysis
—
The
Collective
Agreement
(i)
Contract
Principles
156
Legal
Analysis
—
The
Collective
Agreement
(ii)
Remedial
Authority
of
the
Arbitrator
160
Evidentiary
Analysis—Harassment
170
Medical
Evidence
193
Compensation
—
Mitigation
206
conclusion
213
-2-
INDEX
Page
No.
Argument
90
Legal
Analysis
120
Legal
Analysis
—
Canadian
Case
Law
132
Legal
Analysis
—
The
Collective
Agreement
(i)
Contract
Principles
156
Legal
Analysis
—
The
Collective
Agreement
(ii)
Remedial
Authority
of
the
Arbitrator
160
Evidentiary
Analysis
—
Harassment
170
Medical
Evidence
193
Compensation
—
Mitigation
206
Conclusion
213
-3-
AWARD
In
this
matter
the
Grievor,
Dorota
Morana,
claims
that
Teranet
Inc.,
the
Employer,
violated
the
collective
agreement
by
intimidating
her,
discriminating
against
her,
refusing
her
sick
leave
benefits
and
terminating
her
without
just
cause.
She
seeks
reinstatement,
payment
of
lost
wages
and
benefits
and
transfer
to
another
location.
Since
filing
the
grievance,
the
project
for
which
the
Grievor
was
employed
has
come
to
an
end
and
therefore
her
claim
is
for
compensation
only.
However,
she
also
claims
that
she
has
been
harassed
and
claims
damages
for
mental
distress
and
punitive
damages.
The
facts
leading
up
to
the
termination
and
the
harassment
claim
are
as
follows.
Elgin
Farewell,
the
Vice-President
of
Electronic
Search
and
Registration,
testified
that
Teranet
was
responsible
to
automate
and
operate
the
land
registry
records
under
contract
with
the
Province
of
Ontario
and
the
Grievor,
who
was
a
Title
Certification
Analyst
(TCA),
was
responsible
for
doing
title
searches
and
entering
key
information
into
the
system.
Both
the
productivity
and
quality
of
a
TCA’s
work
is
important.
Mr.
Farewell
was
contacted
by
Susan
Steer,
the
Human
Resources
Manager,
-4-
shortly
after
Ms.
Steer
had
a
meeting
with
the
Grievor
to
address
some
attendance
issues.
According
to
Ms.
Steer,
the
Grievor
became
upset
and
subsequently
left
the
workplace.
Ms.
Steer
was
concerned
about
the
Grievor
and
she
also
had
a
discussion
with
Miles
Argue,
a
Union
representative,
about
her
meeting
with
the
Grievor.
According
to
Mr.
Farewell,
the
Grievor
was
on
his
radar
because
of
concerns
about
her
work
performance.
The
Grievor
had
been
on
a
performance
plan
from
January
4,
2007
to
January
7,
2008
because
of
her
substandard
performance
which
had
previously
come
to
Mr.
Farewell’s
attention
as
part
of
management’s
review.
Mr.
Farewell
stated
that
Teranet
provides
training
and
a
great
deal
of
support
for
employees
and
most
employees
were
successful.
However,
the
Grievor’s
production
results
were
not
tracking
well
according
to
the
standards
that
Teranet
had
in
place
for
employee
performance.
Ms.
Steer
advised
Mr.
Farewell
of
her
c6ncern
that
the
Grievor
was
working
in
real
estate
which
concerned
Mr.
Farewell
because
of
a
possible
conflict
of
interest
since
employees
could
inappropriately
access
Teranet’s
data.
Teranet
has
a
conflict
of
interest
policy
in
place
for
an
employee
who
-5-
chooses
to
work
for
another
organization,
which
requires
the
employee
to
provide
a
written
declaration
if
the
employee,”...
is
directly
or
indirectly
involved
in
another
business
or
employment
which
may
give
rise
to
a
conflict,
or
appearance
of
conflict,
or
a
potential
conflict
of
interest
..
.
“.
The
Grievor
had
signed
such
a
declaration
on
December
6,
2007
in
which
she
stated
that
she
was
a
real
estate
representative
for
Royal
LePage
and
agreed
to
refrain
from
certain
activities
on
Teranet’s
time.
Mr.
Farewell
was
in
the
process
of
reviewing
the
Grievor’s
performance
and
attendance/tardiness
rate
and
was
prepared
to
discipline
her
when
she
left
the
workplace
on
September
17,
2008
claiming
that
she
was
going
on
stress
leave.
Mr.
Farewell
had
a
number
of
concerns
about
the
Grievor,
including
a
second
place
of
employment,
working
on
company
time
for
another
employer,
absenteeism,
lateness,
and
performance
quality
issues.
The
Grievor
had
run
out
of
vacation
time
and
personal
time.
Also,
because
of
the
Grievor’s
defensive
and
challenging
attitude
at
her
meeting
with
Susan
Steer
and
because
of
the
intervention
df
Miles
Argue,
the
Union
President
after
that
meeting,
Susan
Steer
refused
to
meet
with
the
Grievor
alone,
which
concerned
Mr.
Farewell.
-6-
Because
of
these
various
concerns,
Mr.
Farewell
took
the
unusual
step
of
requesting
the
Grievor’s
emails
be
reviewed,
which
he
did
not
do
lightly.
The
emails
demonstrated
that
prior
to
signing
the
December
6,
2007
declaration,
the
Grievor
had
been
conducting
business
on
company
time
which
she
claimed
not
to
have
done.
Accordingly,
Mr.
Farewell
arranged
for
a
private
investigation
to
conduct
surveillance
of
the
Grievor,
between
September
23,
2008
to
September
27,
2008.
It
appeared
from
the
surveillance
that
the
Grievor
was
conducting
other
business
while
she
purported
to
be
on
stress
leave.
The
Grievor
was
observed
attending
the
land
registry
office
on
September
23,
2008
and
attending
the
offices
of
Royal
LePage
and
talking
to
her
husband,
who
is
also
a
real
estate
representative
at
Royal
LePage.
She
was
carrying
papers
and
subsequently
attended
at
a
printing
shop.
On
September
27,
2008
the
Grievor
conducted
an
open
house
in
connection
with
the
sale
of
a
property.
On
September
26,
2008,
Mr.
Farewell
was
advised
of
the
following
email
from
the
Grievor
to
Susan
Steer
and
an
attachmnt.
“Hi
Susan.Please
see
the
attached
letter.
Please
be
advised
that
Miles
Argue
will
be
my
union
representative
in
this
matter.
-7-
Also,
I
went
to
my
doctor
last
night
for
my
follow
up
visit
and
he
advised
me
to
stay
off
work
for
another
2
weeks.
At
this
point
I
was
told
to
call
his
office
on
Monday
to
schedule
the
follow
up
appointment
(I
was
advised
to
check
with
them
because
as
of
the
week
of
October
5
there
will
be
days
when
he
may
not
be
in
the
office).
I
will
advise
you
and
the
HR
department
when
this
appointment
is
to
take
place.”
“Teranet
Inc.
Attention:
Susan
Steer
Please
be
advised
that
this
letter
will
serve
as
a
complaint
against
you
resulting
from
the
events
that
took
place
last
week
and
which
are
outlined
below:
On
Wednesday,
September
10,
2008,
I
was
absent
from
the
office
due
to
family
emergency.
My
father
in
law
was
sick
and
I
found
out
about
it
very
early
in
the
morning.
At
about
5:40
a.m.,
I
left
a
message
on
Cheryl
Bryant’s
voice
mail
stating
that
I
will
not
be
coming
in
as
I
have
an
emergency
situation
to
deal
with
in
the
family.
At
the
end
of
the
message,
I
left
her
my
cell
phone
number,
as
this
is
something
I
habitually
do
when
I
leave
a
message
for
people.
At
9:20
a.m.,
I
received
a
voice
mail
message
from
you
on
my
cell
phone
telling
me
to
call
you
back
at
the
office.
I
did
not
call
back,
as
I
was
quite
pre
occupied
with
the
emergency
situation
in
my
family.
Then,
at
about
1:30
p.m.,
your
phone
number
showed
up
on
my
cell
phone’s
call
display
‘again.
This
time
you
left
no
message.
Given
the
circumstances
I
was
dealing
with,
I
found
this
to
be
quite
upsetting.
I
could
not
understand
the
purpose
of
your
calls
knowing
very
well
that
I
left
Cheryl
a
message
explaining
why
I
could
not
come
to
work
that
day
and
I
was
certainly
not
in
a
position
to
discuss
my
family
circumstances
with
a
non-family
-8-
member.
In
fact,
I
had
no
time
to
discuss
the
events
of
that
day
with
anybody.
Therefore,
I
found
these
calls
to
be
totally
inappropriate
and
harassing.
This
was
just
an
unjustifiable
intrusion
into
my
personal
life.
On
Thursday,
September
11,
I
went
back
to
work
and
Cheryl
Bryant
did
not
comment
on
the
events
of
the
previous
day.
As
it
turns
out,
you
were
not
in
the
office
that
day.
On
Friday
you
were
back
on
the
office,
but
you
did
not
make
any
contact
with
me
regarding
your
Wednesday’s
phone
calls.
You
made
no
effort
to
come
by
my
desk
or
email
me
to
ask
me
if
everything
was
okay
with
me.
It
was
business
as
usual.
On
Monday,
September
16,
2008,
at
around
8:40
a.m.,
I
received
an
email
message
from
you.
It
was
a
very
short
message
with
a
subject
line
saying:
please
come
see
me.
I
decided
to
wait
for
the
union
rep,
Scott
Fergusson
who
comes
in
at
9
and
let
him
know
about
it.
Unfortunately,
I
did
not
get
that
chance.
Within
a
couple
of
minutes
of
sending
this
email
to
me
you
were
standing
in
front
of
my
desk
asking
me
to
go
to
your
office.
I
was
quite
shocked
with
your
immediate
visit
to
my
desk
but,
I
decided
to
cooperate
and
I
followed
you
to
the
office
without
the
union
rep.
Once
in
your
office,
you
started
telling
me
that
as
a
result
of
my
absence
on
Wednesday,
I
did
not
have
enough
hours
accumulated
in
my
time
sheet
to
be
paid
for
that
whole
day.
I
explained
to
you
that
as
per
my
voice
mail
message
to
Cheryl,
I
had
to
deal
with
an
unexpected
family
emergency.
In
response,
you
mentioned
that
you
tried
to
call
me.
At
this
point,
I
told
you
that
your
phone
calls
did
upset
me
a
lot
because
of
what
I
had
to
deal
with
and
I
did
not
want
to
be
bothered
with
phone
calls
on
that
day
from
anybody.
In
fact,
I
repeated
this
to
you
many
times
during
this
meeting.
I
told
you
I
did
not
-9-
understand
the
purpose
of
your
calling
me
twice.
Your
tone
of
voice
changed
drastically.
From
this
moment
your
responses
were
very
angry.
You
told
me
“that
frankly,
you
do
not
understand
why
I
am
being
so
defensive
about
this
whole
situation”.
You
then
reminded
me
that
I
don’t
have
enough
time
accumulated
in
my
time
sheet
and
I
responded
to
you
by
saying
I
was
aware
of
this.
In
fact,
I
reminded
you
that
we
had
this
conversation
after
I
came
back
from
my
vacation
in
August.
You
stated
that
you
think
I
have
some
issues
going
on
and
I
seem
to
be
very
distracted
at
work
all
the
time.
This
was
very
personal
and
very
upsetting.
At
that
point,
I
got
up
and
told
you
that
this
conversation
was
over
and
if
you
wish
to
continue,
it
would
have
to
be
in
the
presence
of
the
union
representative.
I
told
you
I
did
not
want
this
conversation
to
continue
because
of
the
tone
of
voice
you
were
speaking
to
me
with.
Your
behavior
was
very
aggressive
towards
me.
This
was
very
intimidating
and
I
did
not
feel
comfortable
with
you
in
the
office
alone.
Once
this
conversation
ended,
I
headed
back
to
my
desk
in
tears.As
you
recall,
in
the
past
we
had
a
meeting
with
a
union
representative
regarding
your
investigation
into
my
personal
life
and
I
trusted
that
that
meeting
resolved
the
problem
and
I
was
hoping
to
be
left
alone.
I
believe
you
are
trying
to
find
anything
in
my
personal
life
(again)
and
link
it
to
my
work.
It
is
intrusive
and
it
contributes
to
my
escalating
stress
at
work.
I
always
give
100%
to
my
work,
but
I
believe
that
your
intntions
here
are
leading
to
my
constructive
dismissal.
I
remain,”
Mr.
Farewell
felt
the
letter
was
inconsistent
and
self-serving;
it
was
the
first
-10-
time
that
he
heard
that
Ms.
Steer
was
over-managing.
Also,
the
description
of
Ms.
Steer’s
conduct
was
not
in
accord
with
Ms.
Steer’s
usual
demeanor.
When
he
discussed
the
matter
with
Ms.
Steer,
he
was
told
that
Miles
Argue
would
support
her
and
that
Miles
would
confirm
that
when
he
spoke
to
her
she
was
calm.
Mr.
Farewell
was
of
the
opinion
that
Ms.
Steer
did
not
mishandle
the
situation
and
decided
to
request
the
Grievor
to
attend
a
meeting
to
discuss
the
results
of
Teranet’s
investigation,
the
Grievor’s
emails,
her
letter
to
Ms.
Steer
and
the
reasons
that
Teranet
was
questioning
her
absence.
On
September
29,
2008,
Susan
Steer
responded
to
the
Grievor’s
email
as
follows:“Thank
you
for
your
letter
dated
September
22,
2008,
and
I
acknowledge
receipt
of
the
letter
on
September
26,
2008.
I
disagree
with
the
contents
of
your
letter.
All
and
any
actions
I,
and
the
company,
have
taken
to
date
are
in
accordance
with
my
rights
as
an
employer.
At
thi&
stage
we
question
the
bona
fide
nature
of
your
current
absence.
We
have
therefore
suspended
sick
leave
benefit
coverage
and
all
payments
effective
immediately.
I
am
requesting
you
to
attend
a
meeting
to
provide
the
opportunity
to
discuss
the
situation
on
October
2
at
9
a.m.
at
I
Adelaide
Street,
6th
Floor.
Please
ask
for
Chris
Yankou
at
reception.”
—11—
Mr.
Farewell
testified
that
the
Grievor’s
sick
leave
benefits
were
suspended
because
of
his
belief
that
she
was
working
at
another
job
as
a
real
estate
agent
and
her
absence
was
not
bona
fide.
On
September
30,
2008
the
Grievor
wrote
the
following
letter
to
Susan
Steer:“I
am
in
receipt
of
your
letter
dated
September
29,
2008.Please
note
that
I
went
to
my
doctor
on
September
17,
2008,
and
subsequently
my
doctor
advised
me
to
stay
off
work
due
to
stress
and
anxiety.
At
the
time
I
was
provided
with
a
note
and
was
advised
to
follow
up
with
him
the
following
week.
The
next
day,
Thursday,
I
left
a
message
for
Cheryl
Bryant
explaining
my
absence.
I
then
communicated
with
Paul
Cannis
of
Human
Resources
who
advised
me
that
all
he
required
was
to
original
note
from
my
doctor
and
he
asked
that
this
form
be
mailed
to
him
together
with
a
note
stating
when
my
next
appointment
was
going
to
take
place.
He
reassured
me
that
this
is
a
sufficient
proof
for
the
H.R.
department
to
pay
me
for
my
sick
days.
I
informed
him
that
my
appointment
was
scheduled
for
Thursday,
September
25
at
7
p.m.
On
Thursday,
September
25,
I
went
to
my
follow
up
appointment
with
my
doctor
and
I
was
issued
another
note
stating
that
I
am
to
stay
off
work
and
that
I
am
to
follow
up
with
him
in
2
weeks’
time.
On
Friday,
September
26,
I
received
a
call
from
you
-
12
-
in
the
morning
asking
for
my
email
address.
When
asked
why
you
would
need
it,
you
answered
that
you
are
sending
me
a
form
that
I
needed
to
fill
out
with
respect
to
my
sick
leave.
I
mentioned
to
you
that
Paul
Cannis
had
told
me
that
all
Human
Resource
needed
was
a
doctor’s
note.
At
that
point
you
told
me
that
I
needed
to
fill
out
this
form
because
I
have
now
used
up
my
sick
days
and
my
absence
was
extending
into
a
short
term
disability.
You
asked
me
to
complete
it
the
same
day
and
send
it
to
Chris
Yandou.
I
received
your
email
later
that
day
only
to
find
out
that
it
is
to
be
completed
by
my
physician,
not
myself.
As
my
doctor’s
office
is
always
closed
on
Fridays,
I
left
a
message
for
both
Chris
Yankou
and
Paul
Cannis
asking
for
their
instructions.
Chris
returned
my
all
the
same
day
and
assured
me
that
it
is
ok
if
the
form
is
not
received
by
Teranet
on
Friday
and
he
asked
me
to
go
to
my
doctor
on
Monday.
I
followed
up
with
Chris
via
email
confirming
that
I
will
be
going
to
my
doctor
on
Monday
with
the
form.
Also,
subsequently
to
our
conversation,
I
sent
you
an
email
stating
that
I
did
go
to
my
doctor
the
night
before
and
I
was
advised
by
him
to
stay
off
work.
I
stated
in
my
email
that
I
would
advise
you
of
my
next
doctor’s
appointment.
On
Monday,
September
29,
2008,
I
went
to
my
doctor
to
fill
out
the
form.
Shortly
after
I
got
home,
a
courier
company
arrived
with
your
letter
stating
that
you
are
terminating
my
sick
leave
benefits
despite
the
fact
that
Chris
Yankou
advised
me
to
go
to
my
doctor
on
Monday.
Given
that
I
have
complied
with
the
HR
advice
and
I
did
my
best
to
get
the
form
filled
out
on
Monday
(as
indicated
in
my
email
to
Chris).
I
cannot
understand
the
justification
of
your
decision
t
terminate
my
sick
leave
benefits
and
am
requesting
that
they
be
restored
immediately
(including
any
back
payments
-13-
owed
between
termination
and
restoration).”
On
October
1,
2008,
Susan
Steer
sent
the
following
email
to
the
Grievor:
“I
acknowledge
receipt
of
your
email
dated
September
30,
2008.
The
timing
of
your
sick
notes
is
not
the
principal
matter
of
concern.
However,
I
would
note
that
both
Chris
Yankou
and
Paul
Cannis
have
a
different
recollection
of
their
conversation
with
you
and
indicate
that
you
were
in
fact
asked
to
return
the
note
as
soon
as
possible.
What
is
at
issue
is
we
believe
you
are
able
to
work
and
that
you
should
be
at
the
office
doing
your
job.
I
have
indicated
we
will
be
flexible
with
the
meeting
date
but
the
meeting
is
an
opportunity
for
you
to
explain
why
it
is
you
are
not
at
work
in
light
of
why
we
think
you
are
to
be
here.
The
conversation
is
with
you
and
while
you
are
fully
entitled
to
union
representation
the
conversation
is
not
with
the
union.
As
such
the
meeting
will
only
proceed
if
you
are
present,
and
if
you
are
not,
I
will
duly
consider
the
situation
without
your
input.”
The
Grievor
replied
on
October
2,
2008,
by
email
as
follows:
“I
would
like
to
reiterate
what
I
mentioned
in
my
September
30
message
and
that
is
I
am
not
able
to
attend
this
meeting
as
I
am
following
my
doctor’s
advice
to
stay
off
work.”
On
October
8,
2008,
the
Grievor
sent
the
following
email
to
Chris
Yankou
at
Teranet:
-
14
-
“Hi
Chris.Just
wanted
to
let
you
know
that
I
went
for
my
follow
up
appointment
with
my
doctor
yesterday
and
he
advised
me
to
stay
off
work.
At
the
same
time
I
am
to
follow
up
with
him
once
again
next
week.
Thank
you.”
Mr.
Farewell
decided
to
terminate
the
Grievor
because
of
her
pattern
of
absenteeism
and
lateness
which
was
documented,
conducting
business
on
Teranet’s
time
while
claiming
she
had
not
done
so,
her
poor
performance,
her
wrongful
allegations
of
harassment
against
Susan
Steer
which
Mr.
Farewell
felt
were
inconsistent
with
his
ten
years
of
knowledge
of
and
experience
working
with
Ms.
Steer,
the
input
of
other
employees
who
were
consulted
and
who
had
a
different
understanding
from
the
Grievor
about
certain
events
that
had
transpired
and
the
surveillance
which
indicated
the
Grievor
appeared
to
be
capable
of
working
at
another
job
while
claiming
sick
leave
benefits
from
Teranet.
Mr.
Farewell
also
questioned
the
integrity
of
theGrievor
and
sent
the
following
letter
of
termination
to
her:
“You
have
once
again
indicated
that
you
are
unable
to
work
due
to
medical
reasons.
It
appears
obvious
to
us
that
you
are
capable
of
working
yet
you
are
choosing
not
to.
-
15-
We
expect
all
Teranet
employees
to
make
Teranet
their
priority
when
it
comes
to
employment
commitments.
As
such,
we
are
terminating
your
employment
with
Teranet
effective
immediately.
Please
see
the
attached
letter.”
“This
letter
will
advise
of
the
termination
of
your
employment,
effective
immediately,
for
cause.
As
you
know,
there
were
serious
concerns
regarding
your
performance
of
your
responsibilities.
As
these
performance
concerns
were
being
addressed,
you
left
our
offices,
removed
all
of
your
personal
belongings
and
have
subsequently
advised
us
that
you
are
on
a
medical
leave
of
absence.During
this
absence,
concerns
have
arisen
regarding
the
legitimacy
of
your
absence
and
your
conduct
during
your
absence.
We
asked
to
meet
with
you
to
discuss
these
concerns.
You
refused.
You
have
not
provided
appropriate
and
satisfactory
medical
documentation.
You
have
refused
to
respond
to
our
inquiries.
You
have
now
delivered
an
email
advising
you
will
not
be
attending
at
work,
again
for
medical
reasons,
and
again
without
supporting
medical
documentation.
You
conduct
is
unacceptable
and
is
cause
for
the
termination
of
your
employment.
Your
Record
of
Employment
will
be
delivered
to
your
home.
We
reserve
our
right
to
rely
upon
further
instances
of
misconduct
as
they
become
known
to
us.”
When
cross-examined,
Mr.
Farewell
agreed
that
he
did
not
have
direct
interaction
with
the
Grievor
and
relied
on
information
he
received
-
16
-
from
Susan
Steer
and
others.
Mr.
Farewell
was
cross-examined
about
the
Grievor’s
Personal
Performance
Review
for
the
period
January
4,
2007
to
January
7,
2008
which
was
the
Grievor’s
last
review
prior
to
her
termination
in
October
of
2008.
That
review
indicated
the
Grievor’s
personal
organization
and
time
management
were
good.
Mr.
Farewell
stated
that
time
management
did
not
include
attendance.
The
review
also
stated
the
Grievor
was
diligent
in
informing
management
when
she
comes
late.
There
was
no
direction
to
the
Grievor
to
improve
her
attendance
or
lateness.
Both
her
adaptability
to
change
and
her
ability
to
learn
were
good.
The
Grievor
had
been
off
on
maternity
leave
commencing
in
2005
and
continuing
for
most
of
2006.
On
October
25,
2007
the
Grievor
had
been
placed
on
a
performance
plan
because
her
performance
was
below
the
minimum
requirement.
The
Grievor
successfully
completed
the
plan
as
of
February
1,
2008.
Between
that
date
and
her
termination,
the
Grievor
was
not
placed
on
a
Performance
1Aanagement
Plan
which
was
the
next
step
if
her
performance
was
below
the
minimum
standard.
Nor
was
the
Grievor
disciplined
for
lateness
or
absenteeism
although
she
was
spoken
to.
Mr.
Farewell
agreed
that
the
Grievor
on
average
had
exceeded
the
Standard
Measurement
for
-17-
performance
for
the
period
January
2008
until
August
2008.
Mr.
Farewell
stated
that
employees
are
not
required
to
disclose
every
type
of
outside
employment
but
only
those
employment
situations
where
there
may
be
a
potential
conflict.
The
Grievor
signed
the
required
declaration
on
December
6,
2007
and
there
were
no
emails
involving
the
Grievor’s
real
estate
business
after
that
date.
Mr.
Farewell
conceded
that
the
Grievor’s
actual
sick
leave
in
2008
did
not
exceed
the
collective
agreement
allowance.
He
also
admitted
that
her
email
business
activity
was
between
her
and
her
husband
and
did
not
involve
clients.
He
was
not
able
to
say
with
certainty
when
the
Grievor
took
her
breaks.
Mr.
Farewell
initiated
the
surveillance
of
the
Grievor
in
September
2008.
He
was
aware
the
Grievor
was
upset,
then
left
the
workplace
and
within
a
few
days
advised
that
she
would
be
off
work.
He
speculated
that
she
was
upset
by
the
conversation
and
there
was
not
a
medical
reason
for
her
to
be
absent
from
work.
He
was
not
able
to
ascertain
the
nature
of
her
illness
from
the
doctor’s
note
nor
was
he
aware
of
her
medical
restrictions.
Mr.
Farewell
assumed
that
when
the
surveillance
showed
the
Grievor
-18-
attending
at
Service
Ontario
he
assumed
she
was
going
to
the
Registry
Office,
although
there
were
other
services
at
that
location.
Nor
was
he
aware
of
what
papers
she
was
carrying.
On
September
26,
2008,
the
Grievor
was
at
Peel
Centre
where
the
Grievor’s
husband
worked
at
a
Royal
LePage
office
and
she
had
a
conversation
with
him.
Again,
Mr.
Farewell
did
not
know
the
content
of
the
papers
she
was
carrying.
Nor
did
he
have
any
idea
what
she
did
inside
the
Color
Tech
Marketing
Store
although
he
admitted
making
an
assumption
it
was
related
to
fact
sheets
which
the
Grievor
could
use
for
an
open
house
in
connection
with
the
real
estate
business.
Mr.
Farewell
admitted
that
he
took
no
steps
to
determine
the
Grievor’s
medical
restrictions
before
initiating
surveillance.
Teranet
received
a
medical
note
from
Dr.
Jason
Black
dated
September
25,
2008
which
“advised
an
additional
two
(2)
weeks
off
from
work.
She
will
follow
up
in
another
two
(2)
weeks”.
Mr.
Farewell
believes
he
saw
that
note
after
September
25,
2008,
but
cannot
remember
exactly
when.
Teranet
had
also
received
an
earlier
note
dated
September
17,
2008,
from
Dr.
Black
indicating
she
was
advised
to
take
“a
medical
leave
from
work”
and
that
“she
will
follow
up
in
the
office
next
week”.
On
September
26,
2008,
Ms.
Steer
sent
a
sick
leave
form
to
the
Grievor
to
be
-19-
completed
that
day
and
faxed
to
Teranet.
The
Grievor
was
under
surveillance
when
the
request
was
made.
The
form
was
completed
by
Dr.
Black
and
returned
to
Teranet
on
September
30,
2008.
The
form
indicated
that
the
Grievor’s
absence
was
due
to
anxiety
and
stress
and
that
she
had
a
“decreased
concentration
and
ability
to
focus”
and
would
be
followed
up
prior
to
October
9,
2008.
Any
recommendations
for
maintaining
regular
attendance
at
work
would
“be
decided
in
[the]
follow
up”.
Mr.
Farewell
testified
that
Teranet
sought
information
in
order
to
understand
what
accommodation
might
be
made
for
an
employee
who
may
be
off
for
an
extended
period.
The
notes
from
Dr.
Black
were
the
only
medical
opinions
that
Teranet
had
concerning
the
Grievor’s
ability
to
work
at
that
time
of
her
termination.
Teranet
made
no
effort
to
follow
up
with
Dr.
Black
or
to
see
a
different
doctor.
There
are
collective
agreement
provisions
in
the
collective
agreement
for
a
medical
examination
which
includes
a
request
by
Teranet
for
a
medical
certificate
from
a
doctor
chosen
by
the
Grievor
and,
as
well,
Teranet
could
request
the
Grievor
be
referred
to
a
specialist
to
certify
“the
employee’s
fitness
for
work
or
inability
to
return
to
work,
as
the
case
may
be...”.Teranet
in
a
letter
to
the
Grievor
dated
September
29,
2008
from
-
20
-
Susan
Steer
questioned
the
bona
fide
nature
of
the
Grievor’s
current
absence,
suspended
her
sick
leave
benefits
and
requested
the
Grievor
“attend
a
meeting
to
provide
the
opportunity
to
discuss
the
situation
on
October
2.”
On
September
30,
2008,
the
Grievor
forwarded
a
letter
to
Teranet
disagreeing
with
the
decision
to
terminate
her
sick
leave
and
on
October
2,
2008,
she
advised
Teranet
that
she
was
“not
able
to
attend
this
meeting
as
I
am
following
my
doctor’s
advice
to
stay
off
work”.
Mr.
Farewell
stated
there
was
no
follow
up
with
Dr.
Black,
nor
was
the
Grievor
referred
to
a
specialist.
On
October
9,
2008,
two
letters
were
sent
to
the
Grievor
signed
by
Susan
Steer,
but
approved
by
Mr.
Farewell,
terminating
the
Grievor’s
employment.
The
letters
of
termination
stated
that
in
Teranet’s
opinion
the
Grievor
“was
capable
of
working”,
questioned
the
legitimacy
of
her
absence
and
questioning
the
appropriateness
of
the
Grievor’s
medical
documentation.
When
re-examined,
Mr.
Farewell
stated
that
the
Grievor’s
work
performance
indicated
that
development
was
required
according
to
Teranet’s
standard
ratings.
The
Grievor’s
work
was
rechecked
by
quality
control
because
the
Grievor
was
deemed
to
be
a
high
risk
employee.
Mr.
Farewell
also
testified
that
although
Teranet
plans
for
employees
being
-21-
absent
for
vacations
and
illness
that
intermittent
absenteeism
requires
Teranet
to
move
other
resources
so
that
deadlines
are
met.
The
Grievor
in
2008
had
utilized
all
her
sick
days
and
vacation
days
under
the
collective
agreement.
Mr.
Farewell
also
confirmed
that
he
checked
the
Grievor’s
emails
prior
to
her
termination
and
found
she
had
used
Teranet’s
facilities
for
non
Teranet
business.
When
he
considered
the
surveillance
reports,
Mr.
Farewell
assumed
that
the
Grievor
had
attended
the
registry
office
and
Royal
LePage
offices
for
her
own
business,
but
would
have
questioned
the
Grievor
about
his
concerns
if
she
had
come
to
the
meeting
when
asked
to
do
so
by
Teranet.
He
concluded
that
although
the
Grievor’s
doctor
had
indicated
that
she
needed
a
rest
from
work
that
she
was
working
elsewhere.Mr.
Kyle
Hotham,
a
private
investigator,
licensed
by
the
Province
of
Ontario,
assisted
in
conducting
the
surveillance
of
the
Grievor
and
documented
her
daily
activities.
He
confirmed
that
he
conducted
sârveillance
between
September
23,
2008
and
September
27,
2008,
and
prepared
the
report
that
was
filed
as
an
Exhibit
in
these
proceedings.
On
Saturday,
September
27,
2008,
he
attended
an
open
house
where
he
met
the
Grievor,
who
showed
him
the
house
and
gave
him
the
listing
-22
-
information
and
a
mortgage
sheet
for
that
house.
The
Grievor
informed
him
that
she
had
another
listing
in
Caledon.
When
cross-examined,
he
stated
that
he
typed
his
surveillance
reports
daily.
He
had
no
idea
of
the
Grievor’s
medical
condition
and
reported
what
he
observed.
He
had
no
idea
what
she
did
when
she
entered
the
different
buildings,
nor
did
he
have
any
idea
what
was
in
the
papers
she
carried.
When
he
attended
the
open
house,
the
Grievor
did
not
advise
him
who
was
responsible
for
selling
the
house.
She
showed
him
the
house,
discussed
another
listing
in
Caledon
and
provided
him
with
information.When
re-examined,
Mr.
Hotham
stated
he
saw
the
Grievor
enter
a
building
at
7765
Hawthorne
Street
on
September
23,
2008.
It
was
agreed
by
the
parties
that
at
the
open
house
at
9
Hawthorne
there
was
a
sign
that
had
the
name
of
the
Grievor
and
her
husband
advertising
the
house
for
sale.
Susan
Steer
had
been
employed
by
Teranet
for
over
six
years
in
various
capacities.
She
had
been
a
TCA
and
was
promoted
to
successive
-
23
-
positions
as
a
supervisor
then
manager
and
ultimately
the
Human
Resources
Project
Manager.
Teranet
was
automating
and
converting
all
of
the
land
registry
records
in
the
Province.
The
TCA’s
were
responsible
for
analyzing
and
ensuring
the
ownership
information
was
correct
and
that
all
relevant
documents
were
recorded
in
the
computer.
Teranet
worked
toward
a
schedule
of
completion
which
was
agreed
upon
with
the
Ministry
of
Government
Services.
There
was
a
formal
method
of
evaluation
for
employees
called
the
Standard
Measurement
which
assessed
the
available
time
for
work
completion,
whether
production
was
completed
in
that
time
and
the
quality
of
production.
The
formula
provided
a
number
of
3.4
which
was
the
threshold
for
good
performance.
Employees
who
fell
below
that
number
required
further
development.
There
was
also
an
error
rate
standard
based
on
historical
values
of
the
site
performance.
Ms.
Steer
started
to
supervise
the
Grievor
in
2006
and
the
error
rate
expectation
for
the
Grievor
was
between
nine
and
twelve
percent.
Teranet
had
a
performance
development
plan
for
employees
who
fell
below
the
standard,
which
provided
support
to
the
employee
by
a
supervisor
and
in
most
cases,
a
senior
TCA.
If
the
employee
was
not
successful
he/she
would
be
assigned
to
a
performance
management
plan
-24
-
for
two
months
to
address
their
problems.
If
not
successful
in
that
plan,
the
employee
would
be
assigned
to
a
second
performance
management
plan
for
one
month
and
if
this
second
plan
was
not
successful,
the
employee
would
be
terminated.
It
was
the
intention
of
all
the
plans
to
be
supportive
of
the
employees.The
Grievor
commenced
her
employment
on
January
4,
2005,
and
entered
a
six-month
training
program
where
she
was
not
successful.
The
Grievor
went
on
maternity
leave
in
September
2005
and
also
took
vacation
time,
returning
in
December
2006.
Ms.
Steer
supervised
the
Grievor
upon
her
return.
The
Grievor
had
not
completed
her
training
and
was
not
certified
and
was
given
refresher
training.
She
successfully
completed
that
training
in
February
2007.
Ms.
Steer
did
not
directly
supervise
the
Grievor.
There
were
three
supervisors
at
the
site,
Cheryl
Bryant,
Michael
Warner
and
Ken
Spence,
who
supervised
between
50
and
55
TCAs
including
the
Grievor.
Cheryl
Bryant
reported
that
the
Grievor’s
error
rate
was
high
and
that
she
was
not
performing
a
number
of
the
allotted
tasks
and
Ms.
Steer
told
Ms.
Bryant
to
continue
mentoring
and
supporting
the
Grievor.
On
October
25,
2007,
the
-25-
Grievor
was
placed
in
a
performance
development
plan.
The
Grievor’s
minimum
requirements
for
the
previous
six
months
as
noted
by
the
business
analyst
team
had
fallen
below
the
3.4
minimum
requirement;
she
had
not
met
expectations.
The
expectation
for
success
in
the
plan,
acknowledged
by
the
Grievor,
was
to
be
above
the
3.4
minimum
requirement.
The
Grievor
successfully
completed
the
plan
and
was
so
notified
on
February
1,
2008.
Prior
to
being
put
on
the
plan
the
Grievor
was
away
from
her
desk
a
lot,
was
on
the
telephone
and
was
making
mistakes.
Cheryl
Bryant
discussed
her
concerns
with
the
Grievor
on
more
than
one
occasion.
On
June,
2007,
Cheryl
Bryant
advised
Ms.
Steer
that
the
Grievor
was
working
for
another
organization.
The
information
was
provided
to
Ms.
Bryant
by
a
supervisor
at
another
site.
Ms.
Steer
was
also
given
a
link
to
another
web
site
which
indicated
the
Grievor
and
her
husband
were
working
in
real
estate
for
Royal
LePage.
Ms.
Steer
was
concerned
and
was
of
the
view
that
because
the
Grievol
was
working
elsewhere
she
was
not
focused
on
her
work
at
Teranet
which
explained
her
substandard
performance.
Also,
Teranet
had
a
Code
of
Conduct
in
place
that
dealt
with
conflicts
and
potential
conflicts
when
working
for
another
organization.
The
Code
-26
-
prohibited
working
for
another
organization
on
Teranet’s
time
or
premises
and
also
prohibited
the
use
of
Teranet’s
supplies,
facilities
or
tools
while
working
for
another
organization.
Teranet
does
not
prohibit
employees
working
for
another
organization,
but
requests
transparency
about
that
relationship
and
asks
employees
to
sign
a
declaration
confirming
their
understanding
of
the
Code
of
Conduct.
Also,
Teranet
was
concerned
that
a
real
estate
broker
may
have
access
to
information
about
properties
not
automated
that
might
not
be
available
otherwise
and
which
might
place
the
employee
in
a
conflict
situation.
Ms.
Steer
asked
the
Grievor
to
attend
a
meeting
with
her
and
Ms.
Bryant
to
discuss
if
she
was
working
for
another
organization
and
if
so,
to
talk
about
the
Code
of
Conduct
requirements.
It
was
intended
as
a
conversation
to
provide
an
opportunity
for
clarity.
At
the
meeting,
Ms.
Steer
asked
the
Grievor
if
she
worked
for
a
real
estate
organization
and
discussed
signing
the
declaration
and
being
aware
of
Teranet’s
expectations.
Ms.
Steer
voiced
her
concern
about
the
Grievor’s
performance
plan
and
told
the
Grievor
she
needed
her
to
be
successful
•
and
to
ensure
Teranet
was
her
priority.
The
Grievor
was
upset
with
the
conversation
and
stated
it
was
confusing.
She
admitted
to
being
involved
with
another
organization,
but
it
-27-
was
unclear
to
what
extent
she
was
involved
in
real
estate.
The
Grievor
was
agitated
that
the
issue
was
raised.
Ms.
Steer
stated
the
meeting
was
calm
from
both
her
and
Ms.
Bryant’s
perspective
and
she
did
not
accuse
the
Grievor
of
breaching
the
policy.
Ms.
Steer
wanted
to
be
clear
that
it
was
airight
to
work
for
another
organization,
but
needed
to
ensure
the
Grievor
understood
and
agreed
to
the
policy.
When
the
meeting
ended
Ms.
Steer
considered
the
issue
to
be
at
an
end
but
the
Grievor
did
not
and
became
fixated
on
how
the
information
came
to
light
and
consulted
Scott
Ferguson,
her
union
representative.
Mr.
Ferguson
requested
a
follow-up
meeting.
Ms.
Steer
did
not
think
that
signing
the
declaration
was
an
issue
because
others
had
signed
it,
including
another
TCA
who
was
a
mortgage
broker
in
London,
Ontario.
Ms.
Steer
had
a
further
meeting
with
the
Grievor
and
Mr.
Ferguson,
her
union
representative;
also
in
attendance
was
Michael
Warner,
a
supervior.
According
to
Ms.
Steer
the
Grievor
was
concerned
about
her
real
estate
title
and
how
Ms.
Steer
found
out
she
was
working
in
real
estate.
The
Grievor
was
aggressive
towards
Ms.
Steer
and
claimed
she
had
dug
into
her
personal
life.
Ms.
Steer
informed
her
that
the
information
was
brought
to
her
and
it
was
not
through
her
initiative.
The
Grievor
signed
the
-28
-
declaration.
The
Grievor
also
raised
an
unrelated
issue
about
being
phoned
at
home
on
a
flexday
and
was
told
there
had
been
a
misunderstanding.There
was
an
email
to
Ms.
Steer
from
Mr.
Warner
outlining
what
had
occurred
at
the
meeting
and
there
was
a
further
email
to
Ms.
Steer
from
the
Grievor.
Ms.
Steer
considered
the
matter
closed
and
assumed
that
the
Grievor
did
not
work
for
another
organization
on
Teranet’s
time
and
did
not
use
Teranet’s
resources.
Ms.
Steer
was
also
shown
the
notes
taken
by
Ms.
Bryant
at
the
December
6,
2007
meeting
and
stated
that
nothing
in
those
notes
impacts
her
testimony.
Nor
did
Ms.
Steer
search
the
computer
records
to
see
if
the
Grievor
was
working
for
another
company
on
Teranet’s
time.
Ms.
Steer
reviewed
the
greivor’s
emails
in
September
2008,
after
they
had
been
requested
by
Mr.
Farewell,
and
concluded
that
the
Grievor
had
been
conducting
real
estate
business
on
Teranet’s
time
and
on
Teranet’s
premises
and
had
used
Teranet’s
computer.
The
last
email
was
on
November
9,
2007.
At
the
December
2007
meeting
the
Grievor
had
stated
she
was
not
doing
business
unrelated
to
Teranet
on
Teranet
premises
and
Ms.
Steer
had
taken
her
at
her
word.
When
she
reviewed
the
emails
in
September
2008
she
concluded
the
Grievor
had
not
been
-29
-
truthful.Ms.
Steer
closed
the
issue
relating
to
another
organization
on
January
3,
2008
and
on
February
1,
2008
advised
the
Grievor
that
she
had
successfully
completed
her
performance
development
plan.
She
had
no
further
interaction
with
the
Grievor
until
August
11,
2008
when
she
had
a
conversation
with
the
Grievor
who
had
used
up
all
her
vacation
time,
personal
time
and
floater
time.
Ms.
Steer
was
concerned
that
if
an
unexpected
event
arose
any
time
taken
by
the
Grievor
would
be
unpaid.
The
Grievor
responded
that
she
would
look
into
it.
The
next
interaction
with
the
Grievor
was
on
September
10,
2008,
after
the
Grievor
called
Ms.
Bryant
to
say
she
was
taking
a
personal
day
and
left
her
cell
phone
number.
Ms.
Steer
called
the
Grievor
to
advise
her
that
she
did
not
have
enough
banked
personal
time
to
take
and
some
of
the
time
taken
would
be
unpaid.
It
was
usual
for
Ms.
Steer
to
call
employees
who
were
not
a
work
when
expected
or
who
were
out
of
banked
time.
Ms.
Steer
left
a
message
but
the
Grievor
did
not
call
back.
Ms.
Steer
also
called
a
second
time
but
did
not
leave
a
message.
Ms.
Bryant
was
not
in
the
office
and
returned
on
September
12.
She
did
not
approach
the
-
30
-
Grievor,
but
since
she
had
left
the
Grievor
a
message
she
provided
the
Grievor
with
an
opportunity
to
approach
her.
The
Grievor
did
not.
On
September
15,
2008
Ms.
Steer
sent
the
Grievor
a
message
since
the
payroll
was
due
and
she
wanted
to
inform
the
Grievor
that
some
of
the
time
taken
September
10
would
be
unpaid.
The
Grievor
did
not
respond
and
Ms.
Steer
went
to
her
desk
and
asked
to
see
her
in
her
office
where
there
was
some
privacy.
In
the
office,
Ms.
Steer
explained
why
the
Grievor
would
not
be
fully
paid.
The
Grievor
had
some
paid
hours
banked.
Ms.
Steer
also
asked
the
Grievor
why
she
had
not
returned
her
phone
call.
The
Grievor
became
agitated
and
defensive.
Ms.
Steer
told
her
she
was
not
being
accusatory
and
just
wanted
to
have
a
conversation.
The
Grievor
seemed
more
aggravated.
Ms.
Steer
was
surprised
by
the
Grievor’s
reaction.
The
Grievor
stated
she
was
busy
dealing
with
something
but
Ms.
Steer
did
not
know
what
the
issue
was
at
the
time.
The
Grievor
stated
that
the
conversation
was
over.
She
was
upset
to
the
point
of
acting
in
an
insubordinate
manner.
4s.
Steer
advised
her
to
step
back
and
calm
down.
The
Grievor
asked
for
a
union
representative
and
Ms.
Steer
said
that
was
fine.
The
conversation
concluded;
it
had
lasted
between
five
and
ten
minutes.
-
31
-
Ms.
Steer
was
stunned
by
the
Grievor’s
tone,
her
defensiveness
and
aggressiveness.
She
did
not
know
where
the
Grievor
was
coming
from.
Ms.
Steer
has
had
conversations
with
others
about
payroll
shortages
and
not
calling
back.
Such
conversations
are
standard.
Ms.
Steer
spoke
to
Cheryl
Bryant
who
did
not
know
what
the
Grievor
was
dealing
with.
The
Grievor
spoke
to
Scoft
Ferguson,
her
union
representative,
and
then
told
Michael
Warner,
her
supervisor,
that
due
to
a
personal
crisis,
she
needed
to
get
her
stuff
and
leave
work
immediately.
Mr.
Warner
was
unaware
of
the
conversation
with
Ms.
Steer
and
asked
the
Grievor
if
she
would
be
back
tomorrow,
to
which
she
replied
that
she
would.
The
Grievor
did
not
tell
Mr.
Warner
about
a
personal
crisis.
Ms.
Steer
found
the
Grievor’s
conduct
surprising,
unwarranted
and
disappointing
and
felt
there
was
no
reason
for
that
type
of
behavior
and
reported
the
Grievor’s
conduct
to
Chris
Yankou,
Manager
of
Human
Resources.
On
September
15,
2008,
Mike
Argue,
the
Local
Union
President,
asked
to
meet
with
Ms.
Steer.
He
indicated
his
concern
and
asked
for
Ms.
Steer’s
take
on
the
situation.
He
said
the
Grievor
was
upset
about
being
-
32
-
called
into
the
office
and
dressed
down.
Ms.
Steer
was
shocked
by
his
statement
and
asked
if
those
were
his
words
and
he
said
yes.
Mr.
Argue
did
not
provide
any
insight
into
what
the
Grievor
was
dealing
with.
He
said
“Can’t
you
cut
her
some
slack?”
Ms.
Steer
asked
what
he
meant.
Mr.
Argue
suggested
there
was
a
personality
conflict
but
Ms.
Steer
did
not
believe
there
was
because
she
did
not
cross
paths
with
the
Grievor
very
often
and
she
did
not
feel
there
was
an
issue
between
them.
Ms.
Steer
stated
she
would
not
meet
with
the
Grievor
alone
based
on
the
Grievor’s
behavior
in
the
meeting
and
the
conversation
with
Mr.
Argue.
She
wanted
other
people
in
the
room
because
the
Grievor’s
characterization
of
the
meeting
was
not
factual
and
Ms.
Steer
did
not
want
to
be
in
the
position
of
being
falsely
accused;
she
did
not
trust
the
Grievor.
Ms.
Steer
made
notes
of
her
conversation
with
the
Grievor
and
Mr.
Argue,
which
were
filed.
The
Grievor
reported
for
work
on
September
16,
2008
and
was
late
on
September
17,
2008.
Cheryl
Bryant
discussed
the
Grievor’s
lateness
with
her
but
there
was
no
interaction
between
the
Grievor
and
Ms.
Steer.
On
September
18,
2008,
the
Grievor
called
Ms.
Bryant
and
told
her
that
she
was
off
on
stress
leave
and
had
a
doctor’s
note.
The
Grievor
was
placed
under
surveillance;
Ms.
Steer
did
not
have
any
involvement
in
that
-
33
-
decision.
Ms.
Steer
read
the
surveillance
report
and
was
of
the
view
that
the
Grievor
was
working
for
another
organization
while
claiming
sick
leave
benefits
from
Teranet.
Mr.
Farewell
made
the
decision
to
terminate
the
Grievor’s
sick
leave
benefits
and
to
terminate
her.
The
first
indication
that
Ms.
Steer
had
about
what
the
Grievor
had
meant
when
she
told
her
at
the
meeting
that
she
was
busy
dealing
with
something
was
in
the
Grievor’s
complaint
about
Ms.
Steer
which
is
outlined
in
the
Grievor’s
email
of
September
26,
2008.
Ms.
Steer
at
that
point
had
not
heard
that
the
Grievor
had
a
sick
father-in-law
and
Cheryl
Bryant
confirmed
that
the
Grievor’s
voice
message
concerning
her
absence
made
no
mention
of
either
an
emergency
or
a
family
situation.
Ms.
Steer
was
shocked
and
surprised
by
the
contents
of
the
letter
and
the
Grievor’s
characterization
of
the
events,
as
well
as
being
disappointed
by
the
“untruths”
in
the
letter.
Ms.
Steer
stated
in
response
to
the
Grievor’s
email
that
she
was
not
angry
or
defensive,
that
she
did
not
raise
her
voice;
that
she
did
not
say
the
GHevor
had
issues.
Ms.
Steer
also
denied
that
the
meeting
with
Scott
Ferguson
and
the
Grievor
on
December
18,
2007
was
an
investigation
into
the
Grievor’s
personal
life.
The
information
about
the
Grievor’s
involvement
with
her
husband’s
real
estate
business
was
-
34
-
contained
on
a
website
and
that
information
was
conveyed
to
Ms.
Steer
by
Cheryl
Bryant.
It
was
only
at
that
point
that
Ms.
Steer
discussed
the
website.
Ms.
Steer
gave
the
Grievor’s
email
and
letter
to
Mr.
Farewell
for
his
review
and
had
no
further
dealings
with
the
Grievor
other
than
the
letters
and
emails
which
were
referred
to
earlier
in
Mr.
Farewell’s
evidence.
Ms.
Steer
confirmed
that
the
Grievor
was
asked
to
attend
a
meeting
on
October
2,
2008
but
declined
to
meet
with
the
company
based
on
her
doctor’s
instructions.
Teranet
had
concerns
about
the
validity
of
her
medical
condition
and
Mr.
Farewell
did
not
reinstate
her
benefits.
The
letters
of
termination
were
prepared
by
Human
Resources
and
Ms.
Steer
signed
them.
Mr.
Farewell
did
not
ask
Ms.
Steer
for
her
opinion
before
he
made
the
decision
to
terminate.
The
Grievor
had
removed
a
number
of
personal
belongings
including
family
photos
and
personal
mementos
when
she
left
the
office
and
it
did
not
appear
she
was
returning.
All
remaining
items
were
catalogued
and
sent
to
her.
Ms.
Steer
testified
that
the
Grievor’s
performance
at
work
had
been
quite
poor
for
some
time
and
was
frequently
checked
by
others
as
her
error
rate
was
extremely
high
and
the
intent
of
Teranet
was
to
place
the
Grievor
-35-
into
the
next
level
of
performance
development.
Ms.
Steer
denied
the
allegations
against
her
contained
in
the
Union’s
particulars.
She
denied
harassing
the
Grievor
and
specifically
denied
harassing
her
because
of
the
Grievor’s
allegation
that
Ms.
Steer’s
husband
was
a
real
estate
agent
in
competition
with
her
husband.
Ms.
Steer
had
no
discussions
with
her
husband
about
the
Grievor’s
involvement
with
her
husband
in
real
estate
because
it
was
irrelevant
to
her
personal
life
and
was
a
work
issue
which
she
considered
resolved
when
the
Grievor
signed
the
declaration.
Ms.
Steer
had
no
knowledge
of
work
related
stress
or
any
stress
until
the
Grievor
walked
off
the
job
on
September
17,
2008.
The
Union
had
never
asked
for
medical
leave
for
stress
for
the
Grievor.
When
cross-examined,
Ms.
Steer
stated
the
she
was
not
the
Grievor’s
supervisor
at
the
beginning
of
her
employment,
nor
was
she
involved
with
the
Grievor’s
training.
Ms.
Steer
became
aware
of
the
Grievor’s
real
estate
involvement
through
Cheryl
Bryant
on
November
30,
2007.
Another
supervisor
independently
noticed
the
Grievor
frequently
out
in
the
hail
and
on
the
telephone
and
advised
Ms.
Bryant
about
the
Grievor’s
real
estate
involvement.
Concerns
were
being
raised
about
the
Grievor’s
-
36
-
telephone
activities
and
being
away
from
her
desk
frequently,
and
also
about
her
performance.
Ms.
Bryant
sent
an
email
to
Ms.
Steer
with
the
Royal
LePage
website
which
contained
the
Grievor’s
maiden
name.
The
Grievor’s
real
estate
activities
became
relevant
in
light
of
the
Grievor’s
performance
issues
and
the
Grievor’s
lack
of
focus.
As
a
result,
it
was
determined
by
Ms.
Steer,
along
with
the
Grievor’s
supervisors,
that
a
meeting
be
held.
The
matter
was
not
investigated
further.
Ms.
Steer
admitted
her
spouse
was
involved
in
real
estate
along
with
about
5,000
others
in
the
Brampton
area
which
is
a
huge
market
with
lots
of
agents.
That
her
spouse
was
also
in
real
estate
was
irrelevant
and
Ms.
Steer
was
not
involved
in
her
spouse’s
real
estate
business.
At
the
December
6,
2007
meeting,
the
Grievor
stated
that
she
was
a
part-time
real
estate
broker
at
Royal
LePage.
Ms.
Steer
questioned
the
Grievor
about
her
phone
calls
and
raised
concerns
about
whether
the
calls
were
related
to
the
Grievor’s
real
estate
work.
She
had
no
knowledge
as
to
what
the
calls
were
about.
Ms.
Steer
admitted
there
was
nothing
wrong
with
making
and
receiving
calls
on
an
employee’s
own
time.
There
was
no
discussion
concerning
the
Grievor’s
email
or
computer
use.
The
email
use
was
discovered
in
the
Fall
of
2008.
Working
elsewhere
was
permitted
and
-
37
-
the
Grievor
signed
the
declaration.
At
a
follow-up
meeting
on
December
18,
2007,
the
Grievor
suggested
that
a
specific
time
for
lunch
and
breaks
be
agreed
upon
and
Ms.
Steer
agreed
and
left
it
to
the
Grievor
and
Ms.
Bryant
to
work
out.
On
another
occasion,
Ms.
Steer
went
to
the
washroom
where
she
remained
for
a
long
time.
Upon
entering
the
washroom,
she
noticed
the
Grievor
on
her
phone
and
when
she
left
the
Grievor
was
still
on
the
phone.
Ms.
Steer
tapped
her
watch
as
a
reminder
of
the
time.
Ms.
Steer
conceded
that
if
the
Grievor
was
on
a
break
she
was
free
to
use
the
phone
but
it
appeared
the
Grievor
was
on
the
phone
for
a
long
time.
There
was
no
discussion
and
Ms.
Steer
continued
on
to
the
work
floor.
Ms.
Steer
could
not
say
how
long
the
Grievor
was
on
the
phone,
although
it
felt
longer
than
fifteen
minutes
which
was
the
length
of
the
Grievor’s
break.
At
the
December
6,
2007
meeting
the
Grievor
was
adamant
that
she
was
not
conducting
business
on
Teranet’s
premises
and
during
Teranet’s
time.
She
also
denied
using
Teranet’s
equipment.
Ms.
Steer
took
the
Grievor
at
her
word
and
it
was
only
in
the
Fall
of
2008
prior
to
the
Grievor’s
termination
that
Teranet
learned
that
she
was
conducting
business
on
-
38
-
Teranet
time
and
on
Teranet’s
computer.
Ms.
Steer
conceded
that
the
minutes
of
the
meeting
do
not
reflect
that
the
Grievor
was
adamant
about
the
use
of
company
equipment
on
company
time.
She
admitted
the
statement
may
not
have
been
made.
Ms.
Steer
was
not
involved
in
the
forensic
analysis
of
the
Grievor’s
computer
and
agreed
that
all
emails
preceded
the
Grievor
signing
the
declaration.
Ms.
Steer
agreed
that
the
Grievor
had
met
the
requirements
of
the
performance
development
plan
and
there
were
no
performance
issues
in
the
two
month
period
after
the
plan’s
completion
on
February
1,
2008.
The
Grievor
was
never
placed
on
a
performance
management
plan.
Ms.
Steer
signed
off
on
the
Grievor’s
performance
review
for
the
period
January
4,
2007
to
January
7,
2008.
There
were
good
comments
as
well
as
other
comments
stating
she
required
improvement.
Ms.
Steer
admitted
she
called
the
Grievor
twice
on
September
10,
2008,
when
the
Grievor
was
absent.
It
was
not
uncommon
to
call
absent
employees
to
see
if
they
are
airight.
On
that
day,
the
Grievor
did
not
have
sufficient
time
in
her
personal
bank
to
take
a
full
paid
day
off.
Ms.
Steer
called
to
see
if
the
Grievor
was
airight
and
to
let
her
know
she
would
not
be
-
39
-
fully
paid.
The
following
day
Ms.
Steer
gave
the
Grievor
an
opportunity
to
respond
to
her
telephone
calls
but
the
Grievor
did
not
respond.
On
September
15,
2008,
because
she
needed
to
submit
the
payroll
and
wanted
to
know
how
to
characterize
the
Grievor’s
day
off,
Ms.
Steer
asked
the
Grievor
to
come
to
her
office.
Ms.
Steer
was
unaware
that
the
Grievor
was
involved
with
a
family
emergency
on
September
10,
2008.
The
Grievor
claimed
the
calls
to
her
were
upsetting.
Ms.
Steer
denied
that
she
was
angry
or
that
she
spoke
to
the
Grievor
in
an
aggressive
or
intimidating
tone.
She
asked
the
Grievor
why
she
was
being
so
defensive
and
did
not
understand
why
the
Grievor
was
reacting
so
strongly.
She
did
not
refer
to
the
Grievor
as
being
paranoid
but
referred
to
her
notes
which
stated,
“I
told
her
I
was
not
being
accusatory
or
aggressive
in
any
form.
I
asked
why
she
was
being
so
defensive
and
reacting
so
strongly
to
the
point
of
what
may
be
described
as
paranoia.”
Ms.
Steer
denied
saying
that
the
Grievor
had
issues
and
was
not
aware
of
any
issues
in
her
personal
life.
There
were
work
issues
with
the
Grievor
concerning
her
performance.
The
Grievor
was
distracted
at
work.
The
Grievor
raised
concerns
about
the
tone
of
Ms.
Steer’s
voice
and
became
agitated.
The
conversation
was
fine
until
Ms.
Steer
asked
the
Grievor
why
she
had
not
returned
her
phone
calls
and
that
is
when
the
Grievor
became
physically
agitated
and
very
defensive.
The
Grievor
stated
that
she
knew
-40
-
what
her
time
was
and
she
was
not
a
child
and
then
stood
up
and
said
this
conversation
is
over
and
left
the
office.
Ms.
Steer
felt
the
Grievor’s
actions
led
her
to
feel
the
Grievor
was
on
the
verge
of
being
insubordinate.
The
Grievor
requested
a
union
representative
and
Ms.
Steer
told
her
that
was
fine.
Ms.
Steer
denies
being
angry
or
raising
her
voice
during
the
meeting
and
was
taken
aback
by
the
Grievor’s
reaction.
Ms.
Steer
became
aware
later
on
that
the
Grievor
had
left
the
workplace.
The
Grievor
returned
to
the
workplace
on
September
16
and
17,
2008.
Ms.
Steer
spoke
to
Human
Resources
about
the
situation
but
did
not
discipline
the
Grievor.
Prior
to
her
termination,
the
Grievor
was
not
disciplined.
Ms.
Steer
received
the
September
17
and
September
25,
2008
medical
notes
from
Dr.
Black
from
the
Human
Resources
Department
or
directly.
She
provided
the
Grievor
with
sick
leave
forms
at
the
request
of
the
Human
Resources
Department.
It
appeared
the
Grievor
would
be
away
for
an
extended
period
and
Ms.
Steer
asked
for
more
detailed
information
from
her
in
accordance
with
the
standard
practice.
On
September
29,
2008,
Teranet
by
letter
suspended
the
Grievor’s
sick
benefits.
The
letter
was
prepared
by
Human
Resources
and
signed
by
-41-
Ms.
Steer.
Ms.
Steer
did
not
see
the
Physician’s
statement
dated
September
29,
2008
which
was
sent
to
Teranet
and
she
was
not
aware
that
the
Grievor
could
not
attend
her
doctor’s
office
on
September
26,
2008,
as
requested.
Teranet
tried
to
meet
with
the
Grievor
but
she
declined
based
on
her
doctor’s
advice.
Teranet
and
Ms.
Steer,
being
aware
of
the
surveillance,
believed
the
Grievor
was
able
to
work
and
did
not
ask
for
a
second
opinion.
Ms.
Steer
had
worked
at
the
Land
Registry
Office
as
a
law
clerk
and
conveyancer
and
assumed
from
the
surveillance
report
that
the
Grievor
had
attended
that
office
on
September
23,
2008.
She
admitted
that
she
did
not
know
what
the
Grievor
did
at
the
Royal
LePage
offices,
nor
did
she
know
what
papers
the
Grievor
was
carrying
although
she
assumed
they
were
related
to
the
open
house
that
the
Grievor
conducted.
Also,
there
was
nothing
to
indicate
what
the
Grievor
did
at
Colour
Tech
Marketing.
Ms.
Steer
did
not
make
the
decision
to
terminate
the
Grievor
and
did
not
prepare
the
letter
of
termination.
•
When
re-examined,
Ms.
Steer
confirmed
she
tapped
her
watch
after
exiting
the
washroom
and
noticing
the
Grievor
on
the
phone.
The
incident
was
not
grieved,
nor
was
the
Grievor
disciplined.
Neither
was
the
performance
review
of
January
28,
2008,
grieved,
which
showed
the
-42-
Grievor
required
further
development.
Ms.
Steer
agreed
that
she
did
not
use
the
term
insubordinate
in
the
September
15,
2008
performance
log
when
referring
to
the
Grievor’s
conduct,
but
felt
that
what
the
Grievor
said
coupled
with
her
standing
up
and
stating
that
the
conversation
was
over
was
insubordinate.
The
meeting
was
not
a
disciplinary
meeting
since
there
was
no
union
steward
present.
Cheryl
Bryant
was
a
supervisor
at
Teranet
from
1999
until
2011
and
reported
to
Susan
Steer.
She
was
on
a
panel
in
2004,
which
recommended
hiring
the
Grievor,
and
she
became
the
Grievor’s
supervisor
when
the
Grievor
returned
from
her
maternity
leave.
Ms.
Bryant
testified
that
for
the
period
February
1,
2007
until
September
2008,
the
Grievor’s
work
performance
fell
below
the
minimum
requirements
for
ten
of
those
months
and
her
error
rate
was
below
standard
for
sixteen
of
the
twenty
months.
She
considered
the
Grievor’s
performance
to
be
poor
and
not
of
the
required
level
which
was
concerning.
In
August
of
2007,
Ms.
Bryant
had
emailed
the
Grievor
requesting
that
she
put
her
phone
on
vibrate
so
that
it
did
not
disrupt
others.
Ms.
Bryant
noticed
and
was
concerned
about
the
Grievor’s
frequent
phone
calls
-43
-
because
the
Grievor’s
output
was
decreasing.
In
August
of
2007
she
noticed
the
Grievor’s
low
productivity
and
spoke
to
Ms.
Steer.
She
also
met
with
the
Grievor
and
raised
concerns
about
her
performance.
The
Grievor’s
output
improved
but
not
the
quality
and
the
Grievor
was
notified
on
October
26,
2007
that
she
would
be
placed
on
a
performance
plan
where
she
was
provided
assistance
and
support
by
Ms.
Bryant
and
others.
While
on
the
plan,
the
Grievor
told
Ms.
Bryant
that
the
support
she
was
receiving
was
good.
When
the
performance
plan
concluded
on
December
31,
2007,
Ms.
Bryant
commented
that
the
Grievor
needed
improvement
but
also
provided
supportive
comments
to
encourage
improvement.
The
Grievor
was
not
doing
a
good
job
and
Ms.
Bryant
indicated
that
“further
training
and
more
experience
was
required,
in
order
to
meet
the
position
requirements”.Following
the
performance
plan
the
Grievor’s
performance
was
inconsistent
and
her
error
rates
were
consistently
above
twenty
percent.
On
September
3,
2008,
Ms.
Bryant
sent
an
email
to
Ken
Spence
and
Michael
Warner,
who
were
also
supervisors,
concerning
work
that
the
Grievor
had
performed
where
the
error
rate
was
exceptionally
high.
Because
of
the
deadlines,
it
was
decided
that
one
block
would
be
returned
-44
-
to
the
Grievor
to
be
reworked
which
was
not
usual
or
common.
The
Grievor
was
never
put
on
a
performance
management
plan
because
her
employment
was
terminated.
In
November
of
2007,
Ms.
Bryant
had
a
conversation
with
another
supervisor
who
informed
her
the
Grievor
was
spending
a
lot
of
time
on
personal
phone
calls
and
also
told
her
the
Grievor
was
a
real
estate
agent.
Ms.
Bryant
did
an
Internet
search
and
found
the
Grievor
was
working
for
Royal
LePage
as
a
sales
representative.
Ms.
Bryant
was
aware
of
the
Code
of
Conduct
concerning
working
for
an
outside
organization
and
was
concerned
that
the
Grievor
was
conducting
other
business
on
Teranet’s
time.
There
was
also
some
concern
about
her
working
elsewhere
because
the
Grievor
had
been
put
on
a
performance
plan
and
Teranet
was
spending
a
lot
of
time
and
resources
to
support
her.
After
speaking
to
Ms.
Steer,
it
was
decided
to
meet
with
the
Grievor
to
have
her
sign
a
declaration.
Ms.
Bryant
stated
that
the
meeting
was
concerned
about
the
Grievor’s
telephone
calls
and
that
her
performance
was
possibly
being
impaired
by
her
telephone
calls.
At
the
meeting
when
the
Grievor
was
asked
about
her
real
estate
activities,
she
became
angry,
agitated
and
flustered
and
her
face
was
flushed.
Ms.
Bryant
was
surprised
by
her
reaction.
The
Grievor
-45
-
stated
she
would
take
her
breaks
and
lunch
at
regulated
times.
The
Grievor
was
given
the
declaration
and
took
it
away
with
her.
Ms.
Bryant
denied
that
Ms.
Steer
was
angry
or
displeased
and
stated
that
Ms.
Steer
was
calm
and
professional
which
was
not
out
of
character
for
her.
Ms.
Bryant
maintained
that
the
Grievor
had
a
strong
reaction
and
was
upset
and
she
discussed
the
Grievor’s
reaction
which
was
surprising
and
unexpected
with
Ms.
Steer.
Ms.
Bryant
also
denied
that
Ms.
Steer
accused,
assumed
or
speculated
about
the
Grievor’s
conduct
and
claimed
Ms.
Steer
brought
forth
the
information
they
had,
and
discussed
the
Grievor’s
phone
calls,
Teranet’s
policy
and
the
Grievor’s
performance.
After
the
meeting,
the
Grievor
did
not
raise
any
concerns
about
Ms.
Steer’s
behavior,
nor
did
she
at
any
time
raise
such
concerns
while
Ms.
Bryant
was
her
supervisor.Ms.
Bryant
also
testified
that
the
Grievor’s
attendance
was
irregular
—
she
was
tardy
and
absent
a
lot
but
would
notify
Ms.
Bryant
by
voice
mail
when
she
would
be
away
from
work.
On
November
30,
2007,
the
Grievor
was
away
and
there
was
no
voice
mail.
Ms.
Bryant
informed
Ms.
Steer
who
contacted
the
Grievor
and
was
told
that
the
Grievor’s
father-in-law
was
ill.
On
November
29,
2007,
the
Grievor
had
submitted
a
request
to
change
-46
-
her
flex
day
to
November
30,
2007.
Ms.
Bryant
was
absent
on
November
29
and
was
not
aware
of
the
Grievor’s
request,
otherwise
she
would
not
have
spoken
to
Ms.
Steer.
Ms.
Bryant
checked
and
found
the
Grievor’s
request
which
had
not
been
processed
due
to
an
administrative
error.
On
September
10,
2008,
the
Grievor
was
not
at
work
and
left
a
voice
mail
which
stated
that
she
would
not
be
at
work
and
was
dealing
with
a
personal
matter.
There
was
no
indication
that
there
was
a
family
emergency.
The
voice
mail
also
stated
the
following:
“If
you
want
to
get
hold
of
me
you
can
all
me
at
[number
stated]
—
that
is
my
cell
phone
number.
Thank
you
so
much.
Bye”.
Ms.
Bryant
informed
Ms.
Steer
and
they
decided
to
contact
the
Grievor
to
ensure
she
was
airight
and
to
discuss
how
her
time
would
be
taken
as
the
Grievor
had
run
out
of
personal
(discretionary)
time.
Ms.
Bryant
spoke
to
Ms.
Steer
later
and
asked
if
she
had
heard
from
the
Grievor
how
her
time
was
to
be
recorded.
Ms.
Steer
had
not
heard
from
the
Grievor
so
she
and
Ms.
Bryant
discussed
calling
the
Grievor
a
second
time.
Ms.
Steer
called
but
left
no
message
since
she
had
left
an
earlier
message.
When
the
Grievor
returned
to
work,
Ms.
Bryant
did
not
speak
to
her.
-47
-
She
spoke
to
Ms.
Steer
after
Ms.
Steer’s
meeting
with
the
Grievor
on
September
15,
2008.
Ms.
Steer
was
surprised
by
the
Grievor’s
reaction.
The
Grievor
was
at
work
on
September
16
and
September
17,
2008.
On
September
17,
the
Grievor
was
late
and
notified
Ms.
Bryant;
there
was
nothing
unusual
about
that
day.
On
September
18,
2008,
the
Grievor
left
a
message
stating
she
was
on
stress
leave
and
had
a
doctor’s
note.
Ms.
Bryant
had
no
further
involvement
with
the
surveillance
or
the
Grievor’s
termination.
She
stated
that
throughout
her
employment
Ms.
Steer
was
very
professional
and
would
not
conduct
herself
otherwise.
Also,
the
Grievor
never
complained
about
Ms.
Steer.
When
cross-examined,
Ms.
Bryant
stated
she
was
one
of
the
Grievor’s
three
supervisors
from
February
2007
until
September
2008.
The
Grievor
was
not
disciplined
for
her
performance
and
the
performance
plan
was
not
disciplinary.
The
Grievor
was
also
not
disciplined
for
attendance
or
phone
use.
Ms.
Bryant
confirmed
that
she
signed
off
on
the
Grievor’s
performance
plan
but
based
on
the
Grievor’s
overall
performance
further
development
was
required.
Although
the
performance
plan
was
completed
the
Grievor
was
not
placed
on
another
performance
plan.
-48
-
In
the
Summer
of
2007,
the
Grievor
had
a
lot
of
phone
calls,
but
Ms.
Bryant
did
not
know
what
the
calls
were
about
and
did
not
assume
they
were
related
to
real
estate.
After
being
informed
by
another
supervisor
about
the
Grievor’s
real
estate
involvement,
Ms.
Bryant
googled
the
Grievor’s
name
and
checked
her
website
and
sought
other
information.
Ms.
Bryant
was
not
aware
how
the
other
supervisors
knew
about
the
Grievor’s
real
estate
involvement.
Ms.
Bryant
agreed
that
when
employees
take
a
personal
day
they
are
not
required
to
provide
personal
details.
When
the
Grievor
was
contacted
on
September
10,
2008,
it
was
to
see
if
she
was
alright,
which
was
standard
practice,
and
to
inform
her
she
did
not
have
enough
banked
time
to
account
for
the
full
day.
Ms.
Bryant
had
never
googled
another
employee.When
re-examined,
Ms.
Bryant
stated
she
had
no
reason
to
google
other
employees
because
she
had
never
.
been
told
that
any
other
employee
worked
for
a
real
estate
company.
-49-
The
Grievor
had
previously
been
a
law
clerk
and
was
also
licensed
as
a
real
estate
broker
and
mortgage
broker.
She
was
hired
as
a
title
certification
analyst
(TCA)
in
January
2005
and
worked
in
that
capacity
until
September
2005
when
she
left
on
maternity
leave.
After
she
was
hired
she
received
three
weeks
of
classroom
instruction
related
to
title
searching
and
then
commenced
working
on
site
where
senior
TCA’s
were
available
to
assist
her
in
her
work.
The
Grievor
was
not
certified
as
a
TCA
until
she
returned
from
her
maternity
leave
on
December
20,
2006.
At
that
time
she
worked
at
the
Atrium
and
Susan
Steer
was
the
manager;
Cheryl
Bryant,
Mike
Warner
and
Ken
Spence
were
her
supervisors.
Upon
her
return
from
maternity
leave,
the
Grievor
received
refresher
training
and
became
certified
in
February
of
2007.
The
Grievor
stated
that
there
was
nothing
unusual
in
her
contact
with
Cheryl
Bryant
and
Susan
Steer.
Her
first
significant
contact
with
Susan
Steer
was
in
November
2007
when
she
was
put
on
a
performance
plan
which
she
successfully
completed
ib
January
2008.
Cheryl
Bryant
oversaw
her
work
and
also
met
with
Susan
Steer
bi-weekly
to
review
the
Grievor’s
work.
-
50
-
On
November
29,
2007,
the
Grievor
submitted
a
form
to
have
her
flex
day
changed.
The
Grievor
gave
the
form
to
an
administrative
assistant
and
claimed
that
Cheryl
Bryant
was
standing
next
to
the
assistant’s
desk
when
she
spoke
to
the
assistant.
The
next
day
while
the
Grievor
was
at
home,
she
received
a
call
from
Ms.
Steer
asking
why
she
was
not
at
work.
The
Grievor
explained
that
she
had
submitted
a
request
form
the
day
before
and
Ms.
Steer
said
she
was
not
aware
of
it
and
would
look
for
the
form,
which
she
apparently
did.
When
the
Grievor
returned
to
work
everything
was
normal
and
she
was
not
questioned
about
the
matter.
The
Grievor
also
claimed
that
prior
to
a
December
6,
2007
meeting
with
Susan
Steer
and
Cheryl
Bryant,
she
was
on
her
break
and
while
speaking
on
her
cell
phone
to
a
friend,
Ms.
Steer
saw
her
talking
and
when
Ms.
Steer
came
out
of
the
bathroom,
she
gestured
and
tapped
her
watch
to
let
her
know
her
time
was
up.
The
Grievor
testified
that
she
was
shocked
as
she
had
not
exceeded
her
break
and
felt
Susan’s
gesture
was
uncalled
for.
On
December
6,
2007,
the
Grievor
was
called
to
Susan
Steer’s
office.
Cheryl
Bryant
was
in
attendance
and
Susan
Steer
asked
the
Grievor
about
-51-
her
real
estate
work
and
why
she
was
spending
so
much
time
on
the
phone.
The
Grievor
explained
that
the
majority
of
calls
were
for
personal
reasons
such
as
day
care,
doctor’s
appointments
and
to
her
husband.
The
Grievor
stated
that
she
worked
part
time
in
real
estate
for
Royal
LePage
and
questioned
how
Ms.
Steer
and
Ms.
Bryant
had
become
aware
of
it.
The
Grievor
was
told
that
they
were
informed
of
a
website,
but
the
person
who
informed
them
was
not
named.
The
Grievor
was
told
the
focus
should
be
on
her
work
at
Teranet
and
she
replied
that
Teranet
was
her
priority.
When
asked
if
people
had
tried
to
contact
her
for
real
estate
while
at
work,
she
stated
she
“kept
this
away
from
work”,
and
took
the
majority
of
calls
during
lunch
or
at
break
time.
The
Grievor
was
given
a
declaration
to
sign
and
said
she
would
review
the
form
and
get
back
to
them
and
the
meeting
ended.
The
Grievor
claimed
that
she
had
no
prior
notice
of
what
the
meeting
was
about,
had
no
union
representation
and
was
blindsided.
The
Grievor
made
notes
of
the
meeting
which
were
filed.
The
notes
reflect
that
the
Grievor
was
asked
about
doing
real
estate
work
on
company
premises
and
on
company
time,
and
the
Grievor
replied
that
she
made
calls
on
her
personal
cell
phone
and
not
on
Teranet’s
premises.
The
Grievor
also
noted
that
her
phone
calls
were
made
at
break
time
and
the
-
52
-
majority
of
the
calls
were
personal.
Susan
Steer
told
the
Grievor
that
she
needed
to
focus
on
her
job
and
the
Grievor
replied
that
she
was
focused.
The
Grievor’s
notes
indicate
she
was
upset
with
the
way
the
meeting
was
going
and
it
was
“full
of
accusations/assumptions/speculations
from
Susan”.
The
Grievor
felt
Ms.
Steer
was
very
aggressive.
The
Grievor
told
Susan
that
she
could
have
her
break
time
and
lunch
time
monitored
and
Susan
Steer
agreed.
The
Grievor
noted
that
being
monitored
like
a
child
was
humiliating
to
her.
She
testified
that
she
was
shocked
by
the
meeting.
The
Grievor
and
Scott
Ferguson,
her
union
representative,
met
with
Susan
Steer
and
Mike
Warner,
a
supervisor,
at
the
Grievor’s
request.
At
this
second
meeting,
the
Grievor
mentioned
the
phone
tapping
incident
and
told
Ms.
Steer
that
her
behavior
was
excessive
and
uncalled
for
and
that
she
had
been
upset
by
it.
Ms.
Steer
replied
that
she
was
not
aware
the
incident
upset
the
Grievor
and
that
the
Grievor
should
have
brought
it
to
her
attention.
The
Grievor
stated
that
she
chose
not
to
because
she
was
upset
and
might
have
said
something
inappropriate.
Ms.
Steer
replied
that
maybe
the
Grievor
had
control
issues
which
shocked
the
Grievor.
-
53
-
On
January
3,
2008,
the
Grievor
in
an
email
to
Susan
Steer
acknowledged
receipt
of
the
minutes
of
the
meeting
on
December
6,
2007
and
clarified
that
it
was
never
mentioned
that
the
Grievor’s
outside
activities
were
interfering
with
her
focus
on
the
job.
She
also
mentioned
that
she
was
entitled
to
receive
personal
calls
on
her
cell
phone
which
she
answers
on
her
breaks
and
at
lunch
but
she
would
answer
calls
of
an
urgent
nature
concerning
her
children.
She
stated
that
she
trusted
the
assumptions
that
every
call
she
received
or
made
was
of
a
business
nature
would
end.
The
Grievor
also
signed
the
declaration
and
provided
it
to
Ms.
Steer.
Susan
Steer
replied
that
there
never
was
an
assumption
that
every
call
made
was
of
a
business
nature
and
that
the
expectations
regarding
such
calls
had
been
made
clear
and
agreed
to
by
the
Grievor
in
the
declaration.The
Grievor
received
her
personal
performance
review
for
the
period
January
4,
2007
until
January
7,
2008
which
indicated
she
had
good
interpersonal
skills
and
was
committed.
When
the
Grievor
read
the
review
she
felt
the
overall
review
of
her
skills
was
good.
Her
SM
scores
were
3.82
which
met
the
requirements
of
the
Performance
Development
Plan.
Also,
at
-54-
that
time,
the
Grievor
attempted
to
stay
low
key
and
focus
on
her
work.
She
was
aware
of
what
had
happened
between
herself
and
Susan
Steer
and
went
off
the
Teranet
premises
into
the
mall
for
any
personal
calls.
On
September
10,
2008,
the
Grievor
had
a
family
situation
at
home
concerning
her
father-in-law
and
left
a
message
for
Cheryl
Bryant
stating
that
she
would
not
be
in
as
she
had
a
personal
situation
to
deal
with,
and
left
her
cell
phone
number.
She
did
not
specify
that
there
was
an
emergency
even
though
it
was;
it
was
quite
stressful
at
the
time.
Because
her
husband
had
to
attend
his
father
in
Toronto,
the
Grievor
found
it
necessary
to
stay
at
home
with
her
three
year
old
twins
since
the
day
care
did
not
accept
them
until
11:30
a.m.
On
that
day
Susan
Steer
called
the
Grievor
on
her
cell
phone
at
9:00
a.m.
and
left
a
message
to
call
her
at
the
office.
Ms.
Steer
called
again
at
1:00
p.m.,
but
the
Grievor
did
not
respond
to
either
call.
The
Grievor
was
concerned
with
dealing
with
a
serious
situation
and
“the
last
thing
anyone
would
want
is
a
phone
call
as
[she]
did
not
know
what
it
was
about”.
The
Grievor
had
used
up
her
vacation
and
her
personal
days
prior
to
that
day.
She
testified
that
Susan
Steer
had
not
called
her
when
she
was
absent
previously.
Given
the
relationship
with
Susan
Steer,
the
calls
brought
back
memories
of
the
November
29,
2007
-
55
-
incident;
the
Grievor
did
not
know
what
the
call
was
about.
She
felt
it
was
harassing
and
she
did
not
know
why
Susan
Steer
had
called
her
twice
on
that
day.
The
Grievor
claimed
the
call
was
harassing
because
of
the
November
29,
2007
incident
and
the
meetings
of
December
6
and
18,
2007,
and
she
did
not
see
the
need
to
call
her
twice.
The
Grievor
returned
to
work
on
September
11,
2008
and
Ms.
Steer
was
not
there,
nor
did
the
Grievor
have
any
conversation
with
Cheryl
Bryant.
The
Grievor
felt
it
was
unusual
not
to
be
asked
what
happened
considering
the
calls
from
Susan
Steer
and
felt
if
there
had
been
something
urgent,
it
could
have
been
addressed
by
Ms.
Bryant.
The
Grievor
spoke
to
her
union
steward
about
her
concerns
and
told
him
she
did
not
have
a
good
feeling
about
the
silence.
Ms.
Steer
returned
to
the
office
on
September
12,
2008,
and
raised
no
concerns.
On
Monday,
September
15,
2008,
the
Grievor
received
an
email
from
Susan
Steer
asking
to
see
her.
She
spoke
to
a
co-worker
for
about
five
minutes
and
Susan
Steer
came
to
her
desk
and
asked
her
to
come
to
her
office.
The
Grievor
felt
intimidated
by
the
tone
of
Susan
Steer’s
voice,
but
followed
her
to
her
office.
Ms.
Steer
asked
the
Grievor
why
she
did
not
call
-
56
-
her
back
on
September
10.
Ms.
Steer
stated
that
she
tried
to
call
the
Grievor
to
see
if
she
was
alright
and
to
let
her
know
that
she
did
not
have
enough
hours
to
get
full
pay
for
the
day
off
on
September
10.
The
Grievor
responded
that
given
the
situation
at
home
was
very
stressful,
it
did
not
matter
that
she
was
short
of
hours.
Ms.
Steer
said
that
the
Grievor
seemed
to
be
very
defensive
about
the
situation.
The
Grievor
told
her
she
did
not
feel
comfortable
discussing
it
as
Susan
Steer
was
not
a
family
member
and
she
did
not
want
to
get
into
details
but
it
was
an
emergency
and
very
stressful;
being
called
twice
made
it
more
stressful
and
the
Grievor
did
not
see
any
reason
for
that.
Ms.
Steer
maintained
that
the
Grievor
seemed
to
be
paranoid
and
became
more
aggressive
in
her
tone
of
voice.
The
Grievor
was
shocked
by
Ms.
Steer’s
choice
of
words
and
it
made
her
uncomfortable;
accusing
her
of
being
paranoid
was
not
appropriate.
The
Grievor
was
not
sure
where
it
was
coming
from
and
told
Ms.
Steer
she
did
not
feel
comfortable
in
the
situation
and
did
not
appreciate
her
tone
of
voice.
In
response,
Susan
Steer
leaned
forward
and
asked
“what
kind
of
tone
of
voice
would
that
be”?
The
Grievor
testified
that
it
was
an
angry
voice
and
Ms.
Steer
mentioned
she
was
paranoid
which
Ms.
Steer
denied.
The
Grievor
asked
that
the
meeting
come
to
an
end
and
wanted
a
union
representative.
Ms.
Steer
said
the
meeting
was
at
an
end
and
the
Grievor
-
57
-
left
the
office
crying
because
this
was
a
stressful
situation
and
Ms.
Steer
had
insinuated
she
was
paranoid.
The
Grievor
felt
intimidated
and
walked
toward
her
desk
where
she
encountered
Mr.
Ferguson
and
told
him
in
detail
what
happened
in
the
office.
The
Grievor
filed
notes
that
she
made
of
the
conversation
in
which
she
stated
that
“This
person
is
going
on
a
personal
crusade
against
me”.
The
Grievor
testified
she
felt
this
way
because
Ms.
Steer
said
she
was
paranoid
and
had
issues
which
was
a
strong
personal
opinion
from
a
manager.
The
Grievor
stated
that
she
connected
the
conversation
to
the
December
6,
2007
meeting
because
she
had
made
it
clear
what
were
her
personal
priorities
and
did
not
want
her
manager
digging
into
her
personal
life
and
making
personal
comments,
assumptions,
accusations
and
observations
about
her.
Ms.
Steer
had
assumed
the
Grievor
was
not
focused
and
brought
it
up
both
on
December
6,
2007
and
also
on
September
15,
2008
in
a
private
setting
without
witnesses.
The
Grievor
returned
to
her
desk
very
upset
and
told
her
supervisor,
Mike
Warner,
that
she
was
leaving.
She
returned
the
next
day
and
felt
stressed
out,
nervous
and
uncomfortable.
-
58
-
The
Grievor
saw
her
doctor
on
September
17,
2008
because
of
the
stress
and
pressure
of
the
situation
and
was
given
a
note
by
her
doctor
to
remain
off
work
which
she
sent
to
the
company
after
speaking
to
the
Human
Resources
Department.
The
Grievor
did
not
feel
comfortable
communicating
with
Ms.
Steer
and
wanted
to
deal
with
someone
who
was
more
objective.
On
September
25,
2008,
the
Grievor
saw
her
doctor
who
recommended
she
stay
off
work
for
another
two
weeks.
On
September
26,
2008,
she
sent
an
email
to
Susan
Steer
outlining
a
complaint
against
her
concerning
the
harassing
events
that
had
taken
place
from
September
10,
2008,
onwards.
Also,
on
Friday,
September
26,
2008,
the
Grievor
received
an
email
from
Ms.
Steer
enclosing
a
sick
leave
form
to
be
completed
by
her
doctor
that
day.
The
doctor’s
office
was
closed
that
day
and
the
Grievor
informed
Chris
Yankou
of
the
situation
and
stated
she
would
attempt
to
have
the
doctor
sign
the
form
on
Monday.
The
form
was
completed
on
September
29,
2008
and
forwarded
to
the
Company
on
September
30,
2008.
On
September
29,
2008,
the
Grievor
received
a
letter
form
Susan
Steer
stating
her
benefits
were
terminated
and
requesting
a
meeting
on
October
2,
2008.
Ms.
Steer
disagreed
with
the
contents
of
the
Grievor’s
-
59
-
complaint
letter.
The
Grievor
was
shocked
when
she
received
the
letter
because
she
was
doing
everything
asked
of
her
and
had
sent
in
the
doctor’s
form
that
had
been
requested.
The
Grievor
declined
to
attend
the
meeting
because
her
doctor
had
advised
her
to
stay
off
work
after
she
explained
her
stressful
situation.
The
Grievor
did
not
attend
any
meetings
with
the
Company
prior
to
her
termination
because
of
her
doctor’s
advice.
The
Grievor
saw
the
doctor
on
October
3
and
October
7,
2008
and
sent
a
doctor’s
note
dated
October
7,
2008
to
Teranet
which
stated
that
the
doctor
had
advised
her
to
remain
off
work.
Prior
to
her
termination
on
October
9,
2008,
the
Grievor
claims
she
was
stressed
out
and
had
advised
her
doctor
of
her
stress
and
anxiety.
She
maintains
she
was
sleep
walking,
had
chest
pains
and
headaches
and
the
doctor
had
prescribed
medications
for
her.
When
she
received
the
letter
of
termination
on
October
9,
2008,
she
was
shocked
and
the
termination
added
to
her
stress
and
anxiety.
She
claimed
to
be
unaware
of
Teranet’s
“serious
concerns
regarding
[her]
performance
or
[her]
responsibilities”
as
set
out
in
the
termination
letter
and
felt
all
the
performance
issues
had
been
resolved
when
she
completed
the
performance
plan.
She
also
denied
removing
her
personal
items
from
the
-
60
-
office,
with
the
exception
of
her
children’s
pictures.
The
Grievor
maintained
that
no
one
from
Teranet
had
disagreed
with
the
contents
of
her
email
or
medical
notes
and
no
one
had
asked
for
a
second
doctor’s
opinion
or
an
independent
medical
examination.
The
Grievor
testified
that
she
had
not
refused
to
respond
to
the
Company’s
inquiries
as
alleged,
nor
was
her
doctor
contacted.
The
Grievor
did
not
understand
the
basis
for
her
termination.The
Grievor
testified
that
she
refused
to
meet
with
the
Company
because
she
did
not
know
what
would
be
discussed
and
she
was
not
physically
or
emotionally
ready
to
deal
with
the
situation.
She
was
extremely
overwhelmed
and
had
followed
her
doctor’s
advice.
She
was
unaware
when
she
would
be
ready
to
meet
and
was
simply
taking
one
day
at
a
time.
She
would
have
gone
to
a
meeting
if
the
doctor
said
it
was
airight,
since
she
trusted
his
medical
advice.
The
Grievor
on
October
15,
2008,
sent
an
email
to
Susan
Steer
strongly
disagreeing
with
the
decision
to
terminate
he(
and
outlining
her
position.
The
Grievor
testified
that
she
was
unaware
of
the
surveillance
and
was
shocked
to
learn
of
it.
She
acknowledged
that
on
September
23,
-61-
2008,
she
attended
the
Land
Titles
Office
at
Service
Ontario
on
behalf
of
her
husband
to
obtain
an
abstract.
She
stated
that
she
did
errands
for
her
husband
to
get
out
of
the
house
and
to
take
her
mind
off
of
the
stress
that
she
went
through
at
Teranet.
The
Grievor
admitted
that
on
September
26,
2008,
she
went
to
the
Royal
LePage
office
on
an
errand
for
her
husband
to
pick
up
the
mail
and
met
her
husband
in
the
parking
lot
carrying
the
mail.
She
spoke
to
her
husband
about
going
to
Colour
Tech
Marketing
to
pick
up
a
sample
brochure
for
him.
She
was
not
concerned
that
she
was
on
sick
leave
because
running
errands
was
stress
free
and
not
labour
intensive,
nor
did
it
take
up
much
time.
On
September
27,
2008,
the
Grievor
retrieved
an
open
house
sign
from
her
vehicle
and
conducted
an
open
house
for
approximately
two
hours
where
she
greeted
people,
showed
the
house,
answered
questions
and
provided
the
people
with
information
including
a
listing
document.
The
sign
at
the
house
said
Corrado
Morana
and
Dorata
Morana
(her
name)
and
the
Grievor
claimed
that
she
decided
to
do
the
open
house
on
that
day
as
she
wanted
to
get
out
of
the
house,
and
conducting
the
open
house
was
stress
-
62
-
free.
She
was
not
paid
for
conducting
the
open
house.
Her
husband
was
paid
a
commission
by
Royal
LePage
when
the
house
was
sold.
The
Grievor’s
husband
had
been
a
full
time
real
estate
agent
since
2000
and
she
had
received
a
real
estate
license
in
2001,
but
was
not
full
time
as
she
had
other
full
time
jobs
in
order
to
provide
a
more
stable
income.
The
Grievor
admitted
that
her
name
is
on
all
the
real
estate
signs
and
used
in
advertising.
Her
husband
uses
their
image
on
his
website,
his
business
cards
and
in
newspaper
ads,
but
that
does
not
mean
she
is
engaged
in
real
estate.
However,
the
Grievor
pays
dues
and
is
an
active
member
of
the
Real
Estate
Council
of
Ontario,
but
that
does
not
mean
she
is
selling
real
estate.
She
has
not
received
a
T4
for
income
tax
from
Royal
LePage
since
2004
or
2005,
nor
has
she
had
any
real
estate
income
since
then.
The
Grievor
became
aware
in
2007
from
a
co-worker
that
Susan
Steer’s
husband
was
involved
in
real
estate
in
Brampton
where
the
Grievor’s
husband
practices
and
eventually
found
out
that
Ms.
Steer’s
husband
was
employed
by
Re
Max
which
competed
with
Royal
LePage.
The
Grievor
is
not
familiar
with
Susan
Steer’s
spouse,
but
she
became
-63
-
concerned
because
when
Susan
Steer
found
out
the
Grievor
was
a
real
estate
agent
her
behavior
toward
the
Grievor
changed
and
she
became
suspicious
of
the
Grievor’s
calls
which
Ms.
Steer
brought
up
at
the
December
6,
2007
meeting
on
the
assumption
that
the
calls
were
of
a
real
estate
nature.
The
Grievor
felt
the
tone
of
Susan
Steer’s
conversation
with
her
changed
and
was
suspicious
and
indifferent
from
time
to
time
and
made
her
feel
uncomfortable
after
she
returned
from
maternity
leave.
The
Grievor
testified
that
she
did
not
act
as
a
real
estate
representative
in
2006
and
2007
and
did
not
pay
her
monthly
real
estate
agency
fees
in
those
years,
but
paid
fees
to
the
Toronto
Real
Estate
Board
and
others
in
order
to
maintain
her
ilcense.
She
was
required
to
pay
her
agency
fees
again
in
2008
but
delayed
payment
because
she
did
not
have
the
funds.
She
was
not
involved
in
any
real
estate
deals
for
the
period
2007
to
2012.The
Grievor
continued
to
see
her
doctor
for
stress
in
2008,
2009
and
2010
because
of
stress
and
sleeping
problems
for
which
he
prescribed
drugs.
She
did
not
return
to
work
right
away
and
applied
for
and
received
Employment
Insurance
(E.l.)
until
February
of
2009
when
the
doctor
-64
-
provided
her
with
a
letter
stating
she
was
airight.
In
order
to
receive
El
benefits,
the
Grievor
submitted
a
doctor’s
report
from
Doctor
Jason
Black
dated
November
19,
2008,
which
indicated
that
she
had
seen
the
doctor
on
September
17,
2008,
and
was
advised
to
take
a
medical
leave
from
the
stressful
environment
at
Teranet
under
the
management
of
Susan
Steer,
but
did
not
have
to
stop
doing
real
estate
broker
and
mortgage
broker
activities;
and
she
was
subsequently
seen
in
October
and
continues
to
require
treatment.Doctor
Black
also
wrote
a
letter
September
21,
2010,
in
which
he
indicated
that
he
had
advised
the
Grievor
in
2008
that
she
could
pursue
various
activities
including
real
estate
activities
on
behalf
of
her
husband
such
as
attending
open
houses
but
that
it
was
not
until
the
end
of
February
2009
that
he
consented
to
her
seeking
alternative
work
to
that
of
Teranet,
but
in
a
limited
capacity
to
avoid
stress.
He
also
stated
that
it
was
not
until
the
end
of
February
2009
that
he
consented
to
the
Grievor
being
able
to
seek
alternative
work.
The
Grievor
also
filed
a
series
ofreports
to
El
which
indicate
her
lack
of
availability
for
work
from
November
24,
2008
until
February
13,
2009.
-65
-
The
Grievor
testified
that
at
the
end
of
February
2009,
she
was
paid
for
doing
a
freelance
project
which
lasted
about
a
month
and
that
El
was
aware
of
it.
Since
then
she
has
looked
for
work
and
had
a
temporary
position
which
became
full
time
on
October
7,
2011
and
was
expected
to
last
until
January
2013.
She
has
had
no
other
employment
since
she
was
terminated
other
than
helping
her
husband
in
a
limited
way,
because
lack
of
financial
resources
caused
her
to
take
her
children
out
of
day
care
requiring
her
to
stay
at
home.
In
order
to
interview
for
a
job
she
had
to
co
ordinate
with
her
husband
to
have
him
stay
with
the
children.
She
has
not
received
any
payment
for
her
real
estate
work
other
than
$5,000.00
she
received
as
a
mortgage
broker
for
work
she
did
at
the
end
of
2009.
The
Grievor
filed
her
tax
returns
for
the
period
2007
until
2010
which
reflected
that
her
husband
transferred
a
portion
of
his
income
to
her
in
order
to
reduce
his
income
tax.
The
Grievor
did
not
earn
the
income
that
resulted
from
that
practice,
known
as
income
splitting.
The
tax
returns
also
showed
other
income
the
Grievor
earned
during
that
period.
The
Grievor
testified
that
she
regularly
searched
for
employment
and
applied
for
a
number
of
jobs
and
tried
to
get
anything
she
could.
She
had
a
number
of
job
interviews
from
February
2009
until
October
2011,
but
had
difficulty
-66
-
obtaining
other
employment
and
would
have
taken
anything
that
came
her
way.
She
eventually
obtained
employment
in
2011
with
Peel
Paramedia.
Termination
of
her
employment
has
impacted
the
Grievor
financially
and
emotionally.
She
has
received
further
treatment
for
stress
from
Dr.
Black.
When
cross-examined,
the
Grievor
admitted
to
signing
an
offer
of
employment
on
November
22,
2004,
to
commence
employment
as
a
TCA
effective
January
4,
2005.
The
Grievor
also
signed
a
confidentiality
agreement
on
that
date
acknowledging
that
Teranet
acquired
and
developed
“confidential
data”
that,
as
an
employee,
the
Grievor
was
prevented
from
disclosing
“to
any
person,
firm
or
corporation”.
The
Grievor
went
on
maternity
leave
on
September
5,
2005
and
returned
December
20,
2006.
Upon
her
return
she
received
additional
training
and
support
to
assist
her
in
integrating
into
the
workplace
and
completing
the
TCA
program
requirements.
Ms.
Steer
became
her
manager
on
December
20,
2006
when
she
returned
from
maternity
leave.
The
only
complaint
the
Grievor
.made
against
Susan
Steer
was
in
a
letter
dated
September
22,
2008
and
delivered
September
26,
2008,
notwithstanding
that
the
Grievor
alleges
continual
harassment.
The
only
grievance
filed
by
the
Grievor
was
on
October
27,
2008
which
led
to
this
arbitration.
-67
-
The
Grievor
completed
her
training
and
was
certified
as
a
TCA
as
of
March
2007.
Some
months
later,
on
October
26,
2007,
she
was
placed
on
a
performance
plan
which
ended
on
January
26,
2008.
While
on
the
performance
plan
the
Grievor
met
regularly
with
Cheryl
Bryant,
her
supervisor.
Ms.
Steer
did
not
participate
in
those
meetings.
On
February
1,
2008,
in
a
memorandum
to
the
Grievor,
Susan
Steer
advised
that
she
was
pleased
to
advise
that
the
Grievor
had
met
all
the
requirements
of
the
Performance
Development
Plan
and
that
she
would
continue
in
her
position
as
a
TCA
and
would
be
required
to
meet
the
minimum
standard
requirements.In
March
of
2008,
the
Grievor
received
a
Personal
Performance
Review
for
the
period
January
4,
2007
until
January
7,
2008
which
stated
the
Grievor’s
standard
measurement
rate
was
3.36
and
that
development
was
required
and
also
that
the
Grievor
had
“struggled
for
most
of
the
year
with
low
production
and
a
high
error
rate”.
The
acceptable
SM
range
was
between
3.40
and
6.09.
In
2008,
the
Grievor
continued
to
struggle
with
low
production
and
a
high
error
rate.
She
testified
that
“the
numbers
show
what
they
show
and
the
error
rate
is
what
it
is”,
but
she
stayed
focused
and
-68
-
worked
hard.
In
January
2008,
the
Grievor’s
SM
level
was
2.79
and
her
error
rate
was
29.5%.
From
February
to
August
her
error
rate
exceeded
24%
each
month,
while
her
SM
rate
varied
from
month
to
month.
For
example,
in
February
it
was
5.06
and
in
March
it
was
2.9,
while
in
April
it
was
3.23.
The
Grievor
acknowledged
that
all
of
her
work
had
to
be
reviewed
by
a
Senior
TCA
and
that
Teranet
was
paying
two
people
for
100%
of
the
work.
On
May
20,
2008,
a
block
of
work
that
the
Grievor
had
completed
was
returned
in
its
entirety.
The
Grievor
stated
that
she
was
focused
and
worked
hard
on
the
block,
but
admitted
the
error
rate
was
unacceptable.The
Grievor’s
performance
shows
chronic
but
periodic
lateness
in
2008.
On
August
11,
2008,
Ms.
Steer
spoke
to
the
Grievor
indicating
she
had
used
all
of
her
vacation
time
and
floaters
and
suggested
she
should
bank
some
time
if
she
wanted
more
time
off.
The
Grievor
stated
that
Ms.
Steer
was
not
harassing
her
when
she
spoke
to
her
about
her
time.
The
Grievor
admitted
Teranet’s
code
of
conduct
entitled
her
to
choose
how
to
spend
her
non-working
hours
including
choosing
to
work
part
time
for
another
organization
provided
there
was
no
conflict
with
-69
-
Teranet.
She
understood
she
had
to
provide
a
written
declaration
if
there
was
a
conflict
or
potential
conflict
between
Teranet
and
another
business
or
employment.
She
also
understood
she
was
to
use
Teranet’s
time
for
Teranet
business
and
not
to
use
Teranet’s
computers
for
another
business.
On
December
6,
2007,
the
Grievor
met
with
Susan
Steer
and
Cheryl
Bryant
to
discuss
her
real
estate
activities.
She
admitted
she
was
a
real
estate
broker
and
her
husband
was
in
real
estate,
however,
she
stated
that
she
had
no
real
estate
income
since
2004.
The
Grievor
was
shown
a
bundle
of
documents
outlining
the
real
estate
marketing
activities
of
Corrado
Morano,
Broker
and
Dorota
Morano,
Broker.
The
documents
contain
pictures
of
both
the
Grievor
and
her
husband,
indicating
that
both
are
operating
the
business
and
show
a
contact
sheet
for
the
Grievor,
as
a
mortgage
broker.
The
Grievor
admitted
she
was
a
mortgage
broker
for
the
company.
The
Grievor
maintained
that
the
documents
were
prepared
by
her
husband
who
manages
everything.
In
addition,
the
documents
contain
an
advertisement
from
the
Caledon
Enterprise,
a
newspaper
containing
her
picture
and
her
husband’s
advertising
the
real
estate
business.
The
advertisement
also
shows
a
sign
that
states
‘sold’
with
the
names
on
it
of
Corrado
Morano
and
Dorota
-70-
Zmarlek,
the
Grievor’s
maiden
name.
The
Grievor
stated
her
husband
had
permission
to
put
her
picture
in
the
paper
to
keep
his
business
as
there
is
a
general
perception
that
a
couple
works
better.
She
agreed
that
she
and
her
husband
hold
themselves
out
to
the
world
as
being
in
business,
but
her
husband
is
the
one
who
is
in
business
full
time.
The
documents
also
refer
to
homes
“listed
with
Corrado
and
Dorota”
and
also
refers
to
them
as
a
“husband
and
wife
team”.
There
are
three
pages
of
pictures
with
sold
signs
showing
the
Grievor
and
her
husband
with
happy
clients
and
a
further
page
in
the
Caledon
Enterprise
dated
October
18,
2006,
picturing
the
Grievor’s
twins
and
the
Grievor
and
her
husband
referring
to
a
“family
approach”
and
a
“husband
and
wife
team”.
Also,
there
is
a
document
showing
the
Grievor
and
her
husband,
which
contains
sales
statistics
in
Vaughn.
On
March
5,
2008,
there
is
a
picture
of
the
Grievor
and
her
husband
referring
to
them
as
brokers
and
stating
“husband
and
wife
teamwork”
above
their
pictures.
The
Grievor
claimed
the
sales
were
made
by
her
husband
and
that
she
hasn’t
made
any
money
in
real
estate.
She
acknowledged
that
the
advertisement
looks
like
we
are
running
the
business
together
and
indicates
that
“both
he
and
I
received
the
Director’s
Platinum
Award”.
She
-71-
agreed
the
website
holds
out
that
they
are
clearly
in
business
together.
A
further
page
showing
the
pictures
of
the
Grievor
and
her
husband
contains
a
series
of
testimonials
indicating
“Our
clients
state
their
opinions
of
us”,
which
is
supportive
of
the
Grievor
and
her
husband.
Another
page
in
the
Caledon
Enterprise
dated
November
14,
2007
has
a
picture
of
the
Grievor
standing
beside
a
sold
sign
with
both
her
name
and
her
husband’s
name
and
another
picture
of
her
and
her
husband
with
a
reference
to
husband
and
wife
teamwork.Also,
on
May
23,
2007,
the
Caledon
Enterprise
contains
an
advertisement
for
a
charity
barbeque
and
car
wash
where
the
Grievor
admits
to
being
present
next
to
a
picture
of
a
Royal
LePage
real
estate
sign
with
her
name
and
her
husband’s
name.
There
is
a
second
picture
of
her
and
her
husband
and
a
real
estate
advertisement
with
their
names
again
referring
to
“husband
and
wife
teamwork”.
On
October
8,
2005,
there
is
a
Caledon
Enterprise
advertisement
showing
happy
clients
with
sold
signs
containing
the
names
.of
the
Grievor
and
her
husband
and
a
separate
picture
of
the
Grievor
and
her
husband
as
sales
representatives.
In
the
same
newspaper
on
July
19,
2006,
there
is
an
advertisement
for
world
cup
-
72
-
soccer
showing
the
Grievor,
her
husband
and
her
twins
and
containing
a
real
estate
advertisement.
The
Grievor
admitted
that
anyone
looking
at
the
documents
could
see
that
she
was
engaged
in
the
real
estate
business
but
that
she
intended
to
help
her
husband’s
real
estate
business
by
putting
her
face
and
her
children’s
face
on
the
advertising
and
getting
testimonials
from
people.
She
admitted
she
would
be
perceived
as
part
of
the
business.
She
also
admitted
clients
had
met
her
during
the
course
of
her
husband’s
dealings
with
them
and
the
testimonials
suggest
she
was
actively
involved
in
the
business
and
“state
their
opinion
of
us”.
The
Grievor
admitted
to
being
actively
involved
with
the
people
who
provided
testimonials
as
part
of
her
husband’s
full-time
business
by
helping
her
husband,
however
she
made
no
income.
She
admitted
to
holding
herself
out
as
an
active
participant
in
the
business.
She
is
also
described
along
with
her
husband
as
“awesome
agents
and
negotiators”.
The
Grievor
stated
that
she
did
not
know
what
the
meeting
of
December
6,
2007
was
about
and
she
was
not
told
who
was
looking
into
the
website;
the
information
was
personal
to
her.
She
acknowledged
that
-
73
-
her
Employer
was
entitled
to
be
concerned
about
a
potential
conflict
of
interest.
She
did
not
inform
Teranet
of
her
situation
because
she
focused
on
her
job.
She
was
upset
because
she
was
not
told
the
purpose
of
the
meeting
but
agreed
that
Teranet
could
be
upset
because
she
did
not
tell
Teranet
about
her
real
estate
business.
The
Grievor
admitted
she
was
not
disciplined.The
Grievor
testified
that
while
occasionally
she
made
calls
to
her
husband
related
to
real
estate,
the
majority
of
her
calls
were
for
personal
reasons.
She
was
only
asked
about
her
phone
calls
and
Susan
Steer
and
Cheryl
Bryant
took
her
at
her
word.
She
was
not
asked
whether
she
used
Teranet’s
computer
to
assist
her
husband
in
his
business.
When
shown
a
series
of
emails
from
2007
recovered
from
her
Teranet’
computer,
which
were
dated
prior
to
the
December
6,
2007
meeting,
the
Grievor
agreed
that
it
was
reasonable
for
Teranet
(Elgin
Farewell)
to
conclude
that
she
and
her
husband
had
exchanged
emails
concerning
the
real
estate
business.
At
the
December
6,
2007
meeting,
the
Grievor
did
not
volunteer
that
she
used
Teranet’s
computers
in
breach
of
the
Code
of
Conduct
because
she
was
not
asked
and
responded
to
specific
questions.
The
meeting
was
concerned
about
the
Grievor’s
use
of
her
cell
phone.
She
was
on
a
-
74
-
V
performance
plan
and
admitted
it
was
reasonable
for
Ms.
Steer
and
Ms.
Bryant
to
be
concerned
about
her
focus
and
attention
to
detail,
since
she
was
on
a
performance
plan
and
had
low
productivity
and
it
was
also
reasonable
for
them
to
be
concerned
about
her
involvement
in
the
real
estate
business.
The
Grievor
understood
that
under
the
Code
of
Conduct
Teranet’s
tools
or
assets
could
not
be
used
while
working
for
another
organization,
however,
she
used
Teranet’s
assets
to
assist
her
husband.
The
Grievor
testified
that
on
September
23,
2008,
while
on
medical
leave,
she
attended
the
Registry
Office
to
get
a
printout
for
her
husband’s
real
estate
business.
On
September
26,
2008,
she
went
to
Colour
Tech
to
get
information
for
her
husband
to
use
in
his
real
estate
business
and
on
September
27,
2008,
she
conducted
an
open
house
to
help
out
her
husband.
She
stated
that
Vt
is
necessary
to
be
licensed
to
conduct
an
open
house.On
January
1,
2006,
andJanuary
1,
2007,
the
Grievor
informed
Royal
LePage
that
she
would
not
continue
as
a
real
estate
sales
representative
until
December
31,
2007,
which
exempted
her
from
paying
fees
to
Royal
LePage,
but
she
kept
her
real
estate
license
alive
during
that
-
75
-
period.
The
Grievor
became
active
again
on
January
1,
2008
and
did
not
tell
Teranet.
Accordingly,
when
she
conducted
the
open
house
on
September
27,
2008,
she
was
active
as
a
real
estate
agent.
She
agreed
that
it
was
reasonable
for
Elgin
Farewell
to
conclude
that
she
was
engaged
in
the
real
estate
business.
However,
her
doctor
had
confirmed
she
was
on
stress
leave
from
Teranet.
The
Grievor
also
agreed
that
it
was
reasonable
for
Elgin
Farewell
to
conclude
that
she
was
violating
the
disability
program
by
receiving
disability
benefits
and
working
elsewhere.
When
Teranet
asked
to
speak
to
her
because
it
had
doubts,
her
doctor
said
she
could
not
meet
with
Teranet.
The
Grievor
testified
that
she
wasn’t
sure
if
her
doctor
could
decide
whether
she
should
receive
benefits
under
the
Teranet
program.
The
Grievor
stated
that
she
did
not
talk
to
her
doctor
about
benefits
or
entitlements
but
talked
about
the
stress
she
was
under
at
Teranet
and
he
wanted
her
off
work.
When
the
Grievor
was
asked
to
come
to
a
meeting
because
of
her
activities,
she
chose
not
to
come
because
the
doctor
said
it
was
work
related
to
Teranet.
She
told
the
doctor
what
was
happening
and
was
aware
by
September
26,
2008,
that
her
benefits
might
be
suspended
when
Susan
Steer
called
and
asked
her
for
a
doctor’s
sick
leave
statement,
otherwise
she
would
lose
her
benefits.
The
Grievor
stated
she
was
stressed
out
and
did
not
have
a
conversation
with
the
doctor
about
-
76
-
her
benefits
being
cut
off.
After
she
was
asked
to
attend
the
meeting
and
her
benefits
were
cut
off,
she
told
the
doctor
about
the
situation
and
also
told
him
she
did
not
want
to
go
to
the
meeting.
The
Grievor
claimed
she
was
stressed
out
because
of
the
harassment
the
previous
year
and
not
because
of
the
manner
in
which
she
was
performing
her
duties,
since
she
was
working
hard
and
was
under
the
impression
she
was
doing
a
good
job
notwithstanding
that
between
January
2008
and
August
2008,
her
work
was
quality
controlled
and
her
monthly
error
rate
was
unacceptable.
Her
standard
minimum
requirements
varied
from
month
to
month
and
a
block
she
had
done
had
to
be
returned
to
her.
When
it
was
pointed
out
that
her
work
was
a
wholesale
failure,
the
Grievor
responded
that
she
did
not
run
from
a
challenge
and
had
asked
for
help
and
faced
the
situation
head
on
and
was
proactive
while
she
was
on
the
performance
plan.
She
maintained
that
having
a
manager
with
whom
she
did
not
have
a
good
relationship
with
did
not
make
things
easier
and
Susan
Steer
was
harassing
her.
The
Grievor
admitted
that
she
chose
not
to
come
in
to
speak
to
Teranet
about
her
real
estate
activities
and
when
Elgin
Farewell
concluded
-
77
-
that
since
she
was
well
enough
to
work
in
real
estate,
she
was
well
enough
to
work
at
Teranet
he
should
have
spoken
to
her
doctor.
The
Grievor
understood
from
her
doctor’s
notes
that
he
wanted
her
to
be
away
from
Teranet
on
stress
leave,
but
to
get
out
of
the
house
so
as
to
help
her
get
better.
She
stated
that
her
doctor
said
it
was
atright
to
assist
her
husband
by
getting
out
of
the
house
including
doing
daily
errands
like
picking
up
the
mail,
going
to
the
registry
office,
getting
samples
for
her
husband’s
business
and
conducting
open
houses.
She
relied
on
her
doctor
and
followed
his
orders.
The
Grievor
maintained
it
was
reasonable
for
her
to
get
medical
benefits
from
Teranet
and
her
benefits
should
not
have
been
suspended.
She
confirmed
that
her
doctor
said
it
was
alright
to
work
in
the
real
estate
business
and
she
followed
his
advice.
When
cross-examined
about
the
December
6,
2007
meeting
with
Teranet,
the
Grievor
testified
she
wanted
another
meeting
with
Teranet
to
find
out
how
management
knew
she
was
a
real
estate
representative.
She
felt
management
did
not
want
to
disclose
wtiere
the
information
came
from.
She
wanted
to
know
why
inquiries
were
initiated.
She
was
of
the
view
that
the
inquiries
were
made
because
Teranet
assumed
all
the
phone
calls
she
made
were
for
business
purposes
without
considering
her
personal
-
78
-
situation
as
a
mother
or
personal
conversations
with
her
husband.
On
January
3,
2008,
the
Grievor
emailed
Susan
Steer
stating
that
“there
were
numerous
assumptions
about
the
nature
of
the
phone
calls
received
and
made
by
me”
and
went
on
to
explain
her
position
concerning
the
phone
calls.
Susan
Steer
responded
that
“there
was
never
an
assumption
that
every
call
you
made
was
of
a
business
nature”.
The
Grievor
found
it
unusual
that
if
someone
made
phone
calls
their
name
would
be
googled.
She
continued
to
pursue
that
issue
by
asking
for
the
meeting
of
December
18,
2007
and
sending
the
email.
At
the
meeting
on
December
18,
2008,
the
Grievor
raised
a
concern
about
management
phoning
her
at
home
on
a
flex
day
that
she
had
requested
be
changed
one
day
prior.
It
was
explained
to
her
that
there
was
a
misunderstanding
as
to
which
day
the
Grievor
would
be
at
work
and
she
was
called
at
home
because
management
thought
she
would
be
at
work
that
day.
The
Grievor
felt
she
was
being
harassed
when
Susan
Steer
called
to
ask
why
she
was
not
at
work
since
she
submitted
the
form.
The
Grievor
acknowledged
that
it
was
reasonable
for
the
employer
to
call
if
an
employee
does
not
show
up
for
work.
After
the
Grievor
explained
that
she
-
79
-
filled
out
the
proper
form
and
Susan
Steer
investigated,
there
were
no
further
consequences
to
her
nor
was
she
disciplined.
A
record
of
voice
messages
to
Cheryl
Bryant
from
the
Grievor
and
maintained
by
Teranet
were
reviewed
with
her
on
cross-examination.
A
number
of
those
calls
stated
she
would
not
be
coming
and
informing
Ms.
Bryant
of
her
telephone
number
and
stating
that
Ms.
Bryant
could
call
her.
On
September
10,
2008,
the
Grievor
left
a
voice
message
stating
she
was
dealing
with
a
personal
matter
and
wouldn’t
be
coming
in.
The
message,
similar
to
others
she
had
left,
stated
“If
you
want
to
get
a
hold
of
me,
you
can
call
me
at
[telephone
number]
—
that
is
my
cell
phone
number”.
There
was
no
mention
of
there
being
an
emergency
or
of
a
sick
father-in-
law.
The
call
to
the
Grievor
by
Susan
Steer
was
to
inform
her
that
she
had
no
time
left
and
the
time
off
would
be
unpaid
and
was
consistent
with
a
similar
call
on
August
11,
2008.
The
Grievor
was
at
home
with
her
children
while
her
husband
was
at
the
hospital
and
she
did
not
answer
Ms.
Steer’s
call.
Ms.
Steer
called
again
and
the
Grievor
did
not
answer.
She
testified
that
these
two
calls
to
her
home
were
upsetting
and
harassing
and
she
did
not
believe
anyone
should
have
called
her.
-
80
-
On
September
22,
2008,
the
Grievor
made
a
complaint
against
Susan
Steer
which
included
allegations
that
the
phone
calls
that
Ms.
Steer
made
were
“inappropriate
and
harassing”
and
an
“unjustifiable
intrusion
with
her
personal
life”.
The
complaint
states
that
the
Grievor
was
dealing
with
a
family
emergency
and
her
father-in-law
was
sick
and
stated
that
she
would
not
be
in.
The
Grievor
admitted
that
her
voice
message
on
September
10,
2008
did
not
refer
to
an
emergency
family
situation
and
that
Ms.
Steer
would
have
no
knowledge
of
her
situation
and
would
not
have
known
why
the
Grievor
had
not
returned
.her
call.
Nor
would
Ms.
Steer
have
known
that
the
Grievor
was
not
in
a
position
to
discuss
her
family
circumstances
with
a
non-family
member
as
alleged
in
her
complaint.
The
Grievor
agreed
that
she
left
a
message
to
call
her
but
when
she
was
called
it
was
an
intrusion
into
her
personal
life.
When
advised
on
cross
examination
that
there
was
no
way
that
Susan
Steer
could
know
the
Grievor
was
dealing
with
a
family
situation,
the
Grievor
refused
to
withdraw
her
allegation
of
harassment.
Also,
the
Grievor
did
not
know
the
purpose
of
Ms.
Steer’s
call
until
days
later
but
held
to
her
allegations
that
the
calls
were
an
unjustifiable
intrusion
into
her
personal
life.
-
81
-
The
Grievor
returned
to
work
on
September
11,
2008,
and
expected
Cheryl
Bryant
to
comment;
Susan
Steer
was
not
in
the
office
that
day.
When
Susan
Steer
returned
to
the
office
the
following
Friday,
she
did
not
talk
to
the
Grievor
about
the
phone
calls.
The
Grievor
was
of
the
opinion
that
since
she
had
been
called
at
home,
it
was
the
employer’s
obligation
to
follow-up.
The
Grievor
expected
Cheryl
Bryant
to
ask
if
she
was
airight,
but
that
did
not
happen.
Ms.
Bryant
had
no
knowledge
that
there
was
a
family
emergency.
When
Ms.
Steer
did
not
talk
to
the
Grievor,
she
found
the
silence
to
be
intimidating
and
harassing.
The
Grievor
could
have
asked
Ms.
Steer
what
the
September
10
calls
were
about,
but
did
not.
When
the
Grievor
met
with
Susan
Steer
on
September
15,
2008,
she
was
upset
since
she
had
concluded
the
two
phone
calls
on
September
10
were
an
unjustifiable
intrusion
into
her
family
life
and
she
expressed
her
displeasure
to
Ms.
Steer.
When
the
Grievor
declined
to
discuss
her
delicate
family
situation,
Susan
Steer
said
that
she
seemed
to
be
paranoid
about
something
she
was
hiding.
The
Grievor
asserted
that,
based
on
her
voice
message,
Susan
Steer
should
not
have
tried
to
contact
her
more
than
once
and
it
had
made
the
Grievor
quite
uncomfortable.
-
82
-
The
Grievor
claimed
that
because
of
her
termination,
her
husband’s
business
was
damaged
to
the
advantage
of
Ms.
Steer’s
husband
because
her
husband
had
to
cover
costs
that
he
did
not
have
to
cover
when
the
Grievor
was
working
and
had
an
income.
As
a
result,
her
husband
had
less
money
to
spend
for
his
business.
The
Grievor
also
reviewed
her
income
and
stated
that
a
significant
portion
of
it
was
due
to
legitimate
income
splitting
with
her
husband
for
tax
purposes,
but
that
she
had
not
earned
that
income.
When
re-examined,
the
Grievor
stated
that
subsequent
to
completing
her
performance
plan
she
was
not
placed
on
another
plan.
Nor
was
she
disciplined
for
lateness.
She
acknowledged
that
when
she
left
the
voice
message
on
September
10,
2008,
she
was
not
aware
of
the
full
details
of
her
father-in-law’s
condition
and
could
not
elaborate.
Dr.
Jason
Black
has
been
a
family
practitioner
since
1999
in
private
practice.
The
Grievor
has
been
a
patient
of
his
since
August
2001.
Dr.
Black
filed
excerpts
from
the
Grievor’s
chart
which
he
referred
to
in
his
testimony.
The
chart
for
September
17,
2008,
mentions
that
the
Grievor
awakened
at
2:00
a.m.
The
chart
also
states
“discussed
with
H.R.
—
-
83
-
suggesting
medical
leave
from
work”.
Dr.
Black
testified
that
the
Grievor
mentioned
that
she
was
quite
stressed
and
was
awakening
in
the
middle
of
the
night.
Dr.
Black
gave
the
Grievor
a
note
stating,”[the
Grievor]
was
advised
a
medical
leave
from
work.
She
will
follow-up
in
the
office
next
week”.Dr.
Black
saw
the
Grievor
on
September
25,
2008,
and
his
chart
states
“she’ll
get
up
in
the
middle
of
the
night,
fragmented
sleep,
not
ready
to
RTW”.
He
testified
that
he
prescribed
orazapam
at
bedtime
as
needed
and
that
he
told
the
Grievor
to
take
an
additional
two
weeks
off
work
and
provided
her
with
a
note
to
that
effect.
The
basis
for
the
note
is
that
the
Grievor
remained
stressed
and
unable
to
sleep.
Dr.
Black
could
not
recall
how
the
Grievor
appeared
on
September
17
or
September
25.
He
also
felt
the
Grievor
was
not
coping
well,
which
was
stress
related,
and
she
needed
assistance.On
September
29,
2008,
he
received
the
Teranet
form
which
he
filled
out.
His
chart
noted
that
the
Grievor
remains
anxious.
He
testified
that
she
had
“anxiety
stress”
and
her
symptoms
exhibited
decreased
concentration
and
ability
to
focus.
He
advised
the
Grievor
to
rest
for
two
weeks
and
-84-
prescribed
medication.
He
did
not
provide
a
return
to
work
date
because
the
Grievor
was
not
ready
to
return
which
was
his
medical
opinion.
On
October
3,
2008,
Dr.
Black’s
chart
stated
that
work
was
disputing
the
Grievor’s
time
off
and
wanted
her
to
come
in
for
a
meeting.
The
Grievor
was
waking
up
at
night
and
was
taking
medication
and
getting
four
or
five
hours
of
sleep.
The
chart
also
stated
that
the
Grievor’s
supervisor
was
tough
on
her
and
the
supervisor’s
husband
was
a
real
estate
agent.
Also
the
Grievor
was
a
part
time
real
estate
agent.
The
chart
states
“no
work
activities
at
all”
and
Dr.
Black
testified
that
he
recommended
no
work
activities
including
meetings.
Dr.
Black
met
with
the
Grievor
again
on
October
7,
2008.
The
chart
reflected
and
the
testimony
confirmed
that
the
Grievor
had
no
contact
with
work
and
her
benefits
were
cut
off.
The
Grievor
had
frontal
headaches,
nausea
and
chest
discomfort
and
“feels
unable
to
return
to
work”.
Dr.
Black
testified
that
the
Grievor
had
tension
headaches
resulting
from
the
stress
at
work
and
the
cut
off
benefits.
He
provided
the
Grievor
with
a
note
which
stated
that
the
Grievor
“is
advised
to
remain
off
work
and
to
avoid
work
activities.
She
will
follow-up
next
week”.
-85-
Dr.
Black
saw
the
Grievor
on
October
15,
2008,
and
noted
the
Grievor
had
been
terminated
on
October
8,
2008
by
her
manager
and
that
she
filed
a
complaint
which
may
take
six
to
eight
months
to
resolve.
The
Grievor
was
still
getting
up
at
night,
remained
anxious
and
had
seen
a
lawyer.
He
did
not
recall
how
the
Grievor
presented.
On
November
5,
2008,
Dr.
Black’s
chart
indicates
that
the
Grievor
remained
stressed
and
awakens
at
night.
It
also
notes
her
grievance
was
denied.
He
testified
that
his
diagnosis
was
panic
and
anxiety.
On
November
10,
2008,
Dr.
Black
saw
the
Grievor
and
noted
that
the
Union
had
asked
her
to
come
in
and
that
she
was
asking
for
reinstatement
to
another
department.
The
chart
also
stated
and
he
confirmed
the
Grievor
remained
stressed
and
he
was
aware
of
her
job
as
a
real
estate
agent.
He
noted
and
testified
that
the
Grievor’s
cough
subsided
when
she
was
not
at
work.
He
stated
that
she
requested
he
write
a
note
for
her
Union.
Dr.
Black
wrote
the
following
note
dated
November
19,
2008.
‘This
note
is
written
at
the
request
of
my
patient
Dorota
Morana.
On
September
17,
2008,
Dorota
expressed
symptoms
of
a
change
in
mood
secondary
to
work
stress
from
Teranet.
I
was
aware
that
she
also
held
a
real
estate
agent
license.
She
was
advised
to
take
a
medical
leave
from
the
-
86
-
stressful
environment
at
Teranet.
Dorota
did
not
have
to
stop
doing
real
estate
work.
Mrs.
Morana
was
seen
in
follow
up
in
the
office
on
September
25,
2008.
She
required
an
additional
medical
leave
from
Teranet.
On
October
7,
2008,
she
described
tension
headaches
secondary
to
Teranet
as
the
work
place
continued
to
contact
her.
On
October
15,
2008,
Dorota
explained
she
was
terminated
from
Teranet.
Dorota
was
last
seen
on
November
5,
2008.
She
continued
to
require
treatment
for
tension
headaches.
I
trust
this
information
is
helpful.”
On
November
24,
2008,
the
Grievor
saw
Dr.
Black
who
recorded
that
the
Grievor
“needs
to
alter
note”
and
the
“employment
office
needs
note”.
The
chart
also
stated
-
advised
time
off
work
for
medical
reasons.
Dr.
Black
testified
that
he
kept
the
note
vague
because
he
did
not
know
where
it
would
end
up.
He
was
told
to
change
the
note
and
notify
the
Grievor.
The
note
filed
and
signed
by
Dr.
Black
is
as
follow:
“This
note
is
written
at
the
request
of
my
patient
Dorota
Morana.
On
September
17,
2008,
Dorota
expressed
symptoms
of
a
change
in
mood
secondary
to
work
stress
from
Teranet.
I
was
aware
that
she
also
held
a
real
estate
agent
license.
She
was
advised
to
take
a
medical
leave
from
the
stressful
environment
at
Teranet,
under
the
management
of
Susan
Steer.
Dorota
did
not
have
to
stop
doing
real
estate
work.
Mrs.
Morana
was
seen
in
follow
up
in
the
office
on
September
25,
2008.
She
required
an
additional
medical
leave
from
Teranet.
On
October
7,
2008,
-
87
-
she
described
tension
headaches
secondary
to
Teranet
as
the
work
place
continued
to
contact
her.
She
also
experienced
problems
with
sleeping.
Dorota
has
last
seen
on
November
5,
2008.
She
continued
to
require
treatment
for
tension
headaches
and
for
sleep.
I
trust
this
information
is
helpful.”
Dr.
Black
testified
that
the
letter
contained
his
medical
opinion.
He
testified
that
the
Grievor
did
not
have
to
stop
her
real
estate
work
and
that
she
was
off
on
stress
leave
from
her
workplace.
In
Dr.
Black’s
opinion
the
Grievor
could
not
work
at
that
particular
place,
i.e.,
Teranet.
Dr.
Black
could
not
recall
his
conversation
but
confirmed
the
letter
reflected
his
medical
opinion.On
December
1,
2008,
Dr.
Black
saw
the
Grievor.
His
chart
indicates
that
the
Grievor
“spoke
to
a
lawyer
—
adjustments
made
in
letter”
and
that
the
Grievor
was
asking
for
reinstatement.
The
chart
also
states
that
Dr.
Black
revised
the
letter.
That
letter
provided
further
that
the
Grievor
did
not
have
to
stop
her
work
as
a
mortgage
broker.
That
letter
represented
Dr.
Black’s
medical
opinion.
-88-
On
September
21,
2010,
Dr.
Black
wrote
that
the
Grievor
was
able
to
return
to
work
but
he
could
not
recall
the
basis
for
his
opinion.
That
letter
is
as
follows:To
Whom
It
May
Concern:
“I
saw
Dorota
on
September
16,
2010,
regarding
her
headaches,
stress,
and
sleeping
disorder
related
to
her
employer
Teranet.
Dorota
to
date
has
not
fully
recovered
and
requires
ongoing
treatment
and
medication
when
necessary.
I
have
advised
Dorota
from
the
beginning
of
her
diagnosis
in
2008
to
pursue
activities
that
can
help
make
her
feel
at
ease.
Getting
out
of
the
house,
spending
time
with
her
twin
children,
helping
her
husband
with
his
real
estate
activities
such
as
attending
open
houses,
were
all
positive
activities
that
could
help
put
her
mind
at
ease
and
assist
in
her
recovery.
It
was
not
until
the
end
of
February
2009
that
I
consented
to
her
being
able
to
seek
alternative
work
to
that
of
Teranet,
but
that
the
same
must
be
conducted
in
a
limited
capacity
so
as
to
avoid
stress.I
continue
to
emphasize
that
employment
Dorota
is
to
attempt,
must
remain
in
a
capacity
in
accordance
with
her
medical
condition
and
medical
treatment.
I
also
encourage
her
to
continue
doing
activities
that
may
assist
her
in
putting
her
mind
at
ease.”
-
89
-
Dr.
Black
was
not
contacted
directly
by
the
employer.
Also,
the
Grievor
being
engaged
in
real
estate
work
did
not
change
his
opinion
that
the
Grievor’s
leave
was
for
stress
from
her
workplace
at
Teranet
and
did
not
mean
she
was
unable
to
work
elsewhere.
When
cross-examined,
Dr.
Black
stated
that
he
did
not
review
the
Grievor’s
benefit
coverage
at
Teranet
or
whether
her
ability
to
work
would
entitle
her
to
receive
benefits
under
the
Teranet
plan.
Dr.
Black
deemed
the
request
by
Teranet
to
have
the
Grievor
come
in
for
a
meeting
on
October
3,
2008
as
work
activity.
Dr.
Black
wrote
an
initial
letter
on
behalf
of
the
Grievor
on
November
19,
2008
and
was
asked
to
change
it
on
November
24,
2008
when
he
added
that
the
stressful
environment
was
“under
the
management
of
Susan
Steer”
and
also
that
the
Grievor
“experienced
problems
with
sleeping”
and
“sought
assistance
with
this”
Dr.
Black’s
chart
on
November
24,
2008
did
not
indicate
that
he
made
any
medical
diagnosis;
the
meeting
was
to
re-draft
the
letter.
Similarly
on
December
1,
2008,
he
added
that
the
Grievor
could
work
as
a
mortgage
broker,
that
she
had
anxiety
and
difficulty
sleeping
and
was
prescribed
medication.
Dr.
Black
claimed
that
though
the
Grievor
was
on
stress
leave,
she
could
work
elsewhere
and
could
work
at
any
job
for
which
she
was
-
90
-
qualified,
but
could
not
work
at
Teranet.
The
particulars
of
stress
provided
to
Dr.
Black
by
the
Grievor
were
related
both
to
Susan
Steer
and
to
Susan
Steer’s
husband
being
a
real
estate
agent.
They
did
not
talk
about
the
Grievor’s
performance
at
work.
Dr.
Black
testified
that
he
takes
his
patients,
including
the
Grievor,
at
their
word.
When
re-examined,
Dr.
Black
testified
that
his
notes
are
not
verbatim
and
are
sometimes
interpretive.
He
maintained
the
Grievor
continued
to
have
anxieties
and
stress
and
the
calls
from
her
job
was
an
additional
stressor
and
could
account
for
her
subsequent
headaches,
chest
pains
and
sleep
problems.Scott
Fergusson
was
employed
at
Teranet
and
had
served
as
a
union
steward
and
on
the
union
executive.
On
September
15,
2008,
the
Grievor
came
to
his
desk
and
was
emotionally
distraught
and
in
tears
and
he
accompanied
her
out
of
the
office
where
she
recounted
the
details
of
her
meeting
with
Susan
Steer.
He
stated
the
Grievor
left
work
at
10:00
a:m.
-91-
Argument
Teranet
argues
that
the
Grievor
was
a
short
term
employee
and
it
acted
fairly,
reasonably
and
in
good
faith
in
terminating
her
employment.
Teranet
further
maintains
there
was
no
harassment
of
the
Grievor
by
Susan
Steer
and
Susan
Steer
did
not
participate
in
the
decision
to
suspend
the
Grievor’s
benefits
or
to
terminate
the
Grievor.
Teranet
submits
that
the
Grievor
would
have
been
laid
off
on
March
28,
2011
and
that
her
search
for
alternate
employment
was
inadequate,
that
the
income
that
she
received
from
income
splitting
with
her
husband
mitigated
any
loss
she
may
have
suffered
and
because
of
the
delay
in
the
arbitration
proceedings
from
January
8,
2010
until
April
4,
2011
caused
by
the
Grievor’s
failure
to
comply
with
the
production
orders,
she
should
not
receive
compensation
for
that
period.Teranet
submits
that
the
Grievor’s
work
was
substandard
and
inconsistent
and
not
only
was
her
work
sent
back
to
be
re-done
but
between
August
2007
and
September
2008,
the
Grievor’s
error
rate
was
higher
than
twenty
percent
(20%)
and
had
to
be
double
checked
requiring
both
two
people
to
do
her
work
and
also
the
reviewing
of
one
hundred
-
92
-
percent
(100%)
of
her
work.
When
the
Grievor
went
off
on
medical
leave,
she
had
no
unpaid
time
left
and
since
her
work
was
substandard,
a
question
arose
as
to
whether
her
medical
leave
was
legitimate.
Teranet
asserts
that
Susan
Steer
was
a
credible
manager
and
the
Grievor
needed
to
be
managed
and
Susan
Steer
did
not
harass
her,
nor
was
Susan
Steer
unfair.
Moreover,
the
Grievor’s
performance
required
that
ninety-four
percent
(94%)
of
her
work
be
sent
to
quality
control
when
the
standard
was
only
thirty
percent
(30%)
and
thus
her
work
did
not
warrant
a
second
chance.
In
addition,
both
in
May
of
2008
and
September
of
2008
entire
blocks
of
her
work
were
returned
to
her
to
be
re-done.
In
September
of
2008,
because
of
the
deadlines
set
under
Teranet’s
outside
contract,
there
were
two
unsatisfactory
blocks
done
by
the
Grievor,
but
because
of
the
deadline
only
one
was
returned
to
her.
Turning
to
the
actual
termination,
Teranet
claims
that
when
the
Grievor
met
with
Susan
Steer
on
December
6,
2007,
she
had
been
using
Teranet’s
computers
for
the
purpose
of
both
her
and
her
husband’s
real
estate
business,
but
did
not
reveal
it
to
Teranet
because,
according
to
her,
she
was
not
specifically
asked
about
using
emails
for
Teranet
business.
Moreover,
the
Grievor
became
indignant
about
an
intrusion
into
her
-
93
-
personal
life.
The
Grievor
conceded
that
it
was
reasonable
for
Mr.
Farewell
to
conclude
that
she
was
using
the
emails
to
perform
personal
work.
When
Mr.
Farewell
reviewed
the
surveillance,
he
concluded
that
the
Grievor
was
conducting
activities
in
support
of
another
business
and
the
Grievor
again
conceded
that
it
was
reasonable
for
Mr.
Farewell
to
conclude
from
the
surveillance
that
she
was
working
in
another
business.
Mr.
Farewell
after
reviewing
the
Grievor’s
complaint
letter
of
September
26,
2008,
concluded
that
the
Grievor
wasa
short
service
employee,
with
integrity
issues
whose
conduct
was
inappropriate
and
asked
for
a
meeting
with
her.
The
Grievor
claimed
that
her
doctor
advised
her
not
to
go
to
the
meeting.
Teranet
submits
there
was
no
discussion
between
the
Grievor
and
Dr.
Black
concerning
the
meeting
and
that
the
Grievor
told
Dr.
Black
that
she
did
not
want
to
come
to
the
meeting.
Her
refusal
to
attend
was
not
about
whether
she
was
medically
capable.
Teranet
argues
that
after
reviewing
the
totality
of
the
Grievor’s
situation
including
her
substandard
work
performance,
her
untrustworthiness,
her
employment
elsewhere
and
claiming
disability
benefits
from
Teranet,
Mr.
Farewell
legitimately
terminated
her
employment.
-
94
-
Teranet
maintains
that
the
medical
notes
suggested
the
Grievor
was
not
able
to
work,
but
Dr.
Black’s
ex
poste
facto
testimony
that
she
could
work
elsewhere
was
not
reasonable.
Teranet
also
submits
that
Dr.
Black
changed
his
letters
to
Teranet
on
three
different
occasions
based
on
the
Grievor’s
directions
and
she
was
in
breach
of
her
obligation
to
Teranet
while
she
was
available
for
and
seeking
work
elsewhere
while
claiming
disability
benefits
from
Teranet.
Teranet
argues
that
Dr.
Black
was
a
biased
advocate
for
the
Grievor
when
he
stated
she
could
work
elsewhere
but
not
at
Teranet
and
his
opinion
substantially
changed
and
was
an
after
the
fact
negotiated
opinion
and
he
did
not
investigate
the
Grievor’s
situation;
all
of
his
opinions
were
based
on
the
Grievor’s
self-reporting.
Accordingly,
Teranet
claims
there
is
no
basis
for
the
Grievor’s
claim
for
disability
benefits
and
no
basis
for
her
absence
from
work.
Teranet
also
claims
that
the
Grievor’s
allegations,
first
made
on
June
8,
2010,
that
she
was
terminated
to
advantage
Ms.
Steer’s
husband
who
was
a
real
estate
agent
are
not
supportable.
There
are
35,000
real
estate
agents
in
Ontario
so
that
it
is
unlikely
that
terminating
the
Grievor
would
provide
an
advantage
to
Ms.
Steer’s
husband.
Moreover,
terminating
the
-
95
-
Grievor
would
free
her
to
work
with
her
husband
and
would
be
advantageous
to
the
Grievor’s
husband.
Teranet
claims
the
Grievor’s
allegations
are
bizarre.
Teranet
argues
that
it
is
inconsistent
to
have
taken
disability
benefits
from
Teranet
while
working
elsewhere.
Teranet
maintains
the
Grievor
did
not
suffer
any
loss
of
income,
since
her
income
tax
returns
showed
that
she
and
her
husband
utilized
the
income
splitting
provisions
of
the
Income
Tax
Act
and,
accordingly,
she
received
income.
However,
in
order
to
receive
income
under
the
Income
Tax
Act,
the
Grievor
was
required
to
work
in
the
business.Teranet
argues
that
Susan
Steer
at
no
time
harassed
the
Grievor.
Ms.
Steer
was
employed
for
sixteen
(16)
years
at
Teranet
and
was
the
manager
at
the
site
where
the
Grievor
worked
and
had
limited
interaction
with
the
Grievor
who
was
more
directly
supervised
by
others.
The
Grievor
was
on
maternity
leave
until
December
20,
2006
and
was
placed
in
a
performance
plan
from
October
25,
2007
until
February
1,
2008,
where
she
was
supervised
by
Cheryl
Bryant.
She
was
placed
in
the
performance
plan
because
of
her
error
rate
and
lack
of
focus.
-
96
-
When
Ms.
Steer
met
with
the
Grievor
on
December
6,
2007,
it
was
not
a
disciplinary
meeting
but
rather
it
was
to
discuss
a
potential
conflict
of
interest
contrary
to
Teranet’s
Code
of
Conduct.
The
Grievor
who
was
aware
of
the
Code
was
asked
to
sign
a
declaration
which
she
did.
The
Grievor
was
upset
and
angry
at
the
meeting
and
was
confrontational
notwithstanding
that
she
had
been
sending
emails
about
her
or
her
husband’s
real
estate
business
on
company
time
and
on
company
equipment.
The
Grievor
was
also
adamant
that
her
phone
calls
where
personal,
but
said
nothing
about
the
emails
which
were
discovered
later.
The
Grievor
conceded
in
cross-examination
that
it
was
reasonable
for
her
employer
to
be
concerned
about
her
activities.
The
Grievor
asked
for
another
meeting
which
occurred
on
December
18,
2007,
in
order
to
find
out
how
Susan
Steer
learned
she
was
involved
in
real
estate.
Notwithstanding
that
the
information
was
googled
from
a
website,
which
was
in
the
public
domain,
the
Grievor
maintained
that
obtaining
the
information
was
an
unwarranted
interference
into
her
personal
and
private
life.
Teranet
submits
that
the
attack
on
both
Susan
Steer
and
the
Company
was
an
offensive
defense.
Also
Teranet
claims
-
97
-
that
when
the
Grievor
was
asked
whether
her
telephone
calls
were
about
her
or
her
husband’s
real
estate
business,
she
was
not
forthcoming
about
her
emails
which
indicate
the
Grievor
was
deceptive
about
the
truth
and
not
credible.On
November
7,
2007,
the
Grievor
was
not
at
work
and
had
provided
a
form
requesting
the
day
off
to
an
administrative
assistant.
According
to
the
Grievor,
Cheryl
Bryant
was
in
the
vicinity
when
the
Grievor
provided
the
form
and
she
assumed
Cheryl
Bryant
was
aware
of
her
request
for
the
day
off.
Accordingly,
the
Grievor
claims
that
when
Susan
Steer
called
her
at
home,
the
call
was
unnecessary
and
constituted
harassment
even
though
the
Grievor
acknowledges
that
the
Employer
does
call
employees
at
home
when
they
are
absent.
Cheryl
Bryant
has
no
recollection
of
overhearing
the
Grievor’s
request
for
the
day
off
and
if
she
had,
she
would
have
informed
Susan
Steer
of
the
absence
which
would
have
made
Susan
Steer’s
call
unnecessary.On
August
11,
2008,
Susan
Steer
called
the
Grievor
at
home
to
advise
her
that
she
had
used
all
of
her
paid
time
off
and
she
would
not
be
paid
for
the
full
day.
There
is
not
complaint
about
that
call.
-
98
-
On
September
10,
2008,
the
Grievor
left
a
message
that
she
would
not
be
in
because
of
a
personal
matter
and
the
message
states
“call
me
if
you
need
to”.
There
is
nothing
in
the
message
about
personal
stress
or
that
the
Grievor’s
father-in-law
was
ill.
Susan
Steer
called
the
Grievor
to
advise
her
that
she
had
no
personal
time
off
left.
The
Grievor
was
at
home
and
did
not
answer
the
phone.
In
her
email
complaint
dated
September
26,
2998,
the
Grievor
claimed
that
on
September
10,
2008,
she
left
a
message
on
Cheryl
Bryant’s
voice
mail
stating
that
“I
will
not
be
coming
in
as
I
have
an
emergency
situation
to
deal
with
in
the
family”.
Teranet
submits
that
allegation
is
simply
untrue.
Not
only
was
Susan
Steer
unaware
of
a
family
emergency,
but
the
Grievor
invited
a
call
and
did
not
pick
up
the
phone
when
Susan
Steer
called.
When
the
Grievor
returned
to
work
neither
Cheryl
Bryant
nor
Susan
Steer
initially
spoke
to
her,
which
the
Grievor
claims
she
did
not
feel
good
about.
However,
Teranet
claims
that
since
Susan
Steer
had
phoned
the
Grievor,
it
would
have
been
reasonable
to
go
to
Susan
Steer
and
ask
why
she
had
called.
On
September
15,
2008,
Susan
Steer
met
with
the
Grievor
in
her
office
to
inform
her
that
she
would
not
be
paid
for
the
full
day
off
on
-
99
-
September
10,
2008.
Teranet
maintains
that
the
Grievor
at
the
meeting
was
aggressive,
defiant
and
confrontational
and
left
the
meeting.
Teranet
argues
that
all
of
the
interactions
between
the
Grievor
and
Susan
Steer
were
for
legitimate
business
purposes
and
Susan
Steer
was
professional
and
courteous
which
is
consistent
with
all
the
documentation
filed.
Teranet
maintains
that
the
Grievor
over
reacted,
that
she
was
unpredictable
and
her
reactions
were
inappropriate
and
unacceptable
and
that
her
work
and
error
rate
were
substandard.
Teranet
submits
that
there
is
no
logical
basis
in
fact
or
in
law
to
find
that
Ms.
Steer
harassed
the
Grievor
but
rather
it
is
the
Grievor
who
harassed
Ms.
Steer.
Teranet
also
requests
that
I
draw
an
inference
that
Miles
Argue,
who
had
met
with
the
Grievor
and
Ms.
Steer,
immediately
after
the
meeting
on
September
10,
2008,
did
not
testify
and
his
evidence
would
have
supported
Ms.
Steer’s
version
of
the
meeting.
The
Grievor
was
upset
and
angry
before
coming
into
Ms.
Steer’s
office
and
her
allegations
of
harassment
are
not
credible.
-
100-
Teranet
submits
that
Susan
Steer’s
evidence
about
the
contents
of
the
meeting
on
December
6,
2007,
are
corroborated
by
Cheryl
Bryant.
Cheryl
Bryant
was
the
main
supervisory
person
who
dealt
with
the
Grievor
and
she
stated
the
Grievor’s
performance
was
unsatisfactory.
There
are
no
allegations
of
harassment
against
Cheryl
Bryant.
The
Grievor
was
made
aware
monthly
how
she
was
doing
and
was
aware
her
performance
was
substandard.
According
to
Teranet,
it
was
her
work
performance
that
created
the
stress
and
not
any
harassment
by
Susan
Steer.
Turning
to
the
Union’s
evidence,
Teranet
argues
that
at
the
conflict
meeting
on
December
6,
2007,
the
Grievor
had
used
Teranet
facilities
for
personal
business
purposes
which
she
did
not
admit
and,
accordingly,
her
failure
to
do
so
reflects
on
her
credibility.
Teranet
also
maintains
that
Dr.
Black’s
medical
opinion
of
the
Grievor
was
inconsistent
with
his
earlier
opinion
and
was
self-serving
and
the
Grievor
tailored
her
evidence
accordingly.
Teranet
maintains
that
Dr.
Black
was
an
advocate
for
the
Grievor,
was
not
credible
and
did
not
testify
as
a
licensed
doctor.
Also,
Dr.
Black
did
not
put
his
medical
mind
to
assess
the
Grievor’s
situation
and
simply
put
her
on
leave
when
she
expressed
such
a
desire.
Dr.
Black
trusted
the
Grievor
and
took
her
at
her
word;
he
did
not
explore
the
stress
-
101
-
factors
and
relied
entirely
on
her
self-reporting.
He
reported
that
Susan
Steer
was
tough
on
her
but
did
not
explore
that
situation
and
he
knew
nothing
of
the
Grievor’s
performance
issues.
Dr.
Black
re-drafted
his
letter
of
opinion
at
the
Grievor’s
request,
widened
the
medical
issues
and
advised
her
she
could
work.
Teranet
claims
the
Grievor
tailored
her
conduct
and
allegations
to
coincide
with
the
advice
of
Dr.
Black,
to
be
used
at
the
arbitration
hearing.
Dr.
Black
attempted
to
assist
his
private
practice
patient
and
stated
that
the
Grievor
could
work
but
not
at
Teranet,
and
provided
no
objective
medical
opinion.
Teranet
argues
that
Dr.
Black’s
evidence
cannot
be
relied
upon
as
it
is
totally
based
on
self-reporting.
Teranet
also
asserts
the
Grievor’s
claim
was
made
in
bad
faith
and
there
was
no
harassment.Teranet
argues
the
Grievor
is
not
entitled
to
damages,
that
the
discharge
was
justified
or
alternatively,
that
there
should
be
significant
discipline
without
back
pay.
On
September
15,
2008,
the
Grievor
in
the
meeting
with
Susan
Steer
was
insubordinate.
She
exhibited
a
lack
of
candour
throughout
all
her
dealings
including
her
dealings
with
Dr.
Black.
Her
complaints
against
Ms.
Steer
were
patently
unreasonable
and
she
delayed
the
arbitration
proceedings
by
not
complying
with
the
production
-
102-
orders
that
were
made
at
the
beginning
of
these
proceedings.
When
the
Grievor
was
shown
the
transcript
of
her
call
to
the
office
which
did
not
state
there
was
a
family
emergency
and
in
which
she
invited
a
call
she
persisted
in
maintaining
the
unanswered
calls
constituted
harassment.
Since
a
large
part
of
the
hearing
was
occupied
with
the
unsubstantiated
harassment
allegations,
Teranet
submits
that
the
Grievor
should
not
be
awarded
damages.Teranet
maintains
the
Grievor’s
tax
forms
demonstrated
she
received
income
and
that
income
should
be
set
off
against
any
damages.
Moreover,
the
Grievor’s
records
demonstrate
that
she
made
little
or
no
effort
to
mitigate
her
damages.
Further,
Teranet
argues
there
is
no
clear
and
compelling
evidence
to
suggest
the
Grievor
suffered
anything
more
than
normal
stress
or
hurt
feelings.
There
is
no
specialist’s
evidence
to
support
mental
stress
and
Dr.
Black’s
evidence
demonstrated
that
he
was
an
advocate.
There
is
no
evidence
that
any
alleged
mental
stress
experienced
by
the
Grievor
was
foreseeable
nor
was
the
Grievor
a
vulnerable
employee
and
Teranet
did
not
act
in
bad
faith.
Nor
is
this
a
case
where
punitive
damages
are
warranted.
The
termination
resulted
from
the
Grievor’s
conduct
when
she
went
on
medical
leave
and
worked
in
-
103
-
the
family
business.
The
Grievor
had
informed
the
world
she
was
in
business,
but
maintained
she
was
not;
the
Grievor
is
not
credible,
nor
was
she
candid.
Her
allegations
of
harassment
were
a
smoke
screen
and
a
red
herring
and
there
is
no
basis
for
a
finding
of
mental
distress.
Teranet
maintains
in
all
these
circumstances
there
was
just
cause
to
dismiss
the
Grievor
and
that
she
suffered
no
damage.
And
finally
Teranet
argues
that
the
Grievor
is
not
entitled
to
punitive
damages
because
there
was
not
a
separate
actionable
wrong
and
there
was
no
bad
faith.
The
discharge
was
not
exceptional
and
Teranet
properly
exercised
its
discretion.
The
Union
submits
Teranet’s
case
relied
on
two
issues,
that
of
the
Grievor’s
performance
and
that
she
worked
while
off
sick
and
claimed
disability
benefits
thereby
fraudulently
deceiving
Teranet.
The
Union
claims
that
the
Grievor’s
performance
was
irrelevant
because
Teranet
had
clear
policies
to
deal
with
substandard
performance
issues.
Insofar
as
the
Grievor’s
sick
leave
is
concerned,
it
was
open
to
Teranet
to
have
sought
a
second
opinion
and
the
Grievor
could
have
been
referred
to
a
specialist;
Teranet
made
no
effort
to
obtain
a
second
medical
opinion
and
made
a
-
104
-
decision
which
was
contrary
to
the
only
medical
evidence
available
which
was
from
Dr.
Black.
The
Union
argues
that
the
Grievor’s
termination,
which
relied
on
the
Grievor’s
performance,
was
contrary
to
its
policies
and
was
in
bad
faith.
Since
Teranet
lacked
proper
medical
evidence,
terminating
the
Grievor
based
on
a
medical
issue
is
a
further
indication
of
bad
faith.
The
Union
submits
that
Teranet’s
reliance
on
Article
11.09(d)
of
the
collective
agreement
which
provides
that
Teranet
could
terminate
an
employee
who
“gives
false
reasons
for
obtaining
a
leave
of
absence”
did
not
apply
because
the
Grievor
claimed
stress
leave
and
was
supported
by
Dr.
Black,
which
was
the
only
medical
opinion
that
Teranet
had
at
that
time.
Teranet
could
have
sought
another
medical
opinion
by
either
a
physician
or
a
qualified
specialist
to
determine
the
Grievor’s
fitness
for
work
pursuant
to
Article
23.03
of
the
collective
agreement,
but
chose
not
to
do
so.
The
Union
asserts
that
the
Grievor
took
a
leave
of
absence
so
as
not
to
be
exposed
to
the
stress
of
working
at
Teranet
and
not
for
the
purpose
of
working
elsewhere.The
Union
claims
the
Grievor
truly
believed
that
she
was
harassed
by
Susan
Steer
and
felt
belittled
and
bullied
by
her
which
is
clear
evidence
of
-
105
-
bad
faith
and
which
also
motivated
the
Grievor’s
termination.
The
Union
argues
that
the
cutting
off
of
the
Grievor’s
disability
benefits
when
she
was
absent
due
to
illness
is
a
further
example
of
bad
faith
particularly
when
the
Grievor
had
provided
a
medical
certificate
pursuant
to
Article
21.05,
as
she
was
required
to
do
in
order
to
obtain
a
leave
of
absence.
The
Union
asserts
that
when
Susan
Steer
met
with
the
Grievor
on
December
6,
2007,
she
questioned
the
Grievor
about
her
telephone
usage
and
not
about
her
emails
and
that
the
Grievor
honestly
answered
Ms.
Steer.
The
assertion
that
the
Grievor
was
untruthful
is
an
attempt
to
paint
the
Grievor
in
a
bad
light
and
reflects
on
Ms.
Steer’s
credibility.
The
Union
argues,
contrary
to
Teranet’s
assertion
that
Dr.
Black
did
not
turn
his
medical
mind
to
properly
assessing
the
Grievor’s
condition,
that
many
medical
conditions
rely
on
a
patient’s
self-reporting
and
there
is
no
evidence
that
the
Grievor
was
fabricating
her
stress.
Dr.
Black
prescribed
medication
and
after
discussing
the
Grievor’s
concerns
he
believed
she
should
be
away
from
Teranet
and
provided
a
number
of
notes
to
that
effect.
The
Union
maintains
Dr.
Black
was
honest
and
forthright
and
not
an
advocate
for
the
Grievor,
and
that
producing
more
than
one
draft
of
his
-
106-
letter
was
merely
an
attempt
to
cover
off
all
of
the
issues.
If
Teranet
did
not
believe
Dr.
Black,
it
could
have
sought
another
medical
opinion.
Moreover,
Scott
Ferguson,
who
saw
the
Grievor
on
September
15,
2008,
after
her
meeting
with
Susan
Steer,
stated
the
Grievor
was
upset
and
her
reaction
was
consistent
with
anxiety
and
stress.
The
Union
claims
that
the
Grievor
had
successfully
completed
a
performance
development
plan
as
of
January
1,
2008,
and
it
was
open
to
Teranet
to
place
her
on
a
performance
management
plan
which
it
never
did.
In
accordance
with
management’s
practice,
there
were
other
steps
available
other
than
termination
if
the
Grievor’s
performance
required
improvement.
If
Teranet
had
placed
the
Grievor
in
a
performance
management
plan,
it
is
most
unlikely
she
would
have
been
terminated.
Teranet
should
have
acted
in
accordance
with
its
own
policies
and
the
failure
to
do
so
constituted
bad
faith.
The
Union
claims
the
Grievor’s
performance
did
not
justify
termination
and
the
evidence
relied
upon
was
a
ted
herring.The
Union
submits
that
the
meeting
of
September
15,
2008,
was
critical
to
both
the
claim
of
harassment
and
to
the
claim
for
sick
leave.
The
-
107
-
Grievor
testified
that
Ms.
Steer
was
very
aggressive
and
the
Grievor’s
response
was
consistent
with
the
Grievor’s
evidence
and
not
consistent
with
Ms.
Steer’s
evidence
claiming
she
was
calm.
The
Grievor
left
work
on
September
17,
2008
and
supplied
a
medical
note
confirming
her
absence.
She
informed
Teranet
on
September
18,
2008,
that
she
was
on
stress
leave.
There
was
no
challenge
by
Teranet
to
the
doctor’s
note
and
Teranet
initiated
surveillance.
The
Union
maintains
an
employer
acting
in
good
faith
would
have
sought
further
medical
information
and
all
of
these
facts
support
a
bad
faith
motivation
by
Teranet.
On
September
26,
2008,
the
Grievor
was
requested
to
supply
a
further
medical
certificate
that
day,
but
because
her
doctor’s
office
was
closed,
she
obtained
a
medical
certificate
on
September
29,
2008
and
provided
that
information
to
Teranet.
However,
on
that
same
day,
Teranet
cut
off
her
disability
benefits
without
reviewing
the
medical
information
and
never
reinstated
those
benefits.
The
Union
maintains
if
Teranet
had
required
further
medical
information,
it
could
have
asked
and
if
it
had
been
acting
in
good
faith,
it
would
not
have
cut
off
her
benefits,
as
it
did.
On
October
1,
2008,
Susan
Steer
requested
a
meeting
with
the
Grievor
and
-
108-
without
a
medical
opinion
of
its
own;
Teranet
believed
the
Grievor
was
“able
to
work”.On
October
9,
2008,
Ms.
Steer
wrote
to
the
Grievor
advising
that
she
was
“capable
of
working”,
although
the
Union
asserts
she
was
medically
unable
to
work.
On
the
same
day
Teranet
terminated
the
Grievor
while
questioning
the
appropriateness
of
her
medical
documentation,
without
ever
advising
her
that
her
medical
documentation
was
not
satisfactory
or
was
inappropriate.
Again,
the
Union
asserts
the
only
available
doctor’s
opinion
was
that
of
Dr.
Black
and
Teranet
could
have
required
further
medical
examinations
pursuant
to
Article
23.03
of
the
collective
agreement
to
establish
the
Grievor’s
fitness
for
work.
The
Grievor’s
benefits
were
cut
off
and
she
was
terminated
without
any
effort
by
Teranet
to
obtain
further
medical
information.The
Union
argues
that
on
September
23,
2008,
while
off
work,
the
Grievor
did
a
computer
search
for
her
husband
which
lasted
for
approximately
twenty-one
(21)
minutes,
but
there
was
nothing
further,
of
any
note,
on
either
September
24
or
September
25,
2008.
On
September
26,
2008,
she
stopped
at
her
husband’s
office
and
walked
out
and
-
109-
conversed
with
him
for
a
total
of
nineteen
(19)
minutes
and
then
attended
at
the
printing
company
for
seven
(7)
minutes.
The
Union
argues
the
Grievor
was
running
brief
errands
for
her
husband.
The
Grievor
conducted
an
open
house
on
Saturday,
September
27,
2008,
which
the
Union
maintains
was
not
a
work
day
for
her
at
Teranet,
and
all
she
did
was
put
up
a
sign
and
sit
in
the
house
while
telling
people
about
the
property.
There
was
no
deliberate
conduct
by
the
Grievor
to
book
off
sick
and
work
elsewhere.
There
is
no
evidence
the
Grievor
was
compensated
for
the
computer
search
she
did
for
her
husband.
The
income
contained
in
her
income
tax
forms
was
the
result
of
income
splitting
by
her
husband
and
did
not
reflect
income
she
had
earned.
The
Grievor
did
not
deceive
Teranet
to
gain
a
benefit
and
her
leave
was
because
of
the
stress
she
suffered
at
Teranet;
there
is
no
medical
evidence
to
demonstrate
that
the
Grievor’s
activities
were
inconsistent
with
her
leave.
The
Grievor
was
off
sick
until
February
of
2009.
The
Union
argues
there
was
a
pattern
of
harassment
by
Susan
Steer
and
cutting
off
her
benefits
and
terminating
her
must
be
viewed
in
the
light
of
the
background
history.
The
Union
claims
Susan
Steer
was
monitoring
-110-
her
breaks
as
is
evident
when
Susan
Steer
tapped
her
watch
while
the
Grievor
was
on
her
phone
during
her
break.
Her
pre
declaration
emails
were
done
on
her
break.
When
Teranet
learned
the
Grievor
was
involved
in
real
estate,
she
signed
a
declaration
and
Teranet
took
no
further
action.
The
Grievor
feels
that
Teranet’s
actions
were
unfair.
The
Union
acknowledges
that
there
is
no
evidence
that
Susan
Steer
was
concerned
about
her
husband’s
real
estate
practice
or
as
the
Union
puts
it,
“there
is
no
smoking
gun”,
however,
the
Grievor
speculates
that
both
Teranet
and
Susan
Steer’s
conduct
show
their
motivation
and
is
indicative
of
bad
faith
and
consistent
with
the
allegations
of
harassment.
The
Grievor
also
maintains
that
when
she
was
off
for
the
day,
she
received
calls
at
home
which
is
a
further
indication
of
ill
will
by
Teranet
and
Susan
Steer.
Insofar
as
the
calls
to
her
by
Susan
Steer
on
September
10,
2008,
the
Grievor
now
acknowledges
she
did
not
advise
Teranet
there
was
a
family
emergency
and
the
Union
agrees
that
this
incident
is
difficult
to
deal
with
in
light
of
the
Grievor’s
mistake.
However,
the
Grievor
claims
Ms.
Steer
was
aggressive
when
they
met
and
the
Union
argues
the
Grievor’s
evidence
should
be
preferred.
The
Grievor
asserts
she
was
bullied
by
Susan
Steer
and
was
upset
which
is
confirmed
by
Scott
Ferguson.
She
—111—
also
states
that
Dr.
Black
put
her
on
stress
leave
and
while
any
animus
by
Susan
Steer
or
Teranet
is
speculative,
which
the
Union
“can’t
put
to
reason”,
the
evidence
is
suggestive
of
an
improper
animus
or
motivation.
The
Grievor
was
also
denied
an
opportunity
to
provide
additional
medical
information.
Cutting
the
Grievor
off
sick
leave
constituted
bad
faith
and
was
a
continuation
of
the
harassment
that
she
alleges
she
suffered.
By
way
of
remedy,
the
Union
agrees
that
the
Grievor’s
position
was
eliminated
in
March
of
2011
and
reinstatement
is
not
possible,
however,
the
Union’s
claim
is
for
loss
of
wages
and
all
benefits
to
the
date
the
Grievor’s
position
was
eliminated.
The
Union
also
claims
damages
for
mental
distress
and
punitive
damages.
As
a
result
of
cutting
off
her
sick
benefits
and
terminating
her
employment
and
the
continuing
harassment,
the
Grievor
who
was
a
mother
with
two
small
children,
suffered
mental
distress
warranting
both
aggravated
and
punitive
damages.
The
Union
argues
that
the
Grievor
attempted
to
mitigate
her
loss
and
earned
some
money,
but
that
much
of
the
income
recorded
for
tax
purposes
was
not
earned
by
her
and
was
the
result
of
income
splitting
with
her
husband.
The
income
recorded
for
income
splitting
purposes
resulted
-
112
-
from
work
performed
by
the
Grievor’s
husband
and
not
her
and
in
the
context
of
mitigation
the
income
should
be
considered
as
belonging
to
the
person
who
earned
it
and
not
the
Grievor.
The
Grievor
should
not
be
penalized
if
her
husband
split
his
income
with
her.
Initially
the
Grievor
received
Employment
Insurance
and
her
efforts
to
find
a
job
began
in
March
of
2009.
There
were
no
job
applications
between
November
of
2009
and
June
of
2010.
The
Grievor
continued
her
search
for
employment
by
downloading
potential
jobs
on
her
computer.
The
Union
submits
that
at
the
meeting
of
September
15,
2008,
Ms.
Steer
harassed
the
Grievor
and
the
harassment
continued
when
Teranet
and
Ms.
Steer
cut
off
the
Grievor’s
benefits.
The
Union
asserts
that
the
Grievor
and
unionized
employees
are
vulnerable
and
their
position
is
different
from
non-unionized
employees
who
may
be
terminated
at
any
time.
The
key
to
a
unionized
position
is
job
security
and
Teranet
acted
in
bad
faith.
The
Union
claims
Teranet
made
a
medical
determination
about
the
Grievor
withouf
medical
justification
and
its
conduct
was
in
breach
of
the
collective
agreement
which
constituted
an
independent
actionable
wrong.
The
Union
relies
on
a
number
of
authorities
which
it
says
support
a
claim
for
both
mental
distress
and
punitive
damages.
-113-
The
Union
argues
that
there
is
a
distinct
difference
between
an
individual
contract
of
employment
and
a
unionized
position
could
be
a
position
for
life
and
that
earlier
cases
require
an
independent
actionable
wrong
are
not
applicable
to
collective
agreements.
The
Union
further
maintains,
in
the
alternative,
if
the
Grievor’s
conduct
was
inappropriate,
she
should
have
received
a
short
suspension.
By
way
of
reply,
Teranet
maintains
that
the
Grievor’s
allegations
of
harassment
and
bad
faith
are
speculative
at
best
and
there
are
no
facts
to
support
her
claim.
Teranet
asserts
that
it
is
the
Grievor
who
has
harassed
Ms.
Steer.
Teranet
maintains
the
Grievor’s
substandard
performance
reflected
on
her
credibility
and
on
her
harassment
claims.
Teranet
states
that
the
Grievor’s
performance,
which
it
relied
upon,
was
based
on
the
totality
of
her
work
and
compliance
with
Teranet’s
policies
including
the
Code
of
Conduct,
as
well
as
her
insubordination
and
walking
off
the
job.
Also,
Teranet
submits
the
Grievor
received
disability
benefits
while
working
for
another
organization.
She
was
not
merely
running
errands
for
her
husband;
the
marketing
material
demonstrates
that
the
Grievor
was
involved
with
her
husband
in
the
real
estate
business.
The
Grievor
-114-
conceded
in
cross-examination
that
it
was
reasonable
for
Elgin
Farewell
to
conclude
that
she
was
working
for
another
organization
and
it
was
also
reasonable
for
him
to
conclude
that
she
and
her
husband
were
in
business
together.
Teranet
argues
that
the
Grievor’s
performance
involved
the
totality
of
her
conduct
and
should
not
be
construed
narrowly
as
only
reflecting
a
lower
score
on
the
quality
of
her
work.
Her
performance
included
her
allegations
of
harassment
and
the
medical
information
she
provided
while
working
elsewhere.
Further,
the
Grievor
walked
off
the
job
as
a
result
of
an
unprovoked
incident
with
Ms.
Steer
after
making
serious
allegations
about
Ms.
Steer.
Mr.
Farewell’s
decision
included
her
having
been
placed
on
a
performance
plan,
her
engaging
in
conduct
which
demonstrated
a
conflict
of
interest,
her
attendance
records
and
her
email
records.
After
reviewing
the
totality
of
the
Grievor’s
conduct,
Teranet’s
decision
to
terminate
the
Grievor
was
not
in
bad
faith.
Teranet
submits
that
when
Susan
Steer
phoned
the
Grievor
on
September
10,
2008,
she
did
not
know
why
the
Grievor
was
absent
and
when
she
me
with
the
Grievor
on
September
15,
2008,
the
Grievor’s
conduct
towards
Ms.
Steer
was
unacceptable.
When
the
contents
of
the
meeting
were
explained
to
Miles
Argue,
her
Union
representative,
he
-115-
backed
off
and
Mr.
Argue
did
not
testify
or
contradict
Susan
Steer’s
evidence.
The
totality
of
the
Grievor’s
conduct
caused
Mr.
Farewell
to
place
the
Grievor
under
surveillance
because
he
doubted
the
basis
for
her
being
on
medical
leave
and
thought
she
might
be
working
for
another
organization.Teranet
received
medical
notes
from
Dr.
Black
on
September
17,
September
25
and
September
29,
2008.
Teranet
also
received
a
letter
of
complaint
from
the
Grievor
on
September
26,
2008,
which
Mr.
Farewell
did
not
feel
was
objectively
reliable.
He
reviewed
the
complaint
with
Susan
Steer
and
felt
she
had
acted
appropriately.
Dr.
Black’s
statement
of
September
29,
2008,
indicated
the
Grievor
should
rest
for
two
weeks,
however,
the
surveillance
evidence
demonstrated
that
the
Grievor
was
working
in
real
estate.
Teranet
asked
the
Grievor
to
come
in
and
meet
which
she
refused
to
do.
The
Doctor’s
notes
did
not
state
the
Grievor
could
work
elsewhere.
Ms.
Steer’s
email
of
October
7,
2008,
stated
that
Teranet
believed
the
Grievor
could
work
and
also
stated
the
meeting
would
provide
the
Grievor
an
opportunity
“to
explain
why
it
is
you
are
not
at
work
in
light
of
why
we
think
you
are
able
to
be
here”.
The
Grievor
refused
to
attend
the
meeting
based
on
her
doctor’s
advice.
When
cross-examined,
the
Grievor
-
116-
stated
that
her
doctor
did
not
want
her
to
attend
a
meeting.
The
Grievor
confirmed
under
cross-examination
that
her
doctor
did
not
want
her
to
go
to
the
meeting,
however,
there
is
no
evidence
by
Dr.
Black
that
he
advised
the
Grievor
or
prescribed
that
she
should
not
go
to
a
meeting.
It
was
not
the
doctor’s
decision
that
the
Grievor
not
attend;
it
was
the
Grievor’s
decision
alone,
because
she
knew
that
she
was
working
for
another
organization
and
not
entitled
to
disability
benefits.
Teranet
maintains
that
in
all
these
circumstances
it
was
reasonable
to
suspend
the
Grievor’s
benefits
and
not
to
reinstate
them.
Teranet
maintains
it
was
reasonable
not
to
request
a
further
medical
opinion
because
the
Grievor’s
doctor
had
written
that
she
could
not
work
and
the
surveillance
demonstrated
she
was
working.
None
of
the
doctor’s
notes
indicated
she
could
work
in
her
husband’s
business
or
do
other
work,
but
not
work
at
Teranet.
The
Grievor
conceded
in
cross-examination
that
anyone
observing
her
situation
could
conclude
she
was
working.
Also,
it
is
a
conflict
for
a
person
on
medical
leave
to
work
for
another
organization
while
receiving
disability
benefits
which
the
Grievor
did
and,
in
all
these
circumstances,
Teranet
cannot
be
accused
of
acting
in
bad
faith.
-
117-
Teranet
also
argues
that
Dr.
Black
was
an
advocate
for
the
Grievor,
went
beyond
his
position
as
the
Grievor’s
doctor
and
lacked
credibility.
Dr.
Black
wrote
a
number
of
letters
concerning
the
Grievor’s
circumstances
which
he
altered
based
on
the
Grievor’s
instructions.
On
November
19,
2008,
Dr.
Black
wrote
that
the
Grievor
“was
advised
to
take
a
leave
from
the
stressful
environment
at
Teranet.
Dorota
did
not
have
to
stop
doing
real
estate
work”.
At
the
request
of
the
Grievor,
Dr.
Black
wrote
another
letter
on
November
25,
2008,
that
the
Grievor
“...
was
advised
to
take
a
medical
leave
from
the
stressful
environment
at
Teranet,
under
the
management
of
Susan
Steer.
Dorota
did
not
have
to
stop
doing
real
estate
work”.
On
December
1,
2008,
he
wrote
a
letter
similar
to
the
one
on
November
25,
2008,
but
changed
it
adding
that
the
Grievor
could
also
perform
“mortgage
broker
activities”
in
addition
to
her
work
as
a
“real
estate
broker”.
The
letter
of
December
21,
2008,
was
the
only
letter
forwarded
to
Teranet.However,
Teranet
argues
that
subsequently
on
September
21,
2010,
notwithstanding
that
Dr.
Black
had
earlier
noted
that
the
Grievor
could
work
as
a
real
estate
broker
and
mortgage
broker,
he
wrote
that
“it
was
not
until
the
end
of
February
2009,
that
I
consented
to
her
being
able
to
seek
-118-
alternative
work
to
that
of
Teranet”.
Teranet
states
the
Grievor’s
Employment
Insurance
benefits
had
run
out
at
the
end
of
February
2009,
and
Dr.
Black’s
letter
was
adjusted
to
coincide
with
the
termination
of
those
benefits.
The
letter
also
described
the
activities
that
the
Grievor
could
pursue
which
are
consistent
with
her
testimony
that
she
performed
errands
for
her
husband
but
did
not
work
when
she
was
under
surveillance.
Also,
Teranet
argues
Dr.
Black’s
medical
notes
are
not
consistent
with
his
letters.
Based
on
the
changing
letters,
Teranet
argues
that
Dr.
Black
crossed
the
line
from
medical
doctor
to
being
an
advocate
for
the
Grievor
and
accordingly,
he
was
not
a
credible
medical
witness.
He
readily
changed
his
opinion
at
the
Grievor’s
request
in
order
to
assist
the
Grievor’s
claim
for
medical
benefits.
Teranet
submits
that
if
the
Grievor
was
on
medical
leave
and
receiving
medical
benefits,
she
could
not
work
elsewhere
as
a
real
estate
or
mortgage
broker
and
Dr.
Black’s
letters
indicate
she
could
work
elsewhere
and
she
did
work.
Teranet
also
claims
that
Susan
Steer
was
a
credible
witness
and
the
Grievor
was
not.
At
the
meeting
on
December
7,
2007,
the
Grievor
had
been
using
Teranet’s
resources
for
her
real
estate
business
and
was
not
-119-
candid
when
she
did
not
admit
what
she
had
done.
She
did
not
state
she
had
a
conflict
and
it
is
splitting
hairs
to
say
she
was
only
asked
if
she
used
the
telephone.
Susan
Steer
acknowledged
that
the
Grievor
had
truthfully
answered
her
questions
at
the
meeting
and
did
not
portray
the
Grievor
in
a
negative
way.
This
should
be
compared
to
the
Grievor
who
portrayed
Susan
Steer
as
terminating
her
employment
to
advantage
Susan
Steer’s
husband.
Further,
the
Grievor
claimed
that
on
September
10,
2008,
she
informed
Cheryl
Bryant
in
her
voice
mail
that
there
was
a
family
emergency
which
was
untrue.
Also,
the
Grievor’s
refusal
to
meet
with
Teranet
on
September
30
and
October
2,
2008,
because
her
doctor
had
advised
her
not
to
was
an
untrue
statement.
Teranet
maintains
the
Grievor
has
gone
to
great
lengths
to
describe
the
real
estate
business
that
she
carried
on
with
her
husband
as
being
only
her
husband’s
which
was
untrue.
Further,
the
Grievor’s
failure
to
comply
with
the
production
orders
made
during
the
initial
stages
of
these
proceedings
is
an
indication
of
her
lack
of
truthfulness.
Teranet
further
argues
that
the
Grievor’s
claim
to
the
income
she
received
as
not
being
earned
by
her,
but
as
part
of
an
arrangement
under
the
Income
Tax
Act,
which
allowed
her
husband
to
split
his
income
with
her
is
not
a
valid
claim.
Teranet
submits
the
Grievor
was
an
active
participant
-
120
-
in
the
real
estate
business
and
based
on
Dr.
Black’s
letters,
the
Grievor
has,
at
least,
been
able
to
work
since
February
of
2009.
Counsel
for
Teranet
also
reviewed
the
case
law
concerning
aggravated
and
punitive
damages
and
argued
that
aggravated
damages
are
only
awarded
for
mental
distress
that
goes
beyond
hurt
feelings
resulting
from
termination
and
there
was
not
a
factual
underpinning
for
the
Grievor’s
claim
that
she
suffered
mental
distress
beyond
hurt
feelings.
Nor
was
there
bad
faith
in
the
manner
of
dismissal,
nor
were
damages
for
mental
distress
within
the
contemplation
of
the
parties
at
the
time
they
entered
into
the
collective
agreement,
nor
is
there
evidence
that
the
Grievor
was
particularly
vulnerable.
Also,
the
collective
bargaining
regime
differs
from
the
ordinary
contract
of
employment
because
it
permits
reinstatement
with
compensation
if
there
is
not
just
cause
for
the
dismissal.
To
sustain
a
finding
of
aggravated
or
punitive
damages
there
must
be
outrageous
behavior
by
the
employer
and
the
manner
of
dismissal
must
also
be
reprehensible.
-
121
-
Legal
Analysis
The
broad
remedial
authority
of
an
arbitrator
is
set
out
in
Nor
Man
Regional
Health
Authority
Inc.
v.
Manitoba
Association
of
Health
Care
Professionals
3
S.C.R.
616.
In
that
case,
the
Court
stated
that
arbitrators
are
not
legally
bound
to
apply
equitable
and
common
law
principles
in
the
same
manner
as
courts
of
law.
However,
the
Court
also
stated
that
the
arbitral
discretion
is
“by
no
means
boundless”
and
that
an
arbitral
award
that
flexes
a
common
law
or
equitable
principle
in
a
manner
that
does
not
reasonably
respond
to
the
distinctive
nature
of
labour
relations
is
subject
to
judicial
review
for
its
reasonableness.
Given
that
arbitral
discretion
is
not
boundless,
I
propose
out
of
caution
to
review
the
common
law
of
damages
for
breach
of
contract
for
both
mental
distress
and
also
punitive
damages
and
to
consider
its
application
to
collective
agreements
and
the
remedial
authority
of
an
arbitrator.
The
first
issue
to
be
determined
is
whether
there
is
a
requirement
for
an
independent
actionable
wrong,
under
a
colleétive
agreement,
in
order
to
sustain
a
recovery
for
damages
for
mental
distress
and
punitive
damages.
For
the
reasons
set
out
below,
I
find
that
in
discharge
and
discipline
cases
when
awarding
damages
for
mental
distress
and
punitive
damages,
a
-
122
-
finding
that
an
independent
actionable
wrong
for
a
number
of
reasons
is
not
required.
To
the
extent
that
requirement
is
derived
from
employment
law
it
is
not
applicable
to
conduct
under
a
collective
agreement.
Moreover,
given
the
recent
decisions
of
the
Supreme
Court
of
Canada,
it
is
my
view,
that
(i)
collective
agreements
contemplate
that
such
damages
may
be
awarded
where
there
is
a
breach
of
the
collective
agreement
and
(ii)
that
an
arbitrator
has
a
broad
mandate
under
the
collective
agreement
alone
to
develop
doctrines
and
fashion
remedies
appropriate
to
the
principles
of
labour
relations
and
the
nature
of
the
collective
bargaining
process
which
includes
awarding
damages
for
mental
distress
and
punitive
damages.
The
distinction
between
individual
contracts
of
employment
and
collective
agreements
was
clearly
stated
in
the
decision
of
the
Supreme
Court
of
Canada
in
McGavin
Toastmaster
Ltd.
v.
Ainscough
[1976],
S.C.R.
718
by
Chief
Justice
Laskin
speaking
for
the
majority
where
he
stated
as
follows
at
p.
724
I
725:
“I
am
of
the
same
opinion
as
the
majority
of
the
British
Columbia
Court
of
Appeal,
affirming
the
decision
of
the
trial
judge,
that
the
plaintiffs
should
succeed,
but
I
come
to
this
conclusion
on
different
grounds.
I
do
not
think
that
in
the
face
of
labour
relations
legislation
it
is
possible
to
speak
of
individual
contracts
of
employment
and
to
treat
-123-
the
collective
agreement
as
a
mere
appendage
of
individual
relationships.
The
reality
is,
and
has
been
for
many
years
now
throughout
Canada,
that
individual
relationships
as
between
employer
and
employee
have
meaning
only
at
the
hiring
stage
and
even
then
there
are
qualifications
which
arise
by
reason
of
union
security
clauses
in
collective
agreements.
The
common
law
as
it
applies
to
individual
employment
contracts
is
no
longer
relevant
to
employer-employee
relations
governed
by
a
collective
agreement
which,
as
the
one
involved
here,
deals
with
discharge,
termination
of
employment,
severance
pay
and
a
host
of
other
matters
that
have
been
negotiated
between
union
and
company
as
the
principal
parties
thereto.”[emphasis
added]
In
that
case,
the
Court
rejected
the
common
law
concepts
of
repudiation
and
fundamental
breach
as
not
being
applicable
to
the
collective
agreement
because
of
the
legislation
then
in
effect.
The
dissenting
judgment
in
McGavin,
stated
that
the
contracts
of
employment
of
each
of
the
respondent
employees
“derived
from
two
sources
a)
the
collective
agreement
b)
the
general
law
in
all
matters
not
covered
by
the
agreement”,
and
found
that
under
the
general
law
that
the
employees
were
in
breach
of
the
most
fundamental
obligation
of
their
contracts
which
justified
the
employer
considering
that
the
employees
had
-
124
-
“definitely
broken
their
contracts
of
employment”,
and
that
the
employer
was
no
longer
bound
by
any
of
the
terms
of
those
contracts
including
the
benefits
stipulated
under
the
collective
agreement.
The
McGavin
case
draws
a
clear
distinction
between
collective
agreements
and
individual
contracts
of
employment
and
definitively
states
that
the
common
law
as
it
applies
to
individual
employment
contracts
is
not
relevant
to
employer-employee
relations
governed
by
a
collective
agreement.
Moreover,
by
specifically
finding
that
the
common
law
concepts
such
as
repudiation
and
fundamental
breach
were
inapplicable
to
collective
agreements
and
could
not
be
invoked
in
relation
to
collective
agreements
and
rejecting
the
dissenting
views
as
to
the
application
of
the
general
law,
McGavin,
in
my
respeciful
opinion,
requires
careful
consideration
before
imposing
the
common
law
on
issues
raised
under
collective
agreements
and
not
a
reflexive
superimposition
of
common
law
concepts
derived
from
individual
employment
contracts
on
issues
related
to
or
relevant
to
collective
agreements.
It
is
with
this
in
mind
hat
I
now
turn
to
consider
the
issue
of
independent
actionable
wrongs
and
whether
that
common
law
concept
derived
specifically
from
individual
employment
contracts
should
be
applied
to
situations
arising
expressly
or
impliedly
-
125-
under
a
collective
agreement
when
considering
whether
mental
distress
or
punitive
damages
should
be
awarded.
The
source
for
the
requirement
of
an
independent
actionable
wrong
is
the
well
know
and
often
criticized
case
of
Addis
v.
Gramaphone
Company
Limited
[1908-10]
ALL
E.R.1,
decided
in
the
British
House
of
Lords
long
before
collective
bargaining
became
a
part
of
employment
life
in
Canada.
Addis
was
a
case
of
individual
employment
in
which
the
plaintiff,
who
was
a
manger
of
a
business
in
Calcutta,
was
dismissed
with
six
months’
notice
to
which
he
was
entitled.
A
jury
found
for
the
plaintiff
awarding
him
6OO
in
respect
of
his
wrongful
dismissal
and
34O
for
excess
commission.
In
the
House
of
Lords
there
was
a
reference
by
Lord
Loreburn
L.C.
to
the
“abrupt
and
oppressive
way
in
which
the
plaintiff’s
services
were
discontinued
and
the
loss
he
sustained
from
the
discredit
that
is
thrown
upon
him”,
while
Lord
Atkinson
referred
to
“the
harsh
and
humiliating
way
in
which
he
was
dismissed,
including,
presumably,
the
pain
he
experienced
by
reason,
it
is
alleged,
of
the
imputati9n
upon
him
conveyed
by
the
manner
of
his
dismissal”.
Lord
Collins,
in
his
dissent,
referred
to
the
“harshness
and
oppression
accompanying
the
dismissal”.
-
126
-
Similar
comments
were
made
by
the
other
Law
Lords.
Notwithstanding
those
remarks,
the
jury’s
award
of
600f
was
disallowed.
In
this
context,
it
is
important
to
determine
the
issue
confronting
the
House
of
Lords.
Lord
Loreburn
defined
the
issue
in
this
way
at
p.3,
ALL
ER,
“I
cannot
agree
that
the
manner
of
dismissal
affects
these
damages.
Such
considerations
have
never
been
allowed
to
influence
damages
in
this
kind
of
case”.
Lord
Gorrel
stated
at
p.
9
ALL
ER,
“...
I
am
unable
to
find
either
authority
or
principle
for
the
contention
that
he
is
entitled
to
have
damages
for
the
manner
in
which
his
discharge
took
place”.
Having
regard
to
the
various
statements,
it
is
my
view,
that
Addis
decided
that
a
plaintiff
in
an
action
for
breach
of
his/her
employment
contract
is
not
entitled
to
recover
exemplary
damages
for
the
manner
in
which
his/her
discharge
took
place,
notwithstanding
that
the
manner
of
dismissal
was
“harsh”,
“humiliating”,
or
“sharp
and
oppressive”.
To
a
great
extent
the
decision
in
Addis
has
been
repudiated
both
in
the
U.K.
and
in
Canada.
-
127-
The
decision
in
the
Addis
case
was
considered
by
the
House
of
Lords
in
1997.
Malik
v.
Bank
of
Credit;
Mahmud
v.
Bank
of
Credit
[1998]
A.C.
20;
[1997]
3
All
ER
1.
Malik
is
a
case
that
dealt
with
an
employment
contract,
albeit,
after
Malik
and
others
had
left
the
bank’s
employment.
Mr.
Malik
and
Mr.
Mahmud
were
summarily
dismissed
on
grounds
of
redundancy.
Later
it
became
public
knowledge
that
the
bank
had
been
operating
in
a
dishonest
manner.
The
two
employees
alleged
there
was
a
breach
of
an
implied
obligation
of
mutual
trust
and
confidence
and
claimed
that
despite
their
personal
innocence
they
were
unable
to
obtain
employment
in
the
financial
services
industry.
They
described
their
claims
as
being
for
stigma
compensation.
The
issue
eventually
came
to
the
House
of
Lords
which
discussed
their
claims
and
in
so
doing,
made
particular
reference
to
Addis
and
also
to
the
nature
of
the
employment
relationship,
which
I
find
instructive
when
considering
employment
relationships
under
collective
agreements.
The
Malik
case
did
not
deal
with
injured
feelings
and
anxiety
but
only
with
financial
loss.
Malik
determined
that
there
was
an
implied
term
of
mutual
trust
and
confidence
in
every
contract
of
employment
which
allowed
for
damages
for
breach
of
contract.
Lord
Nicholls
of
Birkenhead
-
128-
after
referring
to
the
observations
of
the
various
Lords
in
Addis
put
it
this
way
at
p.
9,
ALL
ER,
“In
my
view
these
observations
cannot
be
read
as
precluding
the
recovery
of
damages
where
the
manner
of
dismissal
involved
a
breach
of
the
trust
and
confidence
term
and
this
caused
financial
loss.
Addis
v.
Gramophone
Co.
Ltd.
was
decided
in
days
before
this
implied
term
was
adumbrated.
Now
this
term
exists
and
is
normally
implied
in
every
contract
of
employment,
damages
for
its
breach
should
be
assessed
in
accordance
with
ordinary
contractual
principles.”
“This
is
as
much
true
if
the
breach
occurs
before
or
in
connection
with
dismissal
as
at
any
other
time.”
But
the
manner
and
circumstances
of
the
dismissal,
as
measured
by
the
standards
of
conduct
now
identified
in
the
implied
trust
and
confidence
term,
may
give
rise
to
such
a
handicap.
The
law
would
be
blemished
if
this
were
not
recognized
today.
There
now
exists
the
separate
cause
of
action
whose
absence
Lord
Shaw
of
Dunfernline
noted
with
“a
certain
regret”:
see
Addis
v.
Gramphoe
Co.
Ltd.
[1909]
A.C.
488,
504.
The
trust
and
confidence
term
has
removed
the
cause
for
his
regret.”[emphasis
added]
Lord
Nicholls
of
Birkenhead
also
stated
at
p.
II,
ALL
ER
“Unlike
the
courts
below,
this
House
is
not
bound
by
the
observations
in
Addis
v.
Gramophone
Co.
Ltd.
[1909]
A.C.
488
regarding
unrecoverability
of
loss
flowing
from
the
manner
of
dismissal
...“.
-
129-
Lord
Steyn
in
a
separate
judgment
stated
at
p.
19,
ALL
ER
“The
true
ratio
decidendi
of
the
House
of
Lords’
decision
in
Addis
v.
Gramophone
Co.
Ltd.
has
long
been
debated.
Some
have
understood
it
as
authority
for
the
proposition
that
an
employee
may
not
recover
damages
even
for
pecuniary
loss
caused
by
a
breach
of
contract
of
the
employer
which
damages
the
employment
prospects
of
an
employee.
If
Addis
establishes
such
a
rule
it
is
an
inroad
on
traditional
principles
of
contract
law.
And
any
such
restrictive
rule
has
been
criticized
by
distinguished
writers:
Treitel,
The
Law
of
Contract,
gth
ed.
(1995)
893;
Burrows,
Remedies
for
Torts
and
Breach
of
Contract,
2
ed.
22
1-225.
Moreover,
it
has
been
pointed
out
that
Addis
was
decided
in
1909
before
the
development
of
modern
employment
law,
and
long
before
the
evolution
of
the
implied
mutual
obligation
of
trust
and
confidence.”
(emphasis
added]
Lord
Steyn
concluded
his
observations
of
Addis
at
p.
20,
ALL
ER
“It
is,
however,
far
from
clear
how
far
the
ratio
of
Addis
extends.
It
certainly
enunciated
the
principle
that
an
employee
cannot
recover
exemplary
or
aggravated
damages
for
wrongful
dismissal.
That
is
still
sound
law.
The
actual
decision
is
only
concerned
with
wrongful
dismissal.
It
is
therefore
arguable
that
as
a
matter
of
precedent
the
ratio
is
so
restricted.
But
it
seems
to
me
unrealistic
not
to
acknowledge
that
Addis
is
authority
for
a
wider
principle.
There
is
a
common
proposition
in
the
speeches
of
the
majority.
That
proposition
is
that
damages
for
breach
of
contract
may
only
be
awarded
for
breach
of
contract,
and
not
for
loss
caused
by
the
manner
of
the
breach.
No
Law
Lord
-
130
-
said
that
an
employee
may
not
recover
financial
loss
for
damages
to
his
employment
prospects
caused
by
a
breach
of
contract.
And
no
Law
Lord
said
that
in
breach
of
contract
cases
compensation
for
loss
of
reputation
can
never
be
awarded,
or
that
it
can
only
be
awarded
in
cases
falling
in
certain
defined
categories.
Addis
simply
decided
that
the
loss
of
reputation
in
that
particular
case
could
not
be
compensated
because
it
was
not
caused
by
a
breach
of
contract:
Nelson
Enonchong,
“Contract
Damages
for
Injury
to
Reputation”
(1996),
59
M.L.R.
592,
p.
596.
So
analyzed
Addis
does
not
bar
the
claims
put
forward
in
the
present
case.”
Lord
Steyn
further
discussed
the
evolution
of
the
implied
term
of
trust
and
confidence,
which,
in
my
view,
has
relevance
to
employment
relationships
under
collective
agreements,
as
follows
at
p.
15,
ALL
ER
“The
evolution
of
the
term
is
a
comparatively
recent
development.
The
obligation
probably
has
its
origin
in
the
general
duty
of
co-operation
between
contracting
parties:
B.A.
Hepple,
Employment
Law,
4th
ed.
(1981),
paras.
291-292,
pp.
134-135.
The
reason
for
this
development
is
part
of
the
history
of
the
development
of
employment
law
in
this
century.
The
notion
of
a
“master
and
servant”
relationship
became
obsolete.
Lord
Slynn
of
Hadley
recently
noted
“changes
which
have
taken
place
in
the
employment
and
employee
relationship,
with
far
greater
duties
imposed
on
the
employer
in
the
past,
whether
by
statute
or
judicial
decision,
to
care
for
the
physical,
financial
and
even
psychological
welfare
of
the
employee”.
Spring
v.
Guardian
Assurance
Plc.
[1994]
3
ALL
ER
129
at
161
[1995]
2
A.C.
296,
at
335B.”[emphasis
added]
-131
-
It
is
now
apparent
that
in
British
law
the
principle
enunciated
in
Addis
is
now
restricted
by
Mailk
to
those
employment
cases
where
the
loss
was
not
caused
by
a
breach
of
contract,
and
since
a
trust
and
confidence
term
is
normally
implied
in
every
contract
of
employment
damages
for
its
breach
should
be
assessed
in
accordance
with
ordinary
contract
principles,
even
if
“the
breach
occurs
in
connection
with
the
dismissal”.
Lord
Denning’s
decision
in
Jarvis
v.
Swans
Tours
Ltd.
[1973],
All
ER
71
(CA),
if
read
alongside
Malik
also
suggests
that
damages
for
mental
distress
may
be
awarded
where
there
is
a
breach
of
contract.
In
the
Court
of
Appeal,
Lord
Denning
made
the
following
comments
at
p.
74,
“What
is
the
right
way
of
assessing
damages?
It
has
often
been
said
that
on
a
breach
of
contract
damages
cannot
be
given
for
mental
distress.
In
a
proper
case
damages
for
mental
distress
can
be
recovered
in
contract,
just
as
damages
for
shock
can
be
recovered
in
tort.
One
such
case
is
a
contract
for
a
holiday,
or
any
other
contract
to
provide
entertainment
and
enjoyment.
If
the
contacting
party
breaks
his
contract,
damages
can
be
given
for
the
disappointment,
the
distress,
the
upset
and
frustration
caused
by
the
breach.
I
know
that
it
is
difficult
to
assess
in
terms
of
money,
but
it
is
no
more
difficult
than
the
assessment
which
the
courts
have
to
make
every
day
in
personal
injury
cases
for
loss
of
amenities.
(emphasis
added)
-
132
-
It
has
been
suggested
that
this
case
is
limited
to
holiday
or
vacation
cases,
but
that
is
not
what
Lord
Denning
said.
He
explicitly
stated
that
“in
a
proper
case
damages
for
mental
distress
can
be
recovered
in
contract”,
and
then
referred
to
a
contract
for
a
holiday
as
“one
such
case”.
Lord
Denning
also
explicitly
found
that
damages
for
breach
of
contract
can
be
given
for
“the
disappointment,
the
distress,
the
upset
and
the
frustration
caused
by
the
breach”.
In
the
result
the
Court
awarded
the
plaintiff
a
sum
for
general
damages.
I
note
that
Lord
Denning
made
no
mention
of
Addis
in
his
decision.It
is
now
apparent
in
the
U.K.
that
the
decision
in
Addis
is
now
limited
to
cases
where
there
is
not
a
breach
of
contract.
The
combination
of
Malik,
which
implies
a
trust
and
confidence
term
and
Swans
Tours,
permits
a
claim
for
mental
distress
damages
where
there
is
a
breach
of
a
term
of
the
contract.
The
decisions
in
Canada
have,
in
my
view,
evolved
to
the
point
where
the
terms
of
the
contract
and/or
the
terms
of
the
collective
agreement
must
be
properly
considered
when
awarding
damages
for
mental
distress
or
punitive
damages
and
I
now
turn
to
the
Canadian
cases.
-
133-
Leaal
Analysis:
Canadian
Case
Law
Before
reviewing
the
Canadian
case
law,
I
note
that
the
Supreme
Court
of
Canada
has
not
as
yet
dealt
with
the
issue
as
to
whether
damages
for
mental
distress
may
be
awarded
where
there
is
a
breach
of
a
collective
agreement
term.
That
Court
has
determined
that
damages
may
be
awarded
for
financial
loss
for
breach
of
a
provision
of
a
collective
agreement.
Imbleau
eta!
Laskin
etal
[1962]
S.C.R.
338.
All
of
the
cases
in
the
Supreme
Court
of
Canada
that
touch
on
the
matter
are
either
insurance
cases
or
employment
cases
and
those
cases
must
be
considered
bearing
in
mind
the
decision
of
the
Supreme
Court
of
Canada
in
the
McGavin
Toastmaster
Ltd.
case,
which
decided
that
the
common
law
as
it
applies
to
individual
contracts
of
employment
is
no
longer
relevant
to
employer-employee
relations
governed
by
a
collective
agreement.
The
first
case
of
note
is
Vorvis
v.
Insurance
Corporation
of
British
Columbia
[1989]
1
S.C.R.
1085;
(1989)
58
D.L.R.
(4th)
193
in
which
the
Supreme
Court
dealt
with
the
amount
and
nature
of
damages
in
an
action
for
wrongful
dismissal.
That
case
was
decided
prior
to
the
House
of
Lords
judgment
in
the
Malik
case.
In
Vorvis
the
majority
judgment
was
delivered
-
134
-
by
Mcintyre
J.
who
considered
the
claims
by
the
plaintiff
for
aggravated
and
punitive
damages.
He
determined
that
the
case
was
not
one
in
which
aggravated
damages
should
be
awarded.
His
comments
in
that
regard
are
of
special
interest
since
he
relied
on
the
Addis
case
(which
is
now
limited,
as
I
have
noted)
and
Peso
Silver
Mines
Ltd.
(N.PL.)
v.
Cropper
(1966)
58
D.L.R.
(2d)
1,
[1966]
S.C.R.
673,
but
appears
to
have
specifically
eliminated
collective
agreements
from
his
determination.
His
conclusions
are
as
follows
at
p.
204,
D.L.R.,
“...
I
would
conclude
that
while
aggravated
damages
may
be
awarded
in
actions
for
breach
of
contract
in
appropriate
cases,
this
is
not
a
case
where
they
should
be
given.
The
role
long
established
in
the
Addis
and
Peso
Silver
Mines
cases
has
generally
been
applied
to
deny
such
damages
and
the
employer/employee
relationship
(in
the
absence
of
collective
agreements
which
involve
consideration
of
the
modern
labour
law
regime)
has
always
been
one
where
either
party
could
terminate
the
contract
of
employment
by
due
notice,
and
therefore
the
only
damage
which
could
oust
would
result
from
a
failure
to
give
such
notice.
[emphasis
added]
In
my
view,
Mcintyre
J.,
in
his
bracketed
reference,
pointedly
excluded
collective
agreements
from
his
determination
denying
aggravated
damages
in
the
employer/employee
relationship
which
requires
an
independent
actionable
wrong.
Mcintyre
J.
would
have
been
aware
of
the
earlier
-
135-
decision
in
the
McGavin
Toastmaster
case
which
separated
considerations
in
common
law
employment
contracts
from
collective
agreement
considerations.
Moreover,
Mcintyre
J.
was
relying
on
the
Addis
case
which
was
decided
in
1909
as
the
seminal
case
considering
damages
for
wrongful
dismissal
and
therefore
his
reference
to
the
“modern
labour
law
regime”
suggests
that
different
considerations
might
apply
to
collective
agreements
which
came
into
being
long
after
Addis,
and
would
not
have
been
contemplated
by
Addis.
Mcintyre
J.’s
comments
are
similar
to
the
comments
in
Malik
where
Lord
Steyn
stated
that
Addis
was
decided
before
the
development
of
modern
employment
law.
Mcintyre
J.
also
noted
that
aggravated
damages,
which
include
damages
for
mental
distress,
may
be
awarded
in
actions
for
breach
of
contract
in
appropriate
cases.Mcintyre
J.
also
dealt
with
punitive
damages.
He
stated
at
p.
207,
D.L.R.
that,
“punitive
damages
may
be
awarded
in
cases
of
breach
of
contract.
It
would
seem
to
me,
however,
that
it
will
be
rare
to
find
a
contractual
breach
which
would
be
appropriate
for
such
an
award”.
He
then
went
on
to
describe
the
kind
of
conduct
that
would
characterize
a
punitive
award
and
determined
that
the
defendant’s
conduct
standing
alone
-
136
-
was
not
sufficiently
offensive
to
constitute
an
actionable
wrong,
suggesting
that
conduct
deserving
of
an
award
for
punitive
damages
must
constitute
an
actionable
wrong.
I
note
also
the
comprehensive
dissent
by
Wilson
J.,
in
which
she
disagreed
with
Mcintyre
J’s
disposition
of
the
claim
for
punitive
damages,
and
with
his
approach
to
the
law
of
mental
suffering
as
a
recoverable
head
of
damages
in
breach
of
contract
cases.
I
refer
to
Wilson
J’s
dissent
because
her
approach
appears
to
have
been
adopted
in
later
cases
of
the
Supreme
Court
of
Canada.
Also,
bearing
in
mind
the
distinction
made
in
McGavin
Toastmaster
case
between
employment
contracts
and
collective
agreements
it
is
my
view
that
Wilson
J.’s
comments
about
employment
generally,
while
in
dissent,
are
relevant
to
issues
which
arise
under
collective
agreements.Wilson
J.
agreed
that
in
appropriate
cases
aggravated
damages
for
mental
suffering
may
be
awarded
in
breach
of
contract
cases,
but
took
a
different
approach
as
to
the
test
to
be
applied
in
determining
whether
to
award
them.
Relying
on
Jarvis
v.
Swans
Tours,
she
stated
damages
could
be
awarded
where
the
parties
could
reasonably
have
foreseen
-137-
mental
suffering
as
a
consequence
of
a
breach
of
the
contract
at
the
time
the
contract
was
entered
into,
and
she
made
specific
reference
to
awarding
damages
for
mental
distress
in
employment
contracts
as
follows
at
p.
214,
D.L.R.
“Professor
Fridman
notes
that
the
most
important
type
of
contract,
in
which
damages
for
mental
distress
have
been
awarded,
is
the
employment
contract.
He
suggests
that
this
is
because
of
the
nature
of
the
relationship
which
it
creates
which
is
one
of
trust
and
confidence.
I
would
add
that
it
may
also
be
because
of
the
vulnerability
of
the
employee
to
the
superior
authority
of
the
employer.”
Wilson
J.,
then
referred
to
a
number
of
employment
cases
where
damages
for
mental
distress
caused
by
breach
of
an
employment
contract
had
been
awarded.Wilson
J.
disagreed
with
the
majority’s
view
concerning
the
requirement
for
a
separate
actionable
wrong.
She
stated
at
p.
215,
DLR:
:“l
must
respectfully
disagree
with
my
colleague’s
view
that
conduct
advanced
in
support
of
a
claim
for
damages
for
mental
suffering
must
constitute
a
separate
“actionable
wrong”
from
the
breach
itself’
Rather
than
relying
on
a
characterization
of
the
conduct
as
an
independent
wrong.
I
think
the
proper
approach
is
to
apply
the
basic
principles
of
contract
law
relating
to
remoteness
of
damage.
These
were
articulated
by
Baron
Alderson
...
in
Hadley
v.
Baxendale
(1854)
9
Ex.
341
at
pp.
354-
5,
156
E.R.
145
at
p.
151.”
-
138-
Wilson
J.
concluded
that
the
established
principles
of
contract
law
set
out
in
Hadley
v.
Baxendale
provide
the
proper
test
for
the
recovery
of
damages
for
mental
suffering.
That
view
was
subsequently
adopted
by
the
Supreme
Court.As
to
punitive
damages,
Wilson
J.
after
referring
to
and
approving
the
thoughtful
decision
of
Linden
J.,
in
Brown
v.
Waterloo
Regional
Board
of
Com’rs
of
Police
(1982),
136
D.L.R.
(3d)
49,
37
O.R.
(2d)
277,
(Ont.
H.C.)
concluded
that
a
broader
approach
to
punitive
damages
in
contract
matters
is
appropriate
and
also
approved
Linden
J.’s
approach,
at
p.
222,
D.L.R.,
“to
the
effect
that
punitive
damages
should
be
available
in
order
to
deter
the
strong
from
deliberately
and
callously
disregarding
the
legal
rights
of
the
weak
whenever
it
is
in
their
economic
interests
to
do
so.”
Wilson
J.
concluded
at
p.
224,
D.L.R.,
“In
my
view
the
correct
approach
is
to
assess
the
conduct
in
the
context
of
all
the
circumstances
and
determine
whether
it
is
deserving
of
punishment
because
of
its
shockingly
harsh,
vindictive,
reprehensible
and
malicious
nature.
Undoubtedly,
some
conduct
found
to
be
deserving
of
punishment
will
constitute
an
actionable
wrong
but
other
conduct
might
not.
I
respectfully
adopt
the
following
statement
made
by
Clement
J.A.
in
Paragon
Properties
Ltd.
(1972)
24
R.L.R.
(3d)
156
at
p.
67,
[1972]
3
W.WR.
106.
-
139-
“It
is
the
reprehensible
conduct
of
the
wrongdoer
which
attracts
the
principle
not
the
legal
category
of
the
wrong
out
of
which
compensatory
damages
arise
and
in
relation
to
which
the
conduct
occurred.
To
place
arbitrary
limitations
upon
its
application
is
to
evade
the
underlying
principle
and
replace
it
with
an
uncertain
and
debatable
jurisdiction.”
Wilson
J.
concluded
by
commenting
on
employment
relationships
as
follows
at
p.
224,
D.L.R.:
“The
very
closeness
engendered
by
some
contractual
relationships,
particularly
employer/employee
relationships
in
which
there
is
frequently
a
marked
disparity
of
power
between
the
parties,
seems
to
me
to
give
added
point
to
the
duty
of
civilized
behavior.”
The
next
case
of
note
is
also
an
employment
case.
I
refer
to
Wallace
v.
United
Grain
Growers
Ltd.
(1998)
152
D.L.R.
(4t1)
I
because
of
the
observations
made
as
to
the
nature
of
the
employment
relationship,
The
Supreme
Court
of
Canada
found
that
the
Company
fired
the
plaintiff/employee
abruptly
despite
a
good
work
record,
maintained
unfounded
allegations
of
cause
that
resulted
in
word
getting
around
and
“removed
in
the
trade
that
he
had
been
involved
in
some
wrongdoing”.
The
Supreme
Court
noted
that
the
contract
of
employment
has
many
characteristics
that
set
it
apart
from
ordinary
commercial
contracts,
and
-140-
after
referring
to
various
texts,
indicated
that
there
is
a
power
imbalance
which
is,
“not
limited
to
the
employment
contract
itself
rather
it
informs
virtually
all
facets
of
the
employment
relationship”.
The
Court
stated
at
p.
32,
D.L.R.“This
unequal
balance
of
power
led
the
majority
of
the
Court
in
Slaight
Communications,
supra,
to
describe
employees
as
a
vulnerable
group
in
society:
see
p.
1051.
The
vulnerability
of
employees
is
underscored
by
the
level
of
importance
which
our
society
attaches
to
employment.
As
Dickson
C.J.
noted
in
Reference
Re
Public
Service
Employee
Relations
Act
(Alta.),
[1987]
1
S.C.R.
313,
at
p.
368,
38
D.R.R.
(4th)
161:
“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
employment
is
an
essential
component
of
his
or
her
sense
of
identity,
self-worth
and
emotional
well-being.”
[emphases
added]
Thus,
for
most
people,
work
is
one
of
the
defining
features
of
their
lives.
Accordingly,
any
change
in
a
person’s
employment
status
is
bound
to
have
far-reaching
repercussions.
In
“Aggravated
Damages
and
the
Employment
Contract”,
supra,
Schai
noted
at
p.
346
that,
“when
this
change
is
involuntary,
the
extent
of
our
‘personal
dislocation’
is
even
greater.
The
point
at
which
the
employment
relationship
ruptures
is
the
time
when
the
employee
is
most
vulnerable
and
hence,
most
in
need
of
protection.
In
recognition
of
this
need,
the
law
ought
to
encourage
conduct
that
minimizes
the
damage
and
dislocation
(both
economic
and
personal)
that
result
from
dismissal.
In
Machtinger,
supra,
it
was
noted
that
the
manner
in
which
-
141
-
employment
can
be
terminated
is
equally
important
to
an
individual’s
identity
as
the
work
itself
(at
p.
1002).
By
way
of
expanding
upon
this
statement,
I
note
that
the
loss
of
one’s
job
is
always
a
traumatic
event.
However,
when
termination
is
accompanied
by
acts
of
bad
faith
in
the
manner
of
discharge,
the
results
can
be
especially
devastating.”(emphasis
added)
The
Court
also
found
that
for
employees
to
“receive
adequate
protection
employers
ought
to
be
held
to
an
obligation
of
good
faith
and
fair
dealing
in
the
manner
of
dismissal”.
The
Court
defined
the
employer’s
obligation
as
follows
at
p.34,
D.L.R.
“The
obligation
of
good
faith
and
fair
dealing
is
incapable
of
precise
definition.
However,
at
a
minimum,
I
believe
that
in
the
course
of
dismissal
employees
ought
to
be
candid,
reasonable,
honest
and
forthright
with
their
employees
and
should
refrain
from
engaging
in
conduct
that
is
unfair
or
is
in
bad
faith
by
being,
for
example,
untruthful,
misleading
or
unduly
insensitive.”
The
Court
concluded
by
finding
that
a
breach
of
the
obligation
would
be
compensated
for
by
adding
to
the
length
of
notice.
The
ourt
further
considered
the
impact
of
losing
one’s
job
and
the
conduct
of
the
employer
as
follows
at
pps.
35,
36,
D.L.R.
“Thus,
although
the
loss
of
a
job
is
very
often
the
cause
of
injured
feelings
and
emotional
upset,
the
law
does
not
recognize
these
as
compensable
losses.
However,
where
an
employee
can
-
142
-
establish
that
an
employer
engaged
in
bad
faith
conduct
or
unfair
dealing
in
the
case
of
dismissal,
injuries
such
as
humiliation,
embarrassment
and
damages
to
one’s
sense
of
self-worth
and
self-esteem
might
all
be
worthy
of
compensation
depending
upon
the
circumstances
of
the
case.
In
these
situations,
compensation
does
not
flow
from
the
fact
of
dismissal
itself,
but
rather
from
the
manner
which
the
dismissal
was
effected
by
the
employer.”[emphasis
added]
I
note
that
the
loss
becomes
compensable
both
in
the
case
of
bad
faith
conduct
and
also
in
the
case
of
“unfair
dealing”.
These
same
criteria
were
echoed
by
the
Court
where
it
stated
as
follows
at
p.
37,
D.L.R.
“The
law
should
be
mindful
of
the
acute
vulnerability
of
terminated
employees
and
ensure
their
protection
by
encouraging
proper
conduct
and
preventing
all
injurious
cases
which
might
flow
from
acts
of
bad
faith
or
unfair
dealings
on
dismissal
both
tangible
and
intangible.
I
note
that
there
may
be
those
who
would
say
that
this
approach
imposes
an
onerous
obligation
on
employers.
I
would
respond
simply
by
saying
that
I
fail
to
see
how
it
can
be
onerous
to
treat
people
fairly,
reasonably,
and
decently
at
a
time
of
trauma
and
despair.
In
my
view,
the
reasonable
person
would
expect
such
treatment.
So
should
the
law.”[emphasis
added]
McLachlin
J.,
concurring
and
dissenting
in
part,
on
her
own
behalf
and
on
behalf
of
La
Forrest
and
L’Heureux
-
Dub
J.,
while
agreeing
to
extend
the
notice
period,
would
also
have
upheld
the
trial
judge’s
award
if
-
143
-
$15,000.00
for
mental
distress
on
the
basis
of
breach
of
the
contractual
obligation
of
good
faith
in
dismissing
an
employee.
Wallace,
by
deciding
that
there
are
circumstances
where
damages
may
be
awarded
for
the
manner
of
dismissal,
in
my
view,
eroded
the
contrary
principle
enunciated
in
Addis.
Wallace
is
also
important
because
apart
from
its
legal
implications
it
refers
to
the
nature
of
conduct
(bad
faith
or
unfair
dealing)
which
may
result
in
damages
as
well
as
the
impact
of
dismissal
on
an
employee
which
I
find
to
be
relevant
considerations
in
unjust
situations
under
a
collective
agreement.
Fidler
v.
Sun
Life
Assurance
Co.
of
Canada
[2006]
2
S.C.R.
3
is
the
most
comprehensive
case
setting
out
the
evolving
principles
in
dealing
with
damages
for
mental
distress
in
cases
of
contract.
In
that
case,
Sun
Life,
the
insurer,
denied
Ms.
Fidler
the
long
term
disability
benefits
to
which
she
was
entitled.
The
trial
judge
awarded
Ms.
Fidler
damages
for
mental
distress
resulting
from
Sun
Life’s
breach
of
the
group
disability
insurance
contract
but
refused
to
award
punitive
damages
based
on
his
conclusion
there
was
no
bad
faith.
The
trial
judge’s
award
for
damages
for
mental
-144-
distress
was
upheld
by
both
the
Court
of
Appeal
for
British
Columbia
and
the
Supreme
Court
of
Canada.
However,
the
Supreme
Court
of
Canada
reversed
the
Court
of
Appeal’s
order
awarding
punitive
damages
to
Ms.
Fidler.
After
reviewing
the
law
concerning
damages
for
metal
distress
for
breach
of
contract,
the
Court
concluded,
(consistent
with
Wilson
J’s.
earlier
views)
as
follows
atp.
19,
“We
conclude
that
damages
for
mental
distress
for
breach
of
a
contract
may,
in
appropriate
cases,
be
awarded
as
an
application
of
the
principle
in
Hadley
v.
Baxendale:
...
The
aim
of
compensatory
damages
is
to
restore
the
wronged
party
to
the
position
he
or
she
would
have
been
had
the
contract
not
been
broken...
There
is
no
reason
why
this
should
not
include
damages
for
mental
distress,
where
such
damages
were
in
the
reasonable
contemplation
of
the
parties
at
the
time
the
contract
was
made.”
(emphasis
added)
The
Court
also
established
that
damages
for
mental
distress
may
be
awarded
where
parties
enter
into
a
contact,
the
pbject
of
which
is
to
secure
a
psychological
benefit.
The
Court,
after
referring
to
commercial
contracts
where
mental
distress
is
not
ordinarily
within
the
contemplation
of
the
parties,
stated
as
follows
at
p.
20,
-
145
-
“The
matter
is
otherwise,
however,
when
the
parties
enter
into
a
contract,
an
object
of
which
is
to
secure
a
particular
psychological
benefit.
In
such
a
case,
damages
arising
from
such
mental
distress
should
in
principle
be
recoverable
where
they
are
established
on
the
evidence
and
shown
to
have
been
within
the
reasonable
contemplation
of
the
parties
at
the
time
the
contract
was
made.
The
basic
principles
of
contract
damages
do
not
cease
to
operate
merely
because
what
is
promised
is
an
intangible,
like
mental
security.”
[emphasis
addedJ
The
Court
determined
that
while
mental
distress
must
reasonably
be
contemplated
by
the
parties
to
attract
damages,
it
need
not
be
“the
dominant
aspect
or
on
the
very
essence
of
the
bargain”.
The
Court
stated
at
p
21,
“The
principle
suggests
that
as
long
as
the
promise
in
relation
to
state
of
mind
is
part
of
the
bargain
in
the
reasonable
contemplation
of
the
contracting
parties,
mental
distress
damages
arising
from
the
breach
are
recoverable.
This
is
to
state
neither
more
nor
less
than
the
rule
in
Hadley
v.
Baxendale.”
The
Court
also
distinguished
the
concept
of
“true
aggravated
damages”
from
damages
resulting
from
breach
of
contract.
Compensatory
damages
that
are
awarded
as
a
result
of
a
breach
of
contract
where
the
object
is
to
secure
a
“psychological
benefit”
are
based
on
the
reasonable
contemplation
of
the
parties
at
the
time
of
the
contract
formation
and
are
assessed
based
on
the
rule
of
Hadley
v.
Baxendale.
As
such
“they
are
not
true
aggravated
damage
awards”.
The
Court
noted
that
this
particular
-
146
-
head
of
damages
explained
the
extended
period
of
notice
in
employment
law
which
was
awarded
in
the
Wallace
case.
The
Court
pointed
out
that
“true
aggravated
damages”
may
arise
out
of
separate
aggravating
circumstances.
“The
award
of
damages
in
such
a
case
arises
from
an
independent
cause
of
action
and
“has
nothing
to
do
with
the
contractual
damages
under
the
rule
in
Hadley
v.
Baxendale”.
The
Court
stated
at
p.
23:
“An
independent
cause
of
action
will
only
need
to
be
proved
where
damages
are
of
a
different
sort
entirely
and
where
they
are
being
sought
on
the
basis
of
aggravating
circumstances
that
extend
beyond
what
the
parties
expected
when
they
concluded
the
contract.”
The
Court
also
noted
that
the
degree
of
mental
suffering
caused
by
the
breach
must
be
of
a
degree
sufficient
to
warrant
compensation.
In
Fidler,
the
Court
also
discussed
when
punitive
damages
could
be
awarded
and
stated
that
to
attract
punitive
damages
it
requires
impugned
conduct
that
departs
markedly
from
the
ordinary
standards
of
decency
which
can
be
described
as
malicious,
oppressive
or
high
handed;
however
punitive
damages
should
only
be
resorted
to
in
exceptional
cases.
The
Court
also
indicated
that
the
conduct
must
be
independently
actionable
and
-
147
-
that
a
breach
of
a
contractual
duty
to
act
in
good
faith
will
meet
this
requirement.The
issue
of
punitive
damages
was
more
fully
explored
in
the
earlier
case
of
Whiten
v.
Pilot
Insurance
Co.
[2002]
1
S.C.R.
595.
That
case
arose
from
an
insurance
claim
as
a
result
of
a
fire
destroying
the
Whiten’s
home
and
contents.
Pilot
Insurance
not
only
denied
the
claim
but
alleged
the
Whitens
had
torched
their
own
home
in
the
face
of
cogent
evidence
which
said
there
was
no
evidence
whatsoever
of
arson.
Pilot’s
position
was
totally
discredited
at
trial
and
the
jury
awarded
compensating
damages
and
one
million
dollars
in
punitive
damages.
The
Supreme
Court
of
Canada
restored
the
jury
award
to
one
million
dollars
and
allowed
the
appeal
from
the
Court
of
Appeal
which
had
reduced
the
punitive
damage
award
to
$100,000.The
Court
in
Whiten
stated
that
“punitive
damages
are
awarded
against
a
defendant
for
‘malicious,
oppressive
and
high
handed’
misconduct
that
offends
the
Court’s
sense
of
decency”
and
“represents
a
marked
departure
from
ordinary
standards
of
decent
behavior”.
The
Court,
after
reviewing
the
nature
of
punitive
damages
in
a
number
of
jurisdictions,
-
148
-
concluded
that
limiting
punitive
damages
by
categories
was
rightly
rejected
in
Canada.
The
Court
required
that
a
determination
of
the
circumstances
should
be
made
to
warrant
the
addition
of
punishment
to
compensation
in
a
civil
action.
However,
“it
is
in
the
nature
of
the
remedy
that
punitive
damages
will
largely
be
restricted
to
intentional
torts
...
or
breach
of
fiduciary
duty”
and
“as
the
exceptional
case
in
contract”.
Or
more
broadly
speaking,
punitive
damages
ought
to
be
available
where
“the
conduct
of
the
defendant
[was]
such
as
to
merit
condemnation
of
the
Court”.
The
Court
explicitly
stated
that
Pilot
was
under
a
duty
of
good
faith
and
fair
dealing
and
that
breach
of
the
duty
of
good
faith
is
independent
of
and
in
addition
to
the
breach
of
contractual
duty
to
pay
the
loss.
“It
constitutes
an
‘actionable
wrong’
within
the
Vorvis
rule,
which
does
not
require
an
independent
tort”.
The
Court
further
stated
at
p.
640,
“An
independent
actionable
wrong
is
required,
but
it
can
be
found
in
breach
of
a
distinct
and
separate
contractual
provision
or
other
duty
such
as
a
fiduciary
obligation.”
Further,
the
Court
stated
that
“punitive
damages
can
be
awarded
in
the
absence
of
an
accompanying
tort”
and
that
as
a
procedural
rule
of
fairness
the
facts
said
to
justify
punitive
damages
should
be
pleaded
with
some
particularity.
The
Court
indicated
that
when
determining
whether
to
award
-
149
-
punitive
damages
the
degree
of
misconduct,
the
financial
or
other
vulnerability
of
the
plaintiff
and
the
consequent
abuse
of
power
by
a
defendant
where
there
is
a
power
imbalance
should
be
included
among
the
various
factors
to
be
considered.
In
this
context,
I
particularly
note
the
comments
of
Wilson
J.
in
Vorvis
where
she
refers
to
the
vulnerability
of
employees
and
the
disparity
of
power
between
employers
and
employees.
Also,
an
award
of
punitive
damages
should
be
rationally
proportionate.
The
Court
warned
that
punitive
damages
are
not
compensatory
and
stated
at
p.
653,
“Aggravated
damages
are
the
proper
vehicle
to
take
into
account
the
additional
harm
caused
to
the
plaintiff’s
feeling
by
reprehensible
or
outrageous
conduct
on
the
part
of
the
defendant.
Otherwise,
there
is
a
danger
of
“double
recovery”
for
the
plaintiff’s
emotional
stress,
once
under
the
heading
of
compensation
and
secondly
under
the
heading
of
punishment.”
Also,
punitive
damages
are
awarded
if
all
other
penalties
are
taken
into
account
and
found
to
be
inadequate
to
accomplish
the
objectives
of
retribution,
deterrence,
and
denunciation
“and
in
this
context
the
Court
noted
that
compensatory
damages
also
punish”.
However,
the
Court,
based
on
the
facts
of
the
case,
concluded
that
the
compensatory
damages
($345,000.)
were
not
sufficient
to
avoid
a
repetition
of
the
offence
and
-
150-
deterrence
to
others
since
it
was
not
more
than
the
respondent
had
contractually
obligated
itself
to
pay
under
the
insurance
policy.
That
finding
is
important
in
the
collective
bargaining
context,
because
in
my
view,
where
there
is
a
violation
of
the
just
cause
provision
and
an
employer
is
required
to
pay
wages
and
the
cost
of
other
benefits,
those
are
compensatory
out
of
pocket
or
special
damages
and
as
in
Pilot
should
not
be
considered
when
dealing
with
proportionality
if
it
is
also
determined
that
punitive
damages
are
warranted.The
last
relevant
case
dealing
with
both
aggravated
and
punitive
damages
is
the
decision
of
the
Supreme
Court
of
Canada
in
Honda
Canada
Inc.
v.
Keays
[2008]
2
S.C.R.
362.
That
case
was
an
employment
case
in
which
Mr.
Keays
sued
for
wrongful
dismissal.
The
trial
judge
held
that
the
employer
committed
acts
of
discrimination,
harassment
and
misconduct
against
Mr.
Keays
and
increased
the
notice
period
from
fifteen
(15)
months
to
twenty-four
(24)
months
as
an
award
for
additional
damages
dependent
on
the
manner
of
dismissal.
He
also
awarded
punitive
damages
against
the
employer
in
an
amount
of
$500,000.00.
The
Supreme
Court
of
Canada
set
aside
both
the
award
of
aggravated
damages
for
the
manner
of
dismissal
and
also
the
award
for
punitive
damages.
-151
-
The
Supreme
Court
reviewed
the
various
cases
that
had
dealt
with
the
propriety
of
damages
for
wrongful
dismissal
and
relying
on
Fidler
stated
at
p.
368,
369
“that
it
was
no
longer
necessary
that
there
be
an
independent
actionable
wrong
before
damages
for
mental
distress
can
be
awarded
for
breach
of
contract
whether
or
not
it
is
a
‘peace
of
mind’
contract.”
The
Court
again
concluded
that
damages
are
recoverable
based
on
the
principle
articulated
in
Hadley
v.
Baxendale
as
follows
at
p.
389
“that
damages
are
recoverable
for
a
contractual
breach
if
the
damages
are
such
as
may
fairly
and
reasonably
be
considered
either
arising
naturally
from
such
breach
of
contract
itself,
or
such
as
may
reasonably
be
supposed
to
be
in
the
contemplation
of
both
parties.”
The
Court
determined
that
since
a
contract
of
employment
is,
by
its
very
terms,
subject
to
cancellation
on
notice
or
subject
to
payment
of
damages
in
lieu
of
notice,
without
regard
to
the
ordinary
psychological
impact
of
that
decision,
the
normal
distress
and
hurt
feelings
resulting
from
dismissal
are
not
compensable.
I
pause
to
note
that
the
leeway
given
to
an
employer
to
dismiss
an
employee
where
there
is
an
employment
contract
is
completely
different
from
an
employer’s
obligation
under
a
collective
-
152-
agreement
where
an
employer
is
subject
to
a
just
cause
provision.
The
Court
also
concluded
that
as
long
as
the
promise
in
relation
to
state
of
mind
is
part
of
the
bargain
in
the
reasonable
contemplation
of
the
contracting
parties
damages
for
mental
distress
arising
from
its
breach
are
recoverable.The
Court
determined
that
when
dealing
with
punitive
damages
an
independent
tort
is
not
required.
The
Court
stated
at
p.
392,
“‘that
an
actionable
wrong’
within
the
Vorvis
rule
does
not
require
an
independent
tort
and
that
breach
of
the
contractual
duty
of
good
faith
can
qualify
as
an
independent
wrong”
and
that
“an
independent
actionable
wrong
is
required,
but
it
can
be
found
in
breach
of
separate
contractual
provision
or
other
duty
such
as
a
fiduciary
obligation.”
(emphasis
added)
That
comment
raises
the
issue
as
to
whether
a
breach
of
the
separate
“contractual
provision”
requiring
an
employer
to
discipline
or
dismiss
under
a
collective
agreement
for
just
cause,
in
and
of
itself,
constitutes
an
independent
actionable
wrong
within
the
meaning
of
Honda
Canada
Inc.,.
I
also
note
that
the
Court
made
no
mention
of
“unfair
dealing”
which
is
one
of
the
wrongs
referred
to
in
Wallace.
-
153-
The
Court
dealt
specifically
with
punitive
damages
and
stated
at
p.
393’
“punitive
damages
are
restricted
to
advertent
wrongful
acts
that
are
so
malicious
and
outrageous
that
they
are
deserving
of
punishment
on
their
own.,’
And
later,
the
Court
stated
at
p.
396,
“The
independent
actionable
wrong
requirement
is
but
one
of
many
factors
that
merit
careful
consideration
by
the
Courts
in
allocating
punitive
damages.
Another
important
thing
to
be
considered
is
that
conduct
meriting
punitive
damages
awards
must
be
‘harsh,
vindictive,
reprehensible
and
malicious’,
as
well
as
‘extreme
in
its
nature
and
such
that
by
any
reasonable
standard
it
is
deserving
of
full
condemnation
and
punishment”
(Von/is,
at
p.
1108)”
Also,
the
Court
stated
at
p.
396
that
it
is
an
“important
principle
that
courts
when
allocating
punitive
damages
must
focus
on
the
defendant’s
misconduct,
not
on
[page
397]
the
plaintiff’s
loss.”
(Whiten,
at
paragraph
73)
The
Court
concluded
that
Honda’s
conduct
was
not
sufficiently
egregious
or
outrageous
to
warrant
an
award
of
punitive
damages.
-154-
While
the
better
practice
is
to
read
the
decisions
of
the
Supreme
Court
of
Canada
in
full
the
various
principles
enunciated
by
the
Court
may
be
briefly
summarized
as
follows:
1)
Damages
for
mental
distress
in
contract
cases
are
recoverable
based
on
the
principles
articulated
in
Hadley
v.
Baxendale
which
contemplates
that
damages
may
be
awarded
(i)
if
they
may
fairly
and
reasonably
be
considered
rising
naturally
from
such
breach
of
contact
itself
or,
(ii)
if
they
may
reasonably
be
supposed
to
be
in
the
contemplation
of
both
parties
at
the
time
the
contact
was
made.
2.
Damages
for
mental
distress
may
be
recoverable
where
the
parties
enter
into
a
contract
the
object
of
which
is
to
secure
a
particular
psychological
benefit
or
an
intangible
benefit
like
mental
security.
3.
While
mental
distress
as
a
consequence
of
the
breach
must
reasonably
be
contemplated
by
the
parties,
it
need
not
be
the
very
essence
or
the
dominant
aspect
of
the
bargain.
-155-
4.
True
aggravated
damages,
which
arise
out
of
aggravating
circumstances
may
be
awarded
as
a
result
of
an
independent
cause
of
action
and
has
nothing
to
do
with
contractual
damages
under
the
Hadley
v.
Baxendale
rule.
An
independent
actionable
wrong
is
not
a
pre-requisite
for
the
recovery
of
mental
distress
damages.
5.
The
degree
of
mental
suffering
caused
by
the
breach
must
be
of
a
degree
sufficient
to
warrant
compensation.
6.
Punitive
damages
should
be
resorted
to
only
in
exceptional
cases
and
the
required
conduct
should
constitute
a
marked
departure
from
the
ordinary
standards
of
decency
and
must
be
independently
actionable.
A
breach
of
the
contractual
duty
to
act
in
good
faith
will
meet
this
requirement.
However,
an
award
of
punitive
damages
does
not
depend
exclusively
on
the
existence
of
an
actionable
wrong.
An
actionable
wrong
can
be
found
in
breach
of
a
distinct
and
separate
contractual
provision
or
other
duty
such
as
a
fiduciary
obligation.
-
156
-
7.
Punitive
damages
are
awarded
for
malicious,
oppressive
and
high
handed
conduct
that
offends
a
sense
of
decency.
See
Whitten
for
a
comprehensive
statement.
8.
The
objectives
of
punitive
damages
are
retribution,
deterrence
and
denunciation.
The
aim
is
to
punish
the
defendant.
9.
The
better
practice
is
that
a
claim
for
punitive
damages
should
be
specifically
pleaded.
10.
Punitive
damages
must
be
proportionate
to
the
blameworthy
conduct,
the
vulnerability
of
the
claimant,
the
need
for
deterrence,
and
the
compensatory
damages.
-
157-
Legal
Analysis:
The
Collective
Agreement
(i)
Contract
Principles
A
board
of
arbitration
under
a
collective
agreement
has
the
authority
to
award
damages
for
mental
distress
and
punitive
damages
under
(i)
the
contract
principles
summarized
above
and
(ii)
by
virtue
of
the
remedial
authority
inherent
in
the
just
cause
provisions
found
in
collective
agreements.
I
turn
first
to
the
contractual
elements
of
a
collective
agreement
and
whether
the
principles
enunciated
in
Fidler
and
Hadley
v.
Baxendale
are
applicable.
Although
collective
agreements
differ
from
employment
contracts,
there
is
a
common
human
element
that
exists
in
both
types
of
agreements.
The
incidents
of
employment
which
I
have
referred
to
above
that
both
the
Supreme
Court
of
Canada
and
the
House
of
Lords
have
enunciated
in
separate
and
isolated
ways
when
woven
together
demonstrate
the
underlying
human
condition
and
human
element
that
exists
in
employment.
Thus,
references
such
as
“disparity
of
power”,
“vuiherability
of
employees”,
“sense
of
identity,
self-worth
and
emotional
well-being”,
“loss
of
one’s
job
is
always
a
traumatic
event”
and
“psychological
welfare
of
the
employee”
are
phrases
and
epithets
that
reflect
the
emotional
I
psychological
aspects
of
the
employment
-
158-
relationship.
This
human
element
and
condition
inherent
in
employment
motivates
and
influences
the
terms
of
a
collective
agreement
so
as
to
provide
employees
with
what
has
commonly
and
historically
been
referred
to
as
job
security.
These
underlying
human
elements
influence
collective
agreement
language
and
provisions
which
provide
for
compensation;
benefits
such
as,
medical,
dental,
life
insurance
and
pensions;
working
conditions
including
the
regulation
of
seniority,
layoffs
recall
and
just
cause
provisions
in
the
case
of
discipline
and
discharge.
In
my
view,
job
security
encompasses
mental
security
within
the
meaning
of
Fidler
and
psychological
welfare
as
described
in
Malik
(which
also
dovetails
neatly
with
the
similar
reference
in
Fidler).
In
short,
while
the
parties
to
a
collective
agreement
bargain
about
specific
terms
for
inclusion
in
a
collective
agreement
the
psychological/emotional
elements
that
I
have
referred
to
above
are
intangible
benefits
which
are
all
part
of
both
job
security
and
mental
security;
simply
put,
having
a
job
gives
a
person
mental
security
There
is,
consistent
with
Fidler,
a
particular
and
intangible
psychological
berefit
interwoven
into
the
terms
of
a
collective
agreement
and
that
is
why,
as
Wallace
stated,
that
the
loss
of
one’s
job
is
always
a
traumatic
event
no
doubt
because
the
loss,
apart
from
the
monetary
benefits
also
includes
the
loss
of
the
human
elements
or
-
159
-
emotional/psychological
aspects
of
work
which
are
referred
to
by
the
Supreme
Court
of
Canada
and
the
House
of
Lords.
The
emotional
/
psychological
aspects
of
employment
or
the
human
condition
and
elements
are
within
the
contemplation
of
the
parties
at
the
time
the
contract
was
made,
notwithstanding
that
these
aspects
may
be
intangible
and
not
the
dominant
aspect
of
the
negotiations;
they
may
not
be
articulated
but
are
ever
present.
Moreover,
as
Wallace
puts
it,
parties
to
a
collective
agreement
are
aware
that
the
loss
of
one’s
job
is
a
traumatic
event
and
within
the
collective
bargaining
community
discharge
is
often
referred
to
as
labour
relations
capital
punishment.
The
loss
may
be
more
traumatic
where
the
loss
is
the
result
of
egregious
breach
of
the
just
cause
provision.
Enhanced
trauma
may
fairly
and
reasonably
be
considered
to
arise
naturally
from
an
egregious
breach
of
the
just
cause
provision
within
the
meaning
of
Hadley
v
Baxendale.
It
is
the
rupture
from
the
latent
emotional/
psychological
elements
underlying
employment
which
are
interwoven
with
the
loss
of
the
patent
monetary
and
other
benefits
of
the
collective
agreement
that
are
the
cause
of
the
trauma.
The
power
imbalance,
the
vulnerability
of
employees,
the
sense
of
self-worth
and
emotional
well-being
and
psychological
welfare
are
the
societal
and
human
-
160
-
elements
that
are
the
intangible
weft
that
are
woven
through
the
language
warp
of
the
collective
agreement
and
mental
distress
may
reasonably
be
considered
as
arising
naturally
from
the
loss
of
those
elements
caused
by
an
egregious
breach
of
the
collective
agreement.
AlternativeLy,
since
the
loss
of
one’s
job
is
a
traumatic
event,
mental
distress
damages
may
reasonably
have
supposed
to
be
in
the
contemplation
of
both
parties
at
the
time
the
contract
was
made.
Or,
to
put
the
matter
more
simply,
everyone
involved
in
labour
relations
or
collective
bargaining
knows
and
is
aware
that
loss
of
one’s
job
is
an
obvious
traumatic
event
and
where
egregious
conduct
violates
the
just
cause
provision,
there
is
no
legal
basis
for
denying
damages
for
mental
distress
or
punitive
damages.
An
egregious
breach
of
the
just
cause
provision,
in
my
view,
falls
within
the
tests
articulated
in
both
Fidler
and
Hadley
v.
Baxendale
enabling
an
arbitrator
to
award
both
damages
for
mental
distress
and
punitive
damages.
-
161
-
Legal
Analysis:
The
Collective
Agreement
(ii)
Remedial
authority
of
the
Arbitrator
Nor-Man
Regional
Health
Authority
Inc.,
arose
as
a
result
of
an
arbitration
decision
where
the
arbitrator
determined
the
Union
was
estopped
from
grieving
a
vacation
bonus
provision
of
a
collective
agreement.
The
issue
before
the
Court
concerned
the
nature
of
the
remedy
of
estoppel
imposed
by
the
arbitrator
and
whether
“he
adapted
and
applied
the
equitable
doctrine
of
estoppel
in
a
manner
reasonably
consistent
with
the
objectives
and
purposes
of
the
[Labour
Relations
Act],
the
principles
of
labour
relations,
the
nature
of
the
collective
bargaining
process,
and
the
factual
matrix
of
[the
Grievor’s]
grievance”.
In
concluding
the
arbitrator
in
that
context
had
properly
adapted
and
applied
the
equitable
doctrine,
the
Court
made
a
number
of
statements
concerning
the
broad
remedial
authority
of
the
arbitrator.
In
determining
that
the
Court
of
Appeal
erred
in
reviewing
the
arbitrator’s
decision
for
correctness
Fish
J.
speaking
for
the
Court
stated
at
p.
620,
[5]
Labour
arbitrators
are
not
legally
bound
to
apply
equitable
and
common
law
principles
—
including
-
162
-
estoppel
—
in
the
same
manner
as
courts
of
law.
Theirs
is
a
different
mission,
informed
by
the
particular
context
of
labour
relations.
[6]
To
assist
them
in
the
pursuit
of
that
mission,
arbitrators
are
given
a
broad
mandate
in
adapting
the
legal
principles
they
find
relevant
to
the
grievances
of
which
they
are
seized.
They
must,
of
course,
exercise
that
mandate
reasonably,
in
a
manner
that
is
consistent
with
the
objectives
and
purposes
of
the
statutory
scheme,
the
principles
of
labour
relations,
the
nature
of
the
collective
bargaining
process,
and
the
factual
matrix
of
the
grievance.
The
Court
stated
that
an
administrative
tribunal’s
decision
will
be
reviewable
for
correctness
if
it
raises
a
constitutional
issue,
a
question
of
“general
law”
‘that
is
both
of
central
importance
to
the
legal
system
as
a
whole
and
outside
the
adjudicator’s
specialized
area
of
expertise’
or
a
“true
question
of
jurisdiction
or
vires”.
However,
the
standard
of
reasonableness
prevails
where
the
arbitrator’s
“decision
raises
issues
of
fact,
discretion
or
policy:
involves
inextricably
intertwined
legal
and
factual
issues;
or
relates
to
the
interpretation
of
the
tribunal’s
enabling
(or
“home”)
statute
or
“statutes
closely
connected
to
its
function,
with
which
it
will
have
broad
familiarity”.
The
Court
concluded
that
the
remedy
imposed
by
the
arbitrator
was
reasonable
and
not
subject
to
review.
-
163
-
The
Court
also
concluded
that
labour
arbitrators
have
a
broad
statutory
and
contractual
mandate.
The
Court
stated
at
p.
629,
630
—
[44]
Common
law
and
equitable
doctrines
emanate
from
the
courts.
But
it
hardly
follows
that
arbitrators
lack
either
the
legal
authority
or
the
expertise
required
to
adapt
and
apply
them
in
a
manner
more
appropriate
to
the
arbitration
of
disputes
and
grievances
in
a
labour
relations
context.
[45]
On
the
contrary,
labour
arbitrators
are
authorized
by
their
broad
statutory
and
contractual
mandates
—
and
well
equipped
by
their
expertise
—
to
adapt
the
legal
and
equitable
doctrines
they
find
relevant
within
the
contained
sphere
of
develop
doctrines
and
fashion
remedies
appropriate
in
their
field,
drawing
inspiration
from
general
legal
principles,
the
objectives
and
purposes
of
the
statutory
scheme,
the
principles
of
labour
relations,
the
factual
matrix
of
the
grievances
of
which
they
are
seized.
[46]
Thus
flows
from
the
broad
grant
of
authority
vested
in
labour
arbitrators
by
collective
agreements
and
by
statutes
such
as
the
LRA,
which
governs
here.
Pursuant
to
s.
121
of
the
LRA,
for
example,
arbitrators
and
arbitration
boards
must
consider
not
only
the
collective
agreement
but
also
“the
real
substance
of
the
matter
in
dispute
between
the
parties”.
They
are
“not
bound
by
a
strict
legal
interpretation
of
the
matter
in
dispute”.
And
their
awards
“provide
a
final
and
conclusive
settlement
of
the
matter
submitted
to
arbitration”.
[47]
The
broad
mandate
of
arbitrators
flows
as
well
from
their
distinctive
role
in
fostering
peace
in
industrial
relations.*********
-
164
-
[49}
Labour
arbitrators
are
uniquely
placed
to
respond
to
the
exigencies
of
the
employer-
employee
relationship.
But
they
require
the
flexibility
to
craft
appropriate
remedial
doctrines
when
the
need
arises:
Rigidity
in
the
dispute
resolution
process
risks
not
only
the
disintegration
of
the
relationship,
but
also
industrial
discord.
The
Court
did,
however,
impose
some
restraint
on
arbitrators
who
apply
the
common
law
or
equitable
principles
as
follows
at
p.
361,
[52]
But
the
domain
reserved
to
arbitral
discretion
is
by
no
means
boundless.
An
arbitral
award
that
flexes
a
common
law
or
equitable
principle
in
a
manner
that
does
not
reasonably
respond
to
the
distinctive
nature
of
labour
relations
necessarily
remains
subject
to
juridical
review
for
its
reasonableness.
The
remedial
authority
of
a
board
of
arbitration
to
award
damages
for
mental
distress
as
well
as
punitive
damages
and
the
impact
of
the
general
law
or
common
law
on
the
collective
agreement
must
take
into
consideration
the
judgment
in
Nor-Man
and
the
broad
remedial
authority
given
to
arbitrators.
In
my
view,
both
categories
of
damages
fail
within
the
purview
of
a
collective
agreement
alone
as
well
as
the
broad
remedial
authority
of
an
arbitrator
for
the
reasons
which
follow.
An
independent
actionable
wrong
is
not
required.
-165-
I
have
indicated
McGavin
Toastmaster
specifically
states
that
the
“common
law
as
it
applies
to
individual
employment
contracts
is
no
longer
relevant
to
employer-
employee
relationships
governed
by
a
collective
agreement
which
...
deals
with
discharge
termination
of
employment
and
a
host
of
other
matters.”
Since,
Addis
was
a
common
law
matter
that
dealt
with
the
termination
of
an
individual
employment
contract,
both
Addis
and
its
progeny
should
not
be
a
consideration
in
matters
covered
by
a
collective
agreement.
McGavin
Toastmaster
simply
pulls
the
rug
out
from
under
Addis
and
the
cases
that
followed
it
(including
Vorvis)
insofar
as
those
cases
affect
collective
agreements.
It
also
is
a
reasonable
inference
from
Mcintyre
J.’s
bracketed
comments
in
Vorvis
about
collective
agreements
and
modern
labour
law
which
I
have
earlier
referred
to
that
the
Court
excluded
collective
agreements
from
its
determination
about
mental
distress
damages
and
punitive
damages.
In
short,
any
common
law
principles
that
flow
from
Addis
are
not
relevant
when
considering
remedies
under
the
just
cause
provisions
of
a
collective
agreement.
In
the
collective
agreement
in
issue
in
this
case,
Article
3,
the
Management
Rights
clause
and
as
well
Article
8,
provide
that
Teranet
may
-
166
-
discharge
and
discipline
employees
“only
for
just
cause”.
At
arbitration
a
determination
of
just
cause
is,
in
effect,
an
exercise
in
reviewing
conduct.
Initially
a
board
of
arbitration
will
consider
the
employee/grievor’s
conduct
which
brought
about
the
employer’s
disciplinary
response
or
decision
to
discharge.
After
reviewing
the
employee’s
conduct
the
board
of
arbitration
will
review
the
employer’s
conduct
in
reacting
or
responding
to
the
employee’s
conduct
and
determine
the
remedy
of
any.
Under
the
rubric
or
principle
of
just
cause
arbitrators
historically
have
examined
both
the
employers
and
employees
conduct.
Just
cause
is
a
broad
and
generous
term
and
to
that
end
the
arbitration
cases
have
not
only
examined
a
wide
array
of
conduct
but
have,
commensurate
with
that
conduct,
provided
a
variety
of
appropriate
relief.
All
of
that
is
within
the
collective
agreement
framework,
and,
in
my
view,
the
concept
of
what
is
“just”
lies
particularly
within
the
arbitrators
mandate
to
determine.
There
is
no
reason
to
limit
the
arbitrator’s
discretion
under
that
term
when
assessing
conduct
to
require
the
arbitrator
to
import
common
law
concepts
of
independent
actionable
torts
or
wrongs
into
an
arbitrator’s
determination.
The
term
just
cause
says
it
all
and
is
a
broad
enough
term
to
encompass
all
types
of
conduct
and
to
provide
an
appropriate
remedy
where
it
is
-167-
warranted.
Thus,
the
broad
nature
of
an
arbitrator’s
remedial
authority
is
governed
by
“the
particular
context
of
labour
relations”
and
as
the
Court
said
in
Nor-Man
Regional
Health
“labour
arbitrators
are
not
legally
bound
to
apply
equitable
and
common
law
principles”.
Moreover,
the
just
cause
provision
is
a
contractual
provision
in
which
the
parties
have
agreed
to
the
authority
of
an
arbitrator
to
interpret
the
conduct
of
the
parties
where
an
employee
is
disciplined
or
discharged
and
that
delegation
of
that
authority
falls
squarely
within
the
principles
enunciated
in
the
decision
of
the
Supreme
Court
in
Fidler
and/or
the
principles
enunciated
in
Hadley
v.
Baxendale.
If
the
employer
unfairly
or
egregiously
breaches
the
contractual
just
cause
provision
there
is
no
reason
not
to
award
damages
for
mental
distress
or
punitive
damages
based
on
the
just
cause
provision
alone,
without
requiring
an
independent
actionable
wrong,
since
the
parties
are
aware
that
“loss
of
one’s
job
is
always
a
traumatic
event”.
It
is
the
reprehensible
or
egregious
conduct
which
attracts
the
principle
of
mental
distress
or
punitive
damages
and
not
the
legal
category
of
the
wrong.
Paragon
Properties
Ltd.,
supra.
A
breach
of
the
just
cause
provision
constitutes
a
“proper
case”
as
Lord
-
168
-
Denning
suggested
in
which
mental
distress
damages
and
punitive
damages
may
be
awarded.
Having
outlined
what
I
consider
to
be
the
broad
authority
of
an
arbitrator
it
is
important
to
understand
when
such
remedies
for
both
mental
distress
and
also
punitive
damages
may
be
awarded.
Here
again
there
is
a
clear
distinction
between
employment
contacts
and
collective
agreements.
For
the
most
part,
the
usual
remedy
for
breach
of
an
employment
contract
concerns
the
proper
length
of
notice
and
the
resulting
compensation.
But
that
is
not
the
usual
remedy
for
breach
of
the
just
cause
provision
in
a
collective
agreement,
particularly
in
discharge
cases
where
the
usual
remedy
is
reinstatement
to
employment.
The
differing
nature
of
the
reinstatement
remedy
under
a
collective
agreement
underscores
the
importance
of
being
gainfully
employed
for
vulnerable
employees
who
are
covered
by
a
collective
agreement.
However,
the
remedy
of
reinstatement,
in
my
view,
goes
a
long
way
to
assuage
any
mental
distress
suffered
by
a
grievor
and
reinstatement
should
be
the
primary
redress
for
a
discharged
employee.
It
is
only
where
the
employer’s
behavior
is
egregious,
unfair,
reprehensible
or
the
like
and
-
169-
the
commensurate
mental
distress
that
arises
is
excessive
that
mental
distress
damages
or
punitive
damages
should
be
awarded.
Both
conditions
must
be
present.
Examples
of
egregious
employer
conduct
include
bad
faith,
unfair
dealing,
untruthful
or
misleading
conduct
or
discrimination.
In
turn,
the
extent
of
the
employee’s
mental
distress
should
be
medically
supported
and
of
a
degree
sufficient
to
warrant
compensation.
Nor
every
unjust
dismissal
will
result
in
an
award
of
damages
for
mental
distress
or
punitive
damages.
As
to
punitive
damages,
the
test
should
be
the
same
or
similar
to
the
type
of
conduct
that
merits
punishment
which
is
described
in
the
Pilot
case
-
that
is,
conduct
which
is
“malicious,
aggressive
and
high
handed”
and
offends
an
arbitrator’s
sense
of
decency.
And
finally,
there
is
an
issue
of
proportionality.
None
of
the
cases
dealing
with
proportionality
have
dealt
with
the
situation
where
an
award
has
fully
dealt
with
special
damages
such
as
wages
and
employment
benefits
as
well
as
damages
for
mental
distress
and
punitive
damages.
While
I
am
in
agreement
with
the
decided
cases
that
there
should
be
proportionality
between
damages
for
mental
distress
and
punitive
damages
—
both
are
discretionary
amounts,
I
would
not
include
special
damages
such
as
wages
or
employment
benefits
when
considering
proportionality,
-170-
where
there
is
a
violation
of
the
just
cause
provision.
Both
wages
and
benefits
are
non-discretionary
and
are
amounts
that
were
required
to
have
been
paid
had
the
employer
not
unjustly
terminated
the
employee.
Special
damages
are
not
in
the
nature
of
an
award
that
punishes
the
employer
and
should
not
be
considered
as
part
of
a
disproportionate
award
in
the
same
manner
that
both
compensatory
and
punitive
damages
are
considered.
Applying
those
considerations
to
the
instant
case,
it
is
my
view,
that
apart
from
the
very
specific
findings
concerning
both
just
cause
and
the
medical
evidence,
the
conduct
of
Teranet
was
not
so
egregious
to
warrant
damages
for
mental
distress
or
punitive
damages,
nor
was
the
trauma
as
alleged
by
the
Grievor
sufficient
to
warrant
an
award
for
mental
distress
or
punitive
damages
based
on
the
conduct
of
the
parties
as
outlined
below.
-171
-
Evidentiary
AnalysisHarassment
I
now
turn
to
the
Grievor’s
allegations
of
harassment.
For
the
reasons
that
follow,
I
find
neither
Susan
Steer
nor
anyone
acting
on
behalf
of
Teranet
harassed
the
Grievor.
Indeed,
there
has
been
no
harassment
of
the
Grievor
whatsoever.
I
further
find
that
where
there
is
any
contradiction
or
conflict
in
the
evidence
that
I
prefer
the
evidence
of
Teranet’s
witnesses
to
that
of
the
Union’s
witnesses
and
I
particularly
prefer
the
evidence
of
Susan
Steer
to
that
of
the
Grievor.
The
first
allegation
of
harassment
concerns
the
incident
where
Ms.
Steer
went
to
the
washroom
and
noticed
the
Grievor
on
her
phone.
When
Ms.
Steer
left
the
washroom,
the
Grievor
was
still
on
the
phone
and
Ms.
Steer
tapped
on
her
watch
which
suggested
the
Grievor
might
be
taking
too
much
time
away
from
her
work.
At
the
time,
the
Grievor
was
on
a
performance
plan
because
her
work
was
below
standard.
There
were
concerns
that
the
Grievor
was
not
focused
and
that
she
was
spending
a
lot
of
time
on
the
phone.
The
Grievor
admitted
that
her
work
performance
was
a
legitimate
concern
for
Teranet.
The
Grievor
was
on
her
break
and
the
length
of
the
call
was
for
eleven
minutes
which
did
not
exceed
her
break
of
-
172
-
fifteen
minutes.
Ms.
Steer
did
not
speak
to
the
Grievor
about
the
call
nor
was
the
Grievor
disciplined
for
the
call.
The
Grievor,
who
claims
to
be
shocked
by
the
incident,
did
not
speak
to
Ms.
Steer
about
it.
I
find
that
the
tap
on
the
watch
was
a
reminder
by
a
manager
to
an
under-
performing
employee
to
be
careful
about
her
time
and
was
part
of
the
normal
give
and
take
that
occurs
in
the
workplace.
Ms.
Steer
had
a
legitimate
concern
about
the
Grievor’s
substandard
work
performance
and
lack
of
focus
and
attempted
to
subtly
remind
her
not
to
take
undue
time
away
from
her
work.
There
was
no
accusation
that
the
Grievor
was
taking
time
beyond
the
allowed
break
time,
nor
was
there
any
follow-up
by
speaking
to
or
disciplining
the
Grievor
about
the
call.
This
was
not
harassment.The
next
allegation
concerns
the
Grievor
being
called
by
Ms.
Steer
in
November
of
2007,
when
she
had
legitimately
taken
a
flex
day.
The
Grievor
surmised
that
Cheryl
Bryant
was
aware
of
the
Grievor’s
request
for
a
flex
day
and
had
told
Ms.
Steer
about
it.
Cheryl
Bryant
testified
that
she
was
not
aware
of
the
Grievor’s
request
and
had
not
said
anything
to
Susan
Steer.
Susan
Steer
testified
she
knew
nothing
of
the
Grievor’s
request
for
-
173-
a
flex
day
and
admitted
it
was
a
mistake
in
those
circumstances
to
call
her.
The
Grievor’s
allegation
is
based
on
mere
conjecture;
certainly
Ms.
Bryant
had
no
reason
to
testify
that
she
was
unaware
of
the
Grievor’s
request.
Also,
the
Grievor
did
not
complain
to
her
Union
or
file
a
grievance
about
the
call,
at
the
time.
With
respect
to
this
allegation,
I
accept
the
evidence
of
Ms.
Bryant
and
Ms.
Steer
that
they
knew
nothing
of
the
Grievor’s
request
for
a
flex
day
and
the
call
was
a
simple
mistake.
This
was
not
harassment.
I
determine
that
these
two
allegations
which
occurred
approximately
eleven
months
prior
to
the
Grievor’s
termination
and
not
pursued
by
the
Grievor
or
grieved
at
the
time
were
incidents
that
normally
occur
in
the
work
place
and
were
part
of
the
normal
give
and
take
and
did
not
in
any
way
constitute
harassment.
I
further
determine
that
these
were
stale
incidents
which
were
improperly
raised
in
an
attempt
to
buttress
the
Grievor’s
claim
of
harassment.
The
next
incident
occurred
in
December
2007
when
it
was
brought
to
Susan
Steer’s
attention
that
the
Grievor
might
be
engaged
in
the
real
estate
business.
Ms.
Steer
was
concerned
because
of
the
Grievor’s
seemingly
lack
of
focus
and
substandard
work
performance
that
she
might
-
174
-
be
working
for
another
organization
on
Teranet’s
time.
The
Grievor
was
aware
of
Teranet’s
policy
which
provides
that
“Employees
have
the
right
to
choose
how
to
spend
their
non-working
hours.
You
may
choose
to
work
part-time
for
another
organization
in
addition
to
Teranet.
The
work
must
not
conflict,
appear
to
conflict,
or
potentially
conflict
with
your
duty
to
Teranet
nor
with
your
ability
to
perform
your
duties
as
a
Teranet
employee.
You
must
provide
a
written
declaration
if
you
are
directly
or
indirectly
involved
in
another
business
or
employment,
which
may
give
rise
to
a
conflict,
an
appearance
of
conflict,
or
a
potential
conflict
of
interest
with
the
interests
of
Teranet.Should
you
choose
to
work
for
an
organization
other
than
Teranet,
you
will
not:
***********
work
for
another
organization
on
Teranet’s
time
or
premises,
use
Teranet’s
supplies,
facilities,
tools,
personnel,
or
intellectual
property
while
working
for
another
organization.”
Ms.
Steer
testified
that
she
was
aware
of
another
employee
in
the
real
estate
business
who
had
signed
a
declaration
because
of
a
potential
conflict
of
interest.
-
175-
Because
of
the
nature
of
Teranet’s
work,
Ms.
Steer
was
legitimately
concerned
and
met
with
the
Grievor
on
December
6,
2008.
In
cross-
examination,
the
Grievor
acknowledged
that
Teranet
was
entitled
to
be
concerned
about
a
potential
conflict
of
interest.
At
the
meeting
the
Grievor’s
use
of
her
cell
phone
was
discussed.
The
Grievor
acknowledged
that
it
was
reasonable
for
Ms.
Steer
and
Ms.
Bryant
to
be
concerned
about
her
focus
and
lack
of
attention
to
detail,
and
her
involvement
in
the
real
estate
business
because
she
was
on
a
performance
plan
and
had
low
productivity.The
Grievor
requested
that
she
meet
again
with
Susan
Steer
and
her
Union
representative.
A
second
meeting
was
held
on
December
18,
2007
and
again,
the
Grievor’s
phone
use
and
her
role
in
the
real
estate
business
was
discussed.
The
Grievor
eventually
signed
a
declaration
acknowledging
she
was
a
real
estate
representative
of
Royal
LePage
and
admitted
that
“potential
areas
of
conflict
and
how
to
avoid
them”
were
discussed.
The
declaration
provides
as
follows:
“This
letter
is
a
declaration
regarding
Section
2.4.1.
Working
for
Another
Organization
in
the
Teranet
Employee
Handbook.
I
am
currently
working
as
a
representative
of
Royal
LePage.
I
am
completing
this
declaration
following
the
said
section
and
my
conversation
with
Susan
Steer
and
Cheryl
Bryant
-
176
-
on
Thursday,
December
6,
2007.
During
this
meeting,
we
discussed
potential
areas
of
conflict
and
how
to
avoid
them.
After
the
above-mentioned
meeting,
it
was
agreed,
that
I
will
adhere
to
section
2.4.1.
of
the
employee
guide.
I
will
not
advertise
my
real
estate
work
at
Teranet
Inc.
(i.e.
lunchroom
bulletin
boards).
It
was
agreed
that
during
my
break/lunch
times,
I
will
leave
Teranet
Inc.’s
office
to
make
or
receive
business
related
phone
calls.
All
such
matters
will
be
on
my
personal
cell
phone.
My
regular
work
business
hours
will
not
be
interrupted.
I
will
not
use
Teranet
Inc.’s
tools
while
onsite
to
access
Teranet
Inc.
products
such
as
Teraview
or
Geowarehouse.”
The
Grievor
testified
she
was
upset
about
the
December
6
meeting
which
was
“full
of
accusations,
assumptions
and
speculations
from
Susan”
and
that
being
monitored
was
demeaning
to
her.
Not
only
did
the
Grievor
agree
to
sign
the
declaration
referred
to
above,
but
she
also
acknowledged
receipt
of
the
minutes
of
both
meetings
on
December
6
and
on
December
18,
2008.
She
was
represented
by
the
Union
at
the
December
18,
2008
meeting.
While
the
Grievor
responded
to
questions
about
the
nature
of
her
phone
calls
at
work,
she
did
not
volunteer
that
she
had
used
Teranet’s
computers
on
Teranet’s
time
to
communicate
with
her
husband
about
various
real
estate
matters,
which
was
subsequently
discovered
by
Mr.
Farewell
prior
to
her
discharge
when
he
investigated
the
Grievor’s
activities.
-
177-
The
Grievor
agreed
to
the
monitoring
activities
she
now
claims
were
demeaning
and
acknowledged
receipt
of
a
copy
of
the
minutes
of
both
meetings
on
January
3,
2008,
but
did
not
complain
about
the
minutes
nor
did
she
complain
about
the
monitoring
or
signing
the
declaration.
In
a
lengthy
email
on
that
date
she
ended
her
remarks
by
stating
“I
trust
the
accusations
that
every
call
I
receive/make
is
of
a
business
nature
will
end”.
Susan
Steer
responded
in
part
as
follows:
“For
the
purpose
of
clarity,
there
was
never
an
assumption
that
every
call
you
made
was
of
a
business
nature.
I
believe
the
expectations
regarding
such
calls
have
been
made
clear
and
agreed
to
by
you
in
the
declaration
re
working
for
another
organization.
I
trust
this
matter
is
now
closed.”
The
Grievor,
despite
Union
representation,
did
not
complain
about
the
nature
of
the
meeting,
the
minutes
of
the
meeting,
the
signing
of
the
declaration
or
the
monitoring,
in
her
emails
to
Susan
Steer.
Nor
did
she
at
any
time
file
a
grievance
concerning
the
meeting
or
the
monitoring
process
to
which
she
had
agreed.
Also
her
own
notes,
which
were
filed,
state
that
“Susan
mentioned
to
me
that
I
seem
to
be
doing
my
real
estate
work
on
company
premises
and
company’s
time.
I
told
her
that
it
not
the
case”.
-
178-
As
it
turned
out,
it
was
the
case
that
the
Grievor
was
engaged
in
real
estate
activities
on
company
premises
and
using
the
company’s
facilities
or
computers.
She
was
not
fully
candid
in
her
response
to
Susan
Steer.
I
determine
that
the
Grievor
was
aware
of
Teranet’s
Code
of
Conduct
and
was
in
breach
of
it
at
the
time
of
the
December
meetings.
I
further
determine
that
given
the
nature
of
Teranet’s
business,
it
was
appropriate
for
Susan
Steer
to
inquire
into
the
Grievor’s
real
estate
activities
when
it
was
brought
to
her
attention.
The
Union
does
not
claim
that
the
Code
of
Conduct
was
in
violation
of
the
collective
agreement,
nor
does
it
deny
that
the
Grievor
was
in
breach
of
the
Code
when
she
utilized
Teranet’s
computers
for
real
estate
purposes.
I
find
Susan
Steer’s
meeting
with
the
Grievor
and
her
inquiries
were
both
understandable
and
proper
and
that.
the
signing
of
the
declaration
by
the
Grievor
as
well
as
the
monitoring
of
her
activities
in
all
the
circumstances
was
appropriate
and
part
of
management’s
responsibility.
Given
the
appropriateness
of
the
meeting
and
the
inquiries,
the
agreement
by
the
Grievor
in
both
signing
the
declaration
and
agreeing
to
the
monitoring,
the
presence
of
the
Union
representative
at
the
December
18th
meeting,
the
Grievor’s
access
to
Union
advice,
the
lack
of
complaint
or
grievance
by
the
Grievor
at
the
time
-
179-
coupled
with
her
lack
of
candour
and
untruthfulness,
I
determine
that
the
meetings
with
Susan
Steer
were
part
of
the
ordinary
course
of
business
and
were
necessary.
This
was
not
harassment
and
in
all
respects,
I
prefer
Teranet’s
and
Ms.
Steer’s
evidence
about
the
situation
and
the
meeting
to
that
of
the
Grievor.There
are
no
allegations
of
harassment
between
the
meetings
of
December
6
and
18,
2007,
and
the
allegations
surrounding
the
phone
calls
to
the
Grievor
on
September
10,
2008.
Surely,
if
there
had
been
an
intent
to
harass
the
Grievor,
it
is
likely
that
there
would
have
been
further
incidents
or
a
pattern
of
harassment
in
that
period.
However,
to
the
contrary,
on
February
1,
2008,
Susan
Steer
in
a
memorandum
to
the
Grievor
wrote
—
“I
am
pleased
to
advise
you
that
you
have
met
all
the
requirements
of
your
Performance
Development
Plan.
I
confirm
that
you
will
continue
in
your
position
of
TCA.”
On
August
11,
2008,
Susan
Steer
noted
that
she
spoke
to
the
Grievor
about
her
time
and
that
she
had
“used
all
vacation
floaters,
etc.”
and
suggested
she
bank
an
upcoming
flex
day
to
ensure
she
had
time
for
any
unexpected
events.
Ms.
Steer
noted
that
the
Grievor
“
—
was
fine
with
this
-
180-
conversation
and
said
she
would
look
into
it”.
This
latter
incident
is
relevant
because
it
demonstrates
Ms.
Steer’s
practice
concerning
Teranet’s
employees’
time
and
absences
as
part
of
management’s
responsibilities
and
the
acceptance
by
the
Grievor
of
management’s
phone
call
when
absent.
There
is
no
allegation
of
harassment
about
the
August
11,
2008
call.
The
most
significant
allegation
of
harassment
concerns
two
phone
calls
made
to
the
Grievor
on
September
10,
2008,
by
Susan
Steer,
both
of
which
were
unanswered,
at
a
time
when
the
Grievor
was
concerned
about
her
father
in
law’s
illness.
On
that
day,
the
Grievor
left
a
message
for
Cheryl
Bryant
which
was
recorded.
That
message
is
as
follows:
“Hi
Cheryl.
It’s
Dorota
calling.
It’s
5:50
on
Wednesday
morning.
Just
wanted
to
let
you
know
that
I
am
dealing
with
some
personal
matter
here
today,
and
I
won’t
be
—
unfortunately
I
won’t
be
able
to
come
in.
If
you
want
to
get
a
hold
of
me
you
can
call
me
at
xxx
xxx
xxxx
-
that
is
my
cell
phone
number.
Thank
you
so
much.
Bye.”
Particulars
of
her
harassment
allegations
state
that:
“On
Wednesday,
September
10,
2008,
the
Grievor
was
absent
from
the
workplace
due
to
a
family
emergency.
She
learned
early
that
morning
that
her
father-in-law
was
ill.
At
approximately
5:40
a.m.
the
Grievor
left
a
message
for
Ms.
Bryant
advising
of
the
family
emergency,
and
that
she
would
not
be
-
181
-
able
to
attend
work.
The
Grievor
also
left
her
cell
phone
number,
which
is
a
habit
when
leaving
messages
on
voicemail.
At
9:20
a.m.
the
Grievor
received
a
message
from
Ms.
Steer
advising
the
Grievor
to
call
her
back.
The
Grievor
was
pre
occupied
with
the
family
emergency,
and
was
not
able
to
call
Ms.
Steer
back
at
that
time.
At
approximately
1:30
p.m.,
Ms.
Steer’s
phone
number
appeared
on
the
Grievor’s
cell
phone
gain,
but
no
message
was
left.
The
Grievor
found
the
phone
calls
very
upsetting
given
that
she
had
advised
that
she
was
dealing
with
a
family
emergency
that
day,
and
was
not
in
a
position
to
discuss
the
details
of
the
emergency
with
Ms.
Steer.
The
Grievor
found
the
calls
inappropriate
and
harassing,
on
a
day
where
she
was
dealing
with
stressful
issues.”
The
Grievor
filed
notes
that
she
had
made
“regarding
Susan’s
behavior”.
She
testified
they
were
made
contemporaneously
with
the
events
to
which
she
refers.
The
note
from
the
September
10,
2008,
incident
is
similar
to
her
allegations.
She
wrote
that
she
left
a
voice
mail
stating
she
would
not
be
coming
in
as
she
had
“an
emergency
situation
to
deal
with
in
the
family”
and
that
she
had
left
her
cell
phone
number.
Also
in
her
note
she
stated
that
given
the
circumstances
she
was
dealing
with
she
found
the
calls
quite
upsetting
and
could
not
understand
the
purpose
of
the
calls
because
she
had
left
Cheryl
a
message
explaining
why
she
could
not
come
to
work.
-
182-
Although
the
Grievor
claims
that
she
advised
Cheryl
Bryant
that
she
could
not
attend
work,
contrary
to
her
written
statement
and
allegations,
the
Grievor
did
not
advise
Ms.
Bryant
that
there
was
a
“family
emergency”,
rather
she
stated
she
was
“dealing
with
some
personal
matter”
and
further
stated
that
“If
you
want
to
get
hold
of
me,
you
can
call
me
at
xxx
xxx
xxxx”,
which
is
her
cell
phone
number.
Thus,
not
only
did
the
Grievor
not
provide
the
reason
for
her
absence
as
alleged,
she
also
invited
a
call.
The
basis
or
foundation
for
her
claim
of
harassment
that
she
advised
Teranet
that
she
was
experiencing
a
family
emergency
is
not
substantiated.
Moreover,
she
invited
a
phone
call.
There
is
no
basis
as
she
claims
for
Susan
Steer
knowing
she
was
upset
by
a
family
emergency.
I
further
determine
that
two
unanswered
telephone
calls
do
not
constitute
harassment.
Susan
Steer
was
not
aware
the
Grievor
was
involved
with
a
family
emergency
or
dealing
with
stressful
issues
and
based
on
the
Grievor’s
invitation
to
call
proceeded
in
accordance
with
her
practice
as
she
had
in
the
past
(which
is
corroborated
by
her
August
11,
2008
call
and
its
acceptance
by
the
Grievor)
to
contact
the
Grievor
to
discuss
whether
she
would
be
paid
for
her
absence.
Ms.
Steer
was
not
in
the
office
on
September
11,
2008,
when
the
Grievor
returned,
but
was
in
on
September
-
183
-
12,
2008,
and
did
not
speak
to
the
Grievor.
I
accept
Ms.
Steer’s
evidence
that
she
was
engaged
with
other
matters
that
day
and
therefore,
did
not
speak
to
the
Grievor.
Not
speaking
to
her
is
not
harassment,
as
the
Grievor
alleges.The
Grievor
was
asked
to
attend
at
Ms.
Steer’s
office
on
September
15,
2008.
Both
the
Grievor’s
notes
and
Ms.
Steer’s
notes
indicate
that
the
conversation
in
the
office
began
with
Ms.
Steer
informing
the
Grievor
that
she
did
not
have
enough
hours
in
her
time
sheet
to
be
paid
for
the
entire
day
of
her
absence
on
September
10,
2008.
The
written
evidence
of
both
participants
corroborates
that
Ms.
Steer
attempted
to
contact
the
Grievor
to
deal
with
payment
for
her
absence,
in
accordance
with
her
practice,
which
is
corroborated
by
the
call
she
had
made
to
the
Grievor
on
August
11,
2008,
and
was
not
made
with
any
intent
to
harass
the
Grievor.
At
the
point,
as
reflected
in
Ms.
Steer’s
notes,
when
she
concluded
informing
the
Grievor
that
she
did
not
have
enough
hours
to
pay
for
her
absence,
Ms.
Steer
had
ho
knowledge
the
Grievor
was
involved
in
a
family
emergency.
It
was
the
Grievor
who
raised
the
issue
of
a
family
emergency.
According
to
the
Grievor’s
notes,
she
told
Ms.
Steer
that
she
had
left
a
-
184
-
voice
message
stating
that
she
had
to
deal
with
an
unexpected
family
emergency
(which
was
not
the
case)
and
that
Ms.
Steer’s
unanswered
phone
calls
upset
her
a
lot,
that
she
did
not
want
to
be
bothered
with
phone
calls
and
that
Ms.
Steer
was
trying
to
chase
her
down.
The
Grievor
had
earlier
mentioned
to
her
co-workers
that
she
had
been
upset
by
the
phone
calls
and
was
“shocked”
that
Susan
Steer
had
come
to
her
desk
to
get
her
after
emailing
her.
In
all
these
circumstances,
I
prefer
the
evidence
of
Ms.
Steer
to
the
Grievor.
Certainly,
not
knowing
about
the
Grievor’s
family
emergency
and
being
aware
of
the
invitation
to
call
on
September
O,
I
accept
that
Susan
Steer
was
surprised
by
the
Grievor’s
accusations.
I
accept
Ms.
Steer’s
evidence
that
she
was
not
angry
and
did
not
speak
to
the
Grievor
in
an
aggressive
or
intimidating
tone.
Ms.
Steer’s
contemporaneous
notes
state
she
told
the
Grievor
that
she
was
not
being
accusing
or
aggressive
and
asked
her
“why
she
was
being
so
defensive
and
reacting
so
strongly
to
the
point
of
what
may
be
described
as
paranoia”.
In
context,
there
was
no
doubt
a
difficult
conversation,
but
it
was
not
harassment.
The
Grievor’s
comments
to
Ms.
Steer
were
based
on
her
wrongful
impression
that
Ms.
Steer
was
aware
she
was
involved
with
a
family
emergency
and
should
not
-
185-
have
called
her.
The
Grievor
was
upset
going
into
the
meeting
and
surprised
Ms.
Steer
with
her
accusations
when
Ms.
Steer
knew
nothing
of
a
family
emergency.The
Grievor
who
was
mistakenly
upset
when
she
first
came
to
the
meeting,
reacted
when
Ms.
Steer,
who
knew
nothing
about
her
family
emergency,
suggested
she
was
being
defensive
and
reacting
strongly
to
the
point
of
paranoia.
It
was
the
Grievor
who,
either
mistakenly
or
wrongfully,
accused
Ms.
Steer
and
Ms.
Steer’s
remarks
were
in
response
to
the
mistaken
and
wrongful
accusations.
In
all
these
circumstances,
I
find
that
responding
in
the
way
Ms.
Steer
did
when
she
was
mistakenly
or
wrongfully
accused
was
reasonable
and
did
not
constitute
harassment.
In
all
respects,
I
prefer
Ms.
Steer’s
version
of
the
meeting.
Her
surprised
reaction
to
the
wrongful
or
unjust
accusations
was
within
the
realm
of
a
reasonable
response
given
the
sudden
and
unwarranted
attack
on
her
by
the
Grievor.
Ms.
Steer
was
provoked
by
the
Grievor’s
unjustifiable
accusations
however,
her
response
was
not
harassment.
-
186
-
The
Grievor
also
claims
that
the
termination
of
her
sick
benefits
constituted
harassment.
The
Grievor
claims
that
she
was
sick
and
was
merely
running
errands
for
her
husband
when
she
attended
the
Registry
Office
and
the
printing
company
and
when
she
conducted
an
open
house.
The
Grievor,
who
was
a
licensed
real
estate
agent,
also
admitted
that
only
licensed
real
estate
agents
could
conduct
an
open
house.
When
the
Grievor
was
cross-examined,
she
acknowledged
it
was
reasonable
for
Elgin
Farewell
to
conclude
she
was
engaged
in
the
real
estate
business
and
also
to
conclude
that
she
was
violating
the
disability
program
by
receiving
disability
benefits
while
working
elsewhere.
However,
the
Grievor
also
stated
that
Mr.
Farewell
was
aware
that
her
doctor
confirmed
that
she
was
on
stress
leave
and
he
could
have
contacted
her
doctor.
After
duly
considering
the
evidence
and
the
arguments
with
respect
to
the
termination
of
disability
benefits,
I
determine
that
the
Grievor
was
indeed
working
and
based
on
her
own
evidence
it
was
reasonable
for
Mr.
Farewell
to
conclude
that
she
was
working,
which
justified
terminating
her
benefits.
Further,
based
on
Dr.
Black’s
medical
opinion
in
which
he
wrote
that
he
was
aware
that
the
Grievor
held
a
real
estate
license
but
that
she
“did
not
have
to
stop
doing
real
estate
work”,
I
conclude
that
while
the
-
187-
Grievor
was
in
receipt
of
sick
benefits,
she
was
capable
of
working.
In
his
testimony,
Dr.
Black
confirmed
that
“the
Grievor
did
not
have
to
stop
doing
real
estate
work.
She
was
off
on
stress
leave
from
her
workplace.
In
my
opinion,
she
could
not
work
there.
She
was
not
unable
to
work,
she
was
on
stress
leave
from
that
particular
place.”
He
also
confirmed
in
his
testimony
“that
the
Grievor
did
not
have
to
stop
working
as
a
mortgage
broker”.
He
also
testified
referring
to
the
letters
he
wrote
at
the
Grievor’s
instance,
“that
it
was
stress
from
her
workplace
and
not
from
work”
and
that
the
Grievor’s
being
engaged
in
real
estate
work
does
not
change
my
opinion
about
the
leave
—
it
was
a
stress
leave
from
her
workplace
not
her
inability
to
work
in
general.The
Grievor
had
also
testified
that
when
she
met
with
Ms.
Steer
in
December
2007,
that
she
was
doing
real
estate
work
on
a
part
time
basis.
Various
advertisements
including
newspaper
ads
filed
indicate
that
the
Grievor
participated
in
her
husband’s
real
estate
business.
To
conduct
an
open
house,
it
was
neoessary
to
have
a
real
estate
license
as
the
Grievor
acknowledged,
that
she
had.
At
the
open
house,
when
questioned,
she
advised
the
investigator
of
other
listings.
She
had
been
trained
as
a
law
clerk
and
also
attended
the
Registry
Office
for
real
estate
purposes.
While
-
188-
she
maintains
that
she
was
not
paid
for
these
alleged
errands
on
behalf
of
her
husband,
she
and
her
family
would
undoubtedly
benefit
from
any
potentially
increased
income
the
husband
derived
from
her
efforts.
I
am
not
satisfied
with
the
Grievor’s
explanation
for
her
efforts
at
a
time
when
she
was
receiving
disability
benefits.
The
tasks
that
she
performed
were
work
and
were
contrary
to
obtaining
disability
benefits
while
claiming
that
she
was
too
ill
to
work.
I
find
that
in
all
the
circumstances
of
this
case,
it
was
reasonable
for
Mr.
Farewell
to
conclude,
as
the
Grievor
acknowledged,
that
she
was
working
as
a
real
estate
agent.
Moreover,
Dr.
Black’s
testimony
and
letters
confirms
that
the
Grievor
did
not
have
to
stop
doing
reasonable
work
and
it
is
reasonable
to
conclude
from
Dr.
Black’s
letters
and
testimony
that
the
Grievor
could
work
and
was
not
disabled
from
working
in
general.
The
termination
of
benefits
in
these
circumstances
was
both
justified
and
also
reasonable
and
was
not
harassment.
The
Grievor
asserts
that
Teranet
could
have
contacted
Dr.
Black
to
verify
her
illness,
Instead,
Susan
Steer
wrote
to
her
on
September
29,
2008,
and
specifically
told
her
that
Teranet
questioned
the
bona
fide
nature
of
her
current
absence
and
requested
a
meeting.
The
Grievor
responded
on
September
30,
2008,
that
her
doctor
advised
her
not
to
attend
work
until
-189-
further
notice
and
she
understood
the
term
“work”
to
include
any
meetings
with
management.
Ms.
Steer
emailed
the
Grievor
on
October
1,
2008,
saying
that
Teranet
believes
“you
are
able
to
work
and
that
you
should
be
at
the
office
doing
your
job”
and
“meeting
is
an
opportunity
for
you
to
explain
why
it
is
you
are
not
at
work
in
light
of
why
we
think
you
are
able
to
be
there”
and
also
advised
the
Grievor
she
was
entitled
to
have
representation.
On
October
2,
2008,
the
Grievor
responded
by
email
that
she
was
following
her
doctor’s
advice
to
stay
off
work.
While
the
Union
argued
that
Teranet
should
have
contacted
the
Grievor’s
doctor
or
requested
another
medical
opinion
pursuant
to
the
collective
agreement,
I
am
satisfied
that
the
route
Teranet
chose
to
take,
by
requesting
a
meeting
with
the
Grievor
accompanied
by
a
Union
representative,
to
provide
the
Grievor
with
an
opportunity
to
explain
why
she
was
not
at
work
was
reasonable
in
the
circumstances.
In
order
to
directly
contact
the
Grievor’s
doctor
it
would
have
required
the
Grievor’s
written
consent
which
Teranét
might
have
obtained
at
a
meeting
had
the
Grievor
attended
and
explained
her
situation.
Also,
within
the
realm
of
labour
management
relations,
matters
are
often
resolved
between
parties
as
the
result
of
discussions.
When
the
Grievor
was
concerned
about
the
-
190-
declaration
under
the
Code
of
Conduct
in
December
of
2007,
she
asked
for
a
meeting
with
her
Union
representative.
When
the
Grievor,
on
September
15,
2008,
complained
to
Miles
Argue,
her
Union
representative
about
Susan
Steer’s
conduct
at
the
meeting,
Mr.
Argue
met
with
Susan
Steer
and,
it
appears,
according
to
Ms.
Steer’s
uncontradicted
evidence,
that
her
explanation
of
the
meeting
satisfied
him.
Thus,
Teranet
requesting
a
meeting
to
help
resolve
the
absentee
issues
was
not
out
of
line
or
unreasonable.
There
was
no
reason
for
Teranet
to
leap
to
the
expense
of
a
medical
examination
before
discussing
the
situation
with
the
Grievor
and
her
Union
representative.
A
medical
solution
pursuant
to
Article
2.3
was
still
possible
if
matters
were
not
resolved
at
the
meeting.
Accordingly,
to
the
extent
that
the
alleged
termination
of
the
disability
benefits
constituted
harassment,
I
further
determine
that
Teranet
made
reasonable
efforts
to
provide
the
Grievor
with
an
opportunity
to
explain
her
alleged
disability
and
Teranet
in
these
circumstances
did
not
intend
to
harass
the
Grievor
by
terminating
her
sick
benefits;
it
acted
reasonably
by
attempting
to
meet
with
the
Grievor
and
her
Union
representative.
The
failure
to
obtain
a
further
medical
examination,
until
the
parties
had
an
opportunity
to
meet
and
discuss
the
situation
before
moving
to
a
medical
examination,
was
reasonable
in
these
circumstances.
-
191
-
There
is
one
further
issue
related
to
the
alleged
harassment
and
that
concerns
the
allegation
that
Ms.
Steer
was
ill
motivated
towards
the
Grievor
because
her
husband
was
a
real
estate
competitor
of
the
Grievor’s
husband.
There
is
not
an
iota
of
evidence
to
support
that
allegation.
The
mere
fact
that
both
Ms.
Steer’s
husband
and
the
Grievor’s
husband
are
engaged
in
real
estate
is
not
sufficient
to
support
the
allegations
of
improperly
motivated
harassment.
That
allegation,
at
best,
is
speculative
as
the
Union
submitted
and
I
categorically
reject
the
Grievor’s
allegation
that
Ms.
Steer
was
improperly
motivated
against
the
Grievor
for
that
reason.Before
turning
to
the
medical
evidence,
it
is
necessary
to
comment
on
the
Grievor’s
allegations.
What
is
particularly
noticeable
is
the
large
gap
of
approximately
ten
months
between
Teranet’s
justified
Code
of
Conduct
meeting
in
December
2007
and
the
Grievor’s
allegations
derived
from
her
mistaken
belief
about
her
phone
call
to
Cheryl
Bryant
on
September
10,
2008.
During
most
of
that
period,
the
Grievor’s
performance
was
substandard
making
her
an
easy
target
if
there
was
any
intent
by
Susan
Steer
to
harass
her.
There
was
no
pattern
of
harassment
in
this
case.
The
-
192
-
Grievor’s
evidence,
in
my
view,
having
observed
and
listened
to
her
testimony
is
exaggerated.
The
word
shocking
appears
frequently
concerning
minor
incidents
such
as
the
phone
tapping
incident
in
2007.
Also,
both
minor
incidents
such
as
a
simple
mistake
and
also
stale
instances
where
no
grievances
were
filed
are
elevated
to
exaggerated
allegations
of
harassment.
When
the
Grievor
was
confronted
in
cross-examination
with
her
mistaken
phone
call
on
September
10,
2008,
when
she
clearly
did
not
advise
Teranet
that
there
was
a
family
emergency
and
also
invited
a
call,
she
persisted
in
maintaining
the
two
legitimate
but
unanswered
telephone
calls
constituted
harassment.
She
refused
to
withdraw
the
allegations
after
being
confronted
with
her
phone
message
inviting
a
call
and
not
providing
the
information
she
claimed
to
have
provided.
She
also
falsely
persisted
in
claiming
that
she
was
being
harassed
because
Susan
Steer’s
husband
was
in
the
real
estate
business,
but
produced
no
evidence
whatsoever
to
support
that
claim.Allegations
of
harassment
tarnish
a
person’s
reputation
and
become
more
serious
in
contained
work
places
where
people
must
work
together.
-
193-
Allegations
of
harassment
should
not
be
lightly
made.
The
Grievor’s
allegations,
particularly
her
mistaken
belief
and
her
persistent
pursuit
of
the
September
10th
phone
calls
as
harassment,
coupled
with
her
relentlessly
pursued
and
unsubstantiated
allegations
about
Ms.
Steer’s
motivation
because
of
her
husband’s
business
are
not
only
baseless
but
they
are
mischievous,
frivolous
vexatious
and
unwarranted.
The
complaint
about
allegations
of
harassment
do
not
fall
within
any
definition
whatsoever
of
harassment.
-
194
-
Medical
Evidence
However
the
finding
that
the
Grievor
was
not
harassed
does
not
end
the
matter,
because
the
interactions
between
the
Grievor
and
Ms.
Steer
may
have
subjectively
affected
her
health,
even
though
there
appears
to
be
no
objective
basis
for
her
claim.
That
requires
an
assessment
of
the
medical
evidence.
After
reviewing
that
evidence
and
bearing
in
mind
that
the
Union
and
the
Grievor
bear
the
onus
of
adducing
evidence
to
establish
on
the
balance
of
probabilities
that
the
Grievor’s
health
was
negatively
impacted
by
Ms.
Steer,
I
find
that
the
Union
and
the
Grievor
have
not
satisfied
that
onus.
It
is
with
some
regret
that
I
reject
the
evidence
of
Dr.
Black.
Dr.
Black
wrote
three
letters
on
behalf
of
the
Grievor,
and
only
one
was
presented
to
Teranet.
On
November
19,
2008,
Dr.
Black
wrote
that
“Dorota
expressed
symptoms
of
a
change
in
mood
secondary
to
work
stress
from
Teranet
and
was
advised
to
take
a
medical
leave
from
the
stressful
environment.”
He
also
stated
that
the
Grievor
“described
tension
headaches
secondary
to
Teranet”.
He
noted
that
she
held
a
real
estate
agent’s
license
and
unequivocally
stated
that
“Dorota
did
not
have
to
stop
doing
real
estate
-
195-
work”.
That
letter
apparently
did
not
satisfy
the
Grievor
because
she
had
the
doctor
change
the
letter.
Accordingly,
on
November
25,
2008,
he
made
an
additional
change
by
referring
to
the
Grievor’s
“medical
leave
from
the
stressful
environment
at
Teranet,
under
the
management
of
Susan
Steer”.
He
also
added
that
in
addition
to
requiring
treatment
for
tension
headaches,
she
also
required
treatment
for
“sleep”.
Apparently,
the
November
25,
2008,
letter
again
did
not
satisfy
the
Grievor
and
at
her
further
request,
Dr.
Black
wrote
another
letter
which
was
the
only
one
sent
to
Teranet,
which
added
that
in
addition
to
a
real
estate
license,
she
held
a
mortgage
broker’s
license
and
did
not
have
to
stop
doing
mortgage
broker
activities.
He
also
added
‘anxiety’
to
the
list
of
ailments
for
which
she
required
treatment.
In
summary,
Dr.
Black
agreed
that
the
Grievor
could
do
both
real
estate
work
and
mortgage
broker
activities
in
the
period
immediately
leading
up
to
and
following
her
termination.
He
also
confirmed
in
his
testimony
that
she
could
do
real
estate
and
mortgage
broker
work
and
was
only.required
to
stop
work
at
Teranet
because
it
was
a
stressful
workplace
and
that
she
could
do
any
job
for
which
she
was
qualified
except
work
at
Teranet.
Accordingly,
I
determine
she
was
not
fully
disabled
during
that
period..
-
196
-
On
September
10,
2010,
approximately
two
years
after
his
initial
letters,
Dr.
Black
wrote
a
fourth
letter
which
differed
from
the
others
and
appears
to
have
been
intended
to
be
used
in
these
proceedings
to
coincide
with
the
Grievor’s
testimony.
That
letter
is
as
follows;
“I
saw
Dorota
on
September
16,
2010
regarding
her
headaches,
stress,
and
sleeping
disorder
related
to
her
employer
Teranet.
Dorota
to
date,
has
not
fully
recovered
and
requires
ongoing
treatment
and
medication
when
necessary.
I
have
advised
Dorota
from
the
beginning
of
her
diagnosis
in
2008
to
pursue
activities
that
can
help
make
her
feel
at
ease.
Getting
out
of
the
house,
spending
time
with
her
twin
children,
helping
her
husband
with
his
real
estate
activities
such
as
attending
open
houses,
were
all
positive
activities
that
could
help
put
her
mind
at
ease
and
assist
in
her
recovery.
It
was
not
until
the
end
of
February
2009
that
I
consented
to
her
bring
able
to
seek
alternative
work
to
that
of
Teranet,
but
that
the
same
must
be
conducted
in
a
limited
capacity
so
as
to
avoid
stress.
I
continue
to
emphasize
that
employment
Dorota
is
to
attempt,
must
remain
in
a
capacity
in
accordance
with
her
medical
condition
and
medical
treatment.
I
also
encourage
her
to
continue
doing
activities
that
may
assist
her
i&putting
her
mind
at
ease.”
In
his
testimony
and
in
two
letters
in
2008,
Dr.
Black
unequivocally
stated
that
the
Grievor
did
not
have
to
stop
doing
real
estate
work
and
then
-
197
-
in
a
third
letter,
added
that
she
did
not
have
to
stop
doing
mortgage
broker
activities.
His
2010
letter
states
that
at
the
beginning
of
her
diagnosis
in
2008,
he
advised
the
Grievor
that
she
could
pursue
certain
“activities”
which
coincides
with
the
Grievor’s
evidence
describing
her
activities
as
errands
but
not
work.
On
September
2010,
Dr.
Black
stated
that
it
was
not
until
the
end
of
February
2009,
(which
is
when
the
Grievor
stopped
receiving
El
payments)
that
he
consented
to
the
Grievor
seeking
alternative
work
to
Teranet
which
is
to
be
conducted
in
a
limited
way
to
avoid
stress.
That
statement
contradicts
both
his
testimony
and
his
letters
of
2008
in
which
he
unequivocally
stated
that
the
Grievor
“did
not
have
to
stop
doing
real
estate
work”
or
work
as
a
real
estate
broker
and
mortgage
broker.
I
note
that
in
the
2008
letters
Dr.
Black
noted
that
the
Grievor
held
real
estate
and
mortgage
broker
licenses,
but
no
mention
is
made
of
those
licenses
in
the
2010
letter.
Also,
in
the
2010
letter,
Dr.
Black
stated
that
he
advised
the
Grievor
from
the
beginning
of
her
diagnosis
in
2008,
to
pursue
activities
that
made
her
feel
at
ease
and
then
enumerated
those
activities
which
included
helping
her
husband
with
his
real
estate
activities,
such
as
attending
open
house.
Given
the
reference
to
the
Grievor’s
real
estate
and
mortgage
broker
licenses
in
the
2008
letters,
coupled
with
his
written
comments
that
the
Grievor
did
not
have
to
stop
doing
real
estate
work
and
-
198-
mortgage
broker
activities,
and
given
the
omission
of
any
reference
to
the
Grievor’s
real
estate
license
or
mortgage
broker
license
in
the
2010
letter,
I
find
that
the
nature
and
kind
of
work
or
activities
referred
to
in
2008
are
inconsistent
with
the
nature
and
kind
of
work
referred
to
in
the
2010
letter.
The
reasonable
inference
from
the
2008
letters
is
that
Dr.
Black
consented
to
the
Grievor
doing
work
in
2008,
which
is
contrary
to
his
letter
in
2010,
which
stated
that
it
was
not
until
the
end
of
February
2009,
that
he
consented
to
the
Grievor
seeking
alternative
work.
At
best,
Dr.
Black’s
letters
are
inconsistent.
Why
mention
her
real
estate
and
mortgage
broker
licenses
in
the
2008
letters
if
it
was
not
intended
the
Grievor
perform
that
work.
The
performance
of
limited
helpful
activities
indicated
in
2010
surely
did
not
require
a
real
estate
or
a
mortgage
broker
license
which
were
explicitly
referred
to
in
Dr.
Black’s
2008
letters
and
which
permitted
her
to
work
as
distinct
from
performing
“positive
activities”.
Also,
in
2010,
Dr.
Black
maintained
that
after
February
2009,
the
Grievor
could
work
in
a
limited
capacity
so
as
to
avoid
stress,
however
in
2008,
notwithstanding
he
both
wrote
and
testified
that
the
Grievor
should
take
a
medical
leave
from
the
stressful
environment
at
Teranet,
he
imposed
-
199-
no
such
limitations
of
the
kind
he
imposed
in
2010
when
he
permitted
her
to
pursue
real
estate
or
mortgage
broker
work
or
activities.
When
cross-examined,
Dr.
Black
acknowledged
that
he
takes
his
patients,
including
the
Grievor,
at
their
word.
Counsel
for
Teranet
quite
properly
argued
that
Dr.
Black’s
testimony
was
unreliable
because
he
had
exceeded
his
medical
role
and
became
an
advocate
for
the
Grievor.
I
not
only
agree
with
Counsel,
but
in
my
view,
I
find
that
Dr.
Black’s
conduct,
as
revealed
by
both
his
letters
and
his
testimony,
went
beyond
mere
advocacy.The
next
incident
of
medical
consequences
concerns
the
Grievor’s
refusal
to
attend
a
meeting
with
Teranet
on
October
2,
2008,
or
at
a
further
meeting
after
Teranet
indicated
it
would
be
flexible
with
the
meeting
date.
Teranet
had
requested
a
meeting
because
the
surveillance
tapes
indicated
the
Grievor
was
working
while
she
was
receiving
disability
benefits.
Teranet
was
quite
clear
in
the
October
1,
2008
email,
that
the
purpose
of
the
meeting
was
to
provide
the
Grievor
with
an
opportunity
for
her
“to
explain
why
it
is
you
are
not
at
work
in
light
of
why
we
think
you
are
able
to
be
here”.
The
Grievor
testified
that
she
did
not
know
what
would
be
-200-
discussed
although
the
email
had
made
it
quite
clear.
She
testified
she
was
not
physically
and
emotionally
ready
to
deal
with
the
situation
and,
by
not
attending,
was
following
her
doctor’s
advice
and
she
would
have
gone
to
the
meeting
“if
the
doctor
said
it
was
alright,
since
I
trusted
his
medical
advice”.When
cross-examined,
the
Grievor
testified
that
after
she
was
asked
to
attend
the
meeting
and
refused
she
told
the
doctor
about
the
situation
and
also
told
him
“she
did
not
want
to
go
to
the
meeting”.
Dr.
Black
testified
that
he
saw
the
Grievor
on
October
3,
2008,
after
she
refused
to
attend
the
meeting;
his
chart
on
that
date
stated
no
work
activities
and
also
that
he
had
recommended
no
work
activities
including
meetings.
The
written
documents
are
different
from
the
Grievor’s
testimony.
In
a
letter
to
Susan
Steer,
dated
September
30,
2008,
disagreeing
with
Teranet’s
decision
to
terminate
her
sick
leave
benefits,
the
Grievor
referred
to
seeing
the
doctor
on
September
17
and
September
25,
2008,
and
stated
that
at
each
appointment
the
doctor
told
her
to
stay
off
work.
There
is
no
mention
on
those
dates
in
Dr.
Black’s
chart
that
he
advised
her
not
to
attend
any
“meetings”.
-201-
The
Grievor’s
email
to
Susan
Steer
on
October
2,
2008,
stated
that
her
doctor
had
advised
her
to
stay
off
work
and
that
“I
understand
the
term
‘work’
to
include
any
meetings
with
management”.
On
October
2,
2008,
Susan
Steer
replied
requesting
the
Grievor
to
attend
for
the
purpose
indicated
above
and
the
Grievor
responded
on
October
2,
2008,
that
she
was
not
able
to
attend
this
meeting
as
1
am
following
my
doctor’s
advice
to
stay
off
work”.
Dr.
Black
had
not,
as
of
October
2,
2008,
advised
the
Grievor
not
to
attend
any
meetings.
The
Grievor
testified
that
she
did
not
meet
with
the
Company
because
she
was
not
physically
or
emotionally
ready
to
deal
with
the
situation
and
also
she
was
extremely
overwhelmed
and
followed
her
doctor’s
advice.
Notwithstanding
her
physical
and
emotional
state,
the
Grievor
had
on
September
27,
2008,
arranged
and
conducted
an
open
house
where
she
met
with
prospective
clients.
Dr.
Black’s
2008
letters
indicated,
without
any
reasonable
inquiry
that
Susan
Steer
was
the
source
of
her
stress,
however,
the
Grievor
could
have
requested
that
SusanSteer
be
absent
from
any
meeting
she
attended.
-
202
-
The
Grievor’s
testimony
is
also
contradictory
since
she
testified
that
she
would
have
gone
to
the
October
2,
2008,
meeting
“if
the
doctor
said
it
was
alright”.
Her
willingness
to
attend,
but
for
her
doctor’s
advice,
is
contradicted
by
her
cross-examination
when
she
testified
that
after
she
was
asked
to
attend
the
meeting,
she
told
her
doctor
that
“she
did
not
want
to
go
to
the
meeting”.
Chronologically,
that
would
have
been
at
the
October
3,
2008,
appointment
with
her
doctor.
It
is
readily
apparent
that
on
September
30,
2008
and
October
2,
2008,
when
the
Grievor
declined
to
attend
the
meeting
that
Dr.
Black
had
not
advised
her
not
to
attend
a
meeting,
but
had
simply
told
her
to
stay
off
work.
That
is
confirmed
by
the
Grievor’s
testimony
and
particularly
by
her
letter
of
September
2gthi
where
she
states
that
her
doctor
told
her
not
to
attend
work
but
then
qualified
the
term
work
by
stating
that
she
understood
the
term
work
to
include
any
meetings
with
management.
It
is
reasonable
to
infer
from
the
Grievor’s
testimony
and
the
written
documents
that
on
September
30
and
October
2,
2008,
when
the
Grievor
refused
to
attend
the
meetings
because
of
Dr.
Black’s
advice
that
Dr.
Black
had
not
advised
she
not
attend
any
meetings.
I
find
the
Grievor
did
not
want
to
go
to
the
meetings
and
wrongfully
advised
Teranet
that
she
would
not
attend
based
-
203
-
on
her
doctor’s
advice
about
not
attending
meetings,
which
she
did
not
obtain
until
October
3rd,
after
she
had
so
advised
Teranet.
Dr.
Black’s
clinical
notes
indicate
that
he
at
no
time
prior
to
October
3,
2008,
advised
the
Grievor
not
to
attend
any
meetings.
His
clinical
note
of
September
17,
2008,
states
“suggesting
medical
leave
from
work”
while
his
clinical
note
of
September
25,
2008,
states
“not
ready
to
RTW
[return
to
work]”.
His
notes
of
October
3,
2008,
state
“no
work
activities
at
all
including
meetings”
and
correspond
precisely
with
the
Grievor’s
testimony
that
when
she
saw
Dr.
Black,
she
told
him
about
the
situation
and
that
“...
She
did
not
want
to
go
to
the
meetings”.
The
Grievor’s
testimony
also
corresponds
with
Dr.
Black’s
charts,
and
with
the
note
he
sent
to
Teranet
on
October
3,
2008.
That
note
departed
from
his
earlier
notes
which
stated
the
Grievor
was
to
be
off
‘work’
by
expanding
the
concept
of
work
to
include
“work
activities”
which
presumably
implied
meetings.
This
is
yet
another
instance
of
Dr.
Black
readily
responding
to
the
Grievor.
When
cross-examined,
Dr.
Black
stated
that
“he
takes
his
patients,
including
the
Grievor,
at
their
word”.
Dr.
Black
was
the
treating
doctor
and
I
find
that
his
assessment
of
the
Grievor
was
based
entirely
on
taking
her
-204-
word.
I
further
find
that
the
Grievor’s
testimony
was
inconsistent,
unreliable
and
exaggerated.
She
used
the
term
“shocked”
on
a
number
of
occasions
referring
to
her
reaction
to
the
various
incidents
regardless
of
the
scale
of
the
incident.
Dr.
Black
merely
accepted
her
view
of
the
situation
and
readily
reflected
those
views
in
his
assessment
of
her
both
in
the
notes
and
also
the
letters
he
wrote
on
her
behalf.
Dr.
Black’s
letters
also
implicated
Susan
Steer
in
creating
a
stressful
situation
notwithstanding
his
testimony
that
the
only
thing
he
knew
about
Susan
Steer
was
that
her
husband
worked
in
real
estate.
One
would
have
thought
that
before
implicating
Susan
Steer
as
a
source
of
stress
that
he
would
have
made
some
inquiries
about
Ms.
Steer’s
conduct
that
provoked
the
Grievor’s
stress.
I
find
that
Dr.
Black’s
conduct
lacked
that
quality
of
independence
that
one
usually
finds
from
someone
exercising
professional
judgment
and
I
am
reluctantly
in
agreement
with
Counsel
for
Teranet
that
Dr.
Black
shifted
from
a
medical
professional
to
patient’s
advocate
and
tailored
his
conduct
and
testimony
in
such
a
manner
that
his
medical
assessment
and
testimony
concerning
the
Grievor
is
not
credible.
I
find
that
the
medical
evidence
does
not
support
the
claims
made
by
the
Grievor
both
as
to
her
fitness
for
work
and
her
post
discharge
medical
condition.
The
medical
evidence
for
the
reasons
stated
is
lacking
in
professional
judgement
and
independence
and
is
unreliable.
-
205
-
I
further
determine
that
the
Grievor
was
fully
capable
of
meeting
with
Teranet
on
the
dates
scheduled
or
on
any
other
date
that
Teranet
was
prepared
to
schedule.
Contrary
to
her
evidence,
the
Grievor
both
knew
what
the
meeting
was
about
and
also
that
she
was
entitled
to
Union
representation.
The
meeting
was
critical
and
would
have
provided
her
with
a
full
and
complete
opportunity
to
explain
why
she
was
working
while
in
receipt
of
sick
leave
benefits,
but
she
chose
not
to
attend,
which
justifiably
resulted
in
a
reasonable
inference
by
Teranet
that
she
did
not
wish
to
explain
her
situation
and
why
it
was
she
appeared
to
be
working.
Her
failure
to
meet
and
explain
the
allegations
contained
in
the
emails
to
her,
that
she
was
capable
of
working
was
critical,
and,
accordingly,
Teranet
was
justified
in
considering
her
refusal
to
meet
and
to
respond
to
their
inquiries
as
an
important
factor
to
be
considered
when
terminating
her.
Teranet
was
entitled
to
draw
an
inference
that
the
Grievor
was
working
and
that
her
refusal
to
meet
was
because
she
was
hiding
something
and
did
not
want
to
discuss
her
work
activities
while
claiming
disability
benefits.
By
failing
to
meet
with
Teranet
the
Grievor
pre-empted
any
opportunity
for
Teranet
to
make
reasonable
inquiries
about
her
situation
and
for
her
to
provide
a
reasonable
explanation
had
there
been
one.
-
206
-
I
conclude
that
both
the
Grievor’s
evidence
and
the
medical
evidence
do
not
support
the
Grievor’s
absence
from
work
or
her
claim
for
disability
benefits.
The
Grievor
was
fully
capable
of
working
and
chose
not
to
attend
at
work
or
to
attend
at
Teranet
premises
to
explain
her
absence.
I
further
determine
that
whether
one
applies
an
objective
standard
or
a
subjective
standard,
her
absenting
herself
from
work
and
refusing
to
meet
with
Teranet
was
not
justified.
-
207
-
Compensation
—
Mitigation
And
finally,
even
assuming
Teranet
was
not
justified
in
terminating
the
Grievor,
I
determine
both
that
she
had
income
from
employment
and
that
she
failed
in
other
respects
to
take
reasonable
steps
to
mitigate
her
loss.
As
I
indicated
earlier,
various
documented
real
estate
and
mortgage
broker
advertisements
were
filed
showing
the
Grievor
in
the
real
estate
business
with
her
husband.
The
records
run
from
2005
to
2010.
There
are
advertisements
from
May
23,
2007
and
November
14,
2007,
the
latter
date
being
just
prior
to
the
meeting
in
December
2007
with
Susan
Steer
to
review
the
Code
of
Conduct,
which
the
Grievor
found
objectionable.
There
are
other
advertisements
to
the
same
effect
in
2008
and
in
2009,
including
an
undated
advertisement
which
pictures
the
Grievor
and
her
husband
above
a
website
listing,
which
refers
to
““Team
real
estate”,
and
which
contains
statistics
for
January,
February
and
March
2009.
Another
advertisement
contains
a
picture
of
the
Grievor
and
her
husband
and
shows
them
receiving
an
award
of
excellence
for
2008
and
2009,
the
Directors
Platinum
Award
for
2007
and
2009
and
what
appears
to
be
the
President’s
Gold
Award
for
a
number
of
years
including
2008
and
2010.
-
208
-
The
Grievor,
reluctantly,
and
after
several
production
orders
were
made,
filed
some
income
tax
returns.
Her
June
9,
2008
filings
include
an
addition
to
her
employment
income
of
business
income
of
$15,750.56,
which
falls
under
the
heading
of
self-employment.
Her
June
4,
2009
filing
shows
her
total
income
for
2008
as
$38,531.00,
and
a
loss
of
$7,092.00
for
business
income
which
again
falls
under
self-employment
income.
Her
income
for
2010
shows
her
total
income
as
$62,533.00
and
her
self-
employed
business
income
of
$40,993.95.
The
Grievor
testified
that
she
did
not
work
after
her
termination
but
with
the
exception
of
certain
small
amounts
to
which
she
admits,
claimed
that
she
did
no
work
and
her
income
was
the
result
of
permissible
income
splitting
between
husband
and
wife
under
the
Income
Tax
Act.
In
effect,
she
maintains
that
income
attributed
to
her
was
earned
by
her
husband
only
and
credited
to
her.
However,
to
the
extent
that
her
husband
diverted
income
to
her,
he
would
have
had
to
declare
any
diverted
deduction
he
made
as
being
reasonable
pursuant
to
Section
67
of
the
Rules
Relating
to
Computation
of
Income
which
provides
as
follows:
“In
computing
income
no
deduction
shall
be
made
in
respect
of
an
outlay
or
expense
in
respect
of
which
any
amount
is
otherwise
deductible
under
this
Act,
except
to
the
extent
that
the
outlay
or
-209-
expense
was
reasonable
in
the
circumstances.”
[emphasis
added]
In
addition,
the
Grievor’s
husband
could
not
have
deducted
the
amount
paid
to
the
Grievor
from
his
income
tax
unless
it
was
an
outlay
or
expense
for
the
purpose
of
gaining
or
producing
income
from
the
business,
because
of
Rule
18(1)
under
the
heading
of
Deductions
pursuant
to
the
Income
Tax
Actwhich
isasfollows:“In
computing
the
income
of
a
taxpayer
from
a
business
or
property
no
deduction
shall
be
made
in
respect
of
an
outlay
or
expense
except
to
the
extent
that
it
was
made
or
incurred
by
the
taxpayer
for
the
purpose
of
gaining
or
producing
income
from
the
business
or
property.”
In
short,
if
the
Grievor
did
not
work
or
do
anything
deserving
of
the
income
declared
on
her
income
tax,
she
may
be
a
party
to
income
tax
evasion.
To
be
credited
with
income,
while
doing
no
work
is
not
an
outlay
or
expense
that
is
reasonable,
nor
is
it
an
outlay
or
expense
incurred
for
the
purpose
of
gaining
or
producing
income.
Alternatively,
if
the
declared
income
was
reasonable
it
would
offset
any
loss
that
she
claims.
Also,
the
Grievor
filed
records
headed
Employment
Insurance
Report
Record
and
Attestation
for
the
following
periods:
November
23,
2008
to
-210-
November
29,
2008;
December
21,
2008
to
December
27,
2008;
February
1,
2009
to
February
7,
2009;
February
8,
2009
to
February
14,
2009.
All
of
these
reports
have
a
paragraph
in
which
the
Grievor
was
required
to
indicate
the
reasons
for
not
working
and
in
each
set
of
reports
the
reason
given
was
because
of
“illness
/
injury”.
She
was
also
asked
if
she
received
any
earnings
for
work
for
which
she
would
be
paid
later,
unpaid
work
or
self-employment.
In
each
case,
the
Grievor
responded
that
she
did
not
receive
any
such
earnings.
I
note
that
for
the
period
November
23,
2008
to
November
29,
2008,
while
the
Grievor
declared
her
reason
for
not
working
was
“illness
/
injury”,
Dr.
Black
had
stated
that
she
did
“not
have
to
stop
doing
real
estate
broker
and
mortgage
broker
activities”.
Thus,
her
attestation
that
the
reasons
for
not
working
were
because
of
illness
or
injury
was
contrary
to
Dr.
Black’s
letters
for
that
period.
Also,
the
Employment
Insurance
form
refers
to
earnings
from
“unpaid
work
or
self-employment”.
Her
Income
Tax
form
return
filed
on
June
4,
2009,
presumably
for
2008,
shows
a
business
income
loss
of
$7,092.00
under
the
heading
self-employment,
It
is
clear
that
a
portion
of
the
income
was
for
the
period
January
1,
2008
until
October
9,
2008,
when
she
was
employed
by
Teranet.
Assuming
she
did
not
work
in
real
estate
while
at
-211-
Teranet,
as
she
claims
the
$7,092.00
business
loss,
which
she
would
have
incurred
to
gain
income,
would
have
resulted
after
she
left
Teranet
and
within
the
period
October
10,
2008
to
December
31,
2008.
It
is
reasonable
to
infer
that
while
she
told
the
Employment
Insurance
Commission
that
she
could
not
work
and
was
not
earning
any
income,
she
was
engaged
in
some
form
of
business
for
which
she
claimed
a
deduction.
The
Grievor
also
filed
an
Income
Tax
return
for
2009,
on
June
1,
2010.
That
return
would
have
included
the
period
January
1,
2009
until
February
13,
2009
when
the
Grievor
again
advised
the
Employment
Insurance
Commission
that
she
could
not
work
and
was
not
in
receipt
of
any
earnings.
Her
Income
Tax
return
shows
total
income
of
$62,533.00
of
which
$40,
993.95
was
from
self-employed
business
income.
While
there
is
no
exact
correlation,
it
is
reasonable
to
infer
that
the
Grievor
was
earning
income
from
self-employment
at
the
same
time
that
she
was
telling
the
Employment
Insurance
Commission
that
she
did
not
have
earnings
for
unpaid
work
and
was
incapable
of
working.
I
note
also
there
is
an
overlap
during
these
periods
with
the
advertising
documentation
produced
which
suggests
the
Grievor
was
engaged
in
real
estate.
-212-
And
finally,
there
is
a
notation
on
the
El
report
covering
the
period
from
February
1,
2009
to
February
14,
2009
which
says
“Doctor’s
note
—
saying
I’m
Q.”
and
then
a
claim
to
be
discharged.
Given
that
these
documents
emanated
from
the
Grievor,
it
is
reasonable
to
infer
that
the
Grievor’s
El
report
was
also
corroborated
by
Dr.
Black
in
a
similar
manner
to
Dr.
Black’s
letter
of
September
21,
2010,
in
which
he
stated,
contrary
to
his
testimony
and
earlier
2008
letters,
that
the
Grievor
could
engage
in
real
estate
and
mortgage
broker
activities,
and
it
was
not
until
the
end
of
February
2009
that
he
consented
to
her
being
able
to
seek
alternative
work
to
that
of
Teranet.
I
find
the
Grievor’s
evidence
as
to
her
loss
of
income
to
be
evasive
and
unsubstantiated.
Nor
am
I
satisfied
based
on
her
evidence
and
the
written
documentation
that
she
made
appropriate
efforts
to
mitigate
any
loss.
The
documents
suggest
periods
when
she
made
no
effort
to
mitigate
her
claimed
loss.
I
do
not
find
any
of
the
Grievor’s
evidence
to
be
credible
and
I
determine
that
the
Grievor
has
failed
to
satisfy
me,
that
she
suffered
any
financial
loss
as
a
result
of
her
termination.
Given
the
advertising
documentation
I
am
not
prepared
to
find
the
Grievor
did
not
work.
Alternatively,
if
she
did
not
work
her
evidence
about
income
splitting
-213-
appears
to
be
in
violation
of
the
Income
Tax
Act.
In
summary,
after
reviewing
the
totality
of
her
evidence,
I
do
not
find
her
testimony
sufficiently
credible
so
as
to
justify
a
claim
for
compensation.
-214-
Conclusion
Based
on
the
facts
as
outlined
above,
I
determine
that
there
has
been
no
violation
of
the
collective
agreement
by
Teranet,
and
the
Grievor
was
discharged
for
just
cause.
The
Grievor
was
discharged
because
of
the
failure
to
properly
perform
her
responsibilities,
her
conduct
during
her
absence,
her
failure
to
provide
appropriate
and
satisfactory
medical
documentation,
her
refusal
to
respond
to
Teranet’s
inquiries,
her
failure
to
meet
with
Teranet
and
her
refusal
to
work
when
she
was
able
to
do
so,
as
well
as
other
employment
concerns.
I
am
in
agreement
with
Teranet’s
submissions
that
the
Grievor’s
performance
responsibilities
and
performance
concerns,
in
context,
included
the
totality
of
her
conduct
at
Teranet
and
not
just
the
mechanical
title
work
that
she
performed.
Her
performance
included
the
substandard
quality
and
quantity
of
her
work
both
before
and
after
she
received
performance
training.
Included
in
her
performance
responsibilities
was
the
proper
use
of
computer
equipment.
However
she
abused
that
responsibility
by
engaging
in
real
estate
activity
which
she
knew
was
inappropriate.
Her
performance
as
an
employee
included
her
conduct
in
-215-
making
unwarranted
and
frivolous
accusations
against
a
supervisor.
Also,
the
Grievor’s
absence
from
work
and
claim
for
disability
benefits
when
she
was
perfectly
capable
of
working
were
not
legitimate.
Her
absence
from
work
was
not
justified
and
the
medical
evidence
as
I
have
indicated
lacked
credibility
and
did
not
support
her
being
disabled
and/or
not
attending
work.
Her
accusations
about
the
unanswered
telephone
calls
and
her
subsequent
decision
to
leave
work
cannot
withstand
objective
scrutiny;
there
is
no
basis
for
her
not
coming
to
work
based
on
her
evidence.
Moreover,
her
exaggerated
and
evasive
testimony
coupled
with
the
lack
of
credible
medical
evidence
cannot
withstand
either
objective
or
subjective
scrutiny
and
I
reject
her
evidence
as
the
basis
for
not
returning
to
work;
she
was
not
a
credible
witness.
The
Grievor
refused
to
attend
a
meeting
where
her
absence
might
have
been
explained,
when
she
was
able
to
do
so.
Had
she
legitimate
concerns
about
Susan
Steer,
she
could
have
agreed
to
a
meeting
and
requested
that
Susan
Steer
not
attend.
Notwithstanding
her
refusal
to
meet
with
Teranet
she
conducted
an
open
house
as
a
real
estate
agent
where
she
met
with
potential
clients.
I
determine
that
if
she
was
able
to
meet
with
people
at
an
open
house,
she
was
capable
of
meeting
with
-216-
Teranet
as
requested,
but
refused
to
do
so.
The
Grievor,
if
she
was
concerned
about
harassment
by
Susan
Steer
could
also
have
requested
a
transfer
to
another
location,
which
she
did
not
do;
she
was
in
the
habit
of
emailing
Teranet
and
could
have
requested
a
transfer
by
email
but
did
not.
She
was
also
entitled
to
Union
representation
to
any
meeting
which
would
have
protected
her
interests
as
in
the
past.
Instead
she
performed
various
real
estate
related
tasks
including
conducting
an
open
house
which
based
on
all
the
evidence
confirms
that
she
was
capable
of
working
and
could
have
worked
at
Teranet.
I
further
find
that
the
Grievor’s
expectation
that
she
continue
to
be
paid
disability
benefits,
while
refusing
to
meet
with
Teranet
to
discuss
her
absence,
was
misplaced
and
in
all
these
circumstances
Teranet
was
legitimately
suspicious,
as
the
Grievor
conceded,
particularly
since
Teranet
had
surveillance
evidence
that
demonstrated
she
was
working.
By
refusing
to
attend
at
work
or
to
meet
with
Teranet
and
claiming
disability/sick
•
benefits,
notwithstanding
Dr.
Black’s
opinion
that
she
could
perform
other
work,
the
Grievor
foreclosed
all
possibility
of
resolving
the
situation
or
to
effectuate
any
reasonable
compromise
with
Teranet
including
transferring
to
another
location.
If
she
had
done
so,
she
might
have
returned
to
work
at
-217-
a
location
and
mitigated
any
loss
that
she
now
claims.
By
refusing
to
meet
with
Teranet
or
come
to
work,
the
Grievor
also
foreclosed
any
reasonable
action
by
Teranet
to
resolve
her
complaints
and
to
effectuate
any
reasonable
compromise
which
might
have
mitigated
any
loss
to
her.
Teranet
was
left
with
no
alternative
and
in
all
the
circumstances,
it
was
reasonable
to
terminate
her
employment.
I
find
that
the
totality
of
the
Grievor’s
conduct
and
her
performance
as
an
employee
and
lack
of
responsibility
as
an
employee,
prior
to
her
dismissal,
constituted
just
cause
for
dismissal.
I
further
find
that
she
has
not
satisfied
me
that
she
suffered
a
legitimate
loss
or
that
she
mitigated
any
financial
loss
that
she
claimed.
Also,
there
are
gaps
in
her
records
when
she
claims
to
have
been
looking
for
work.
For
all
these
reasons,
the
grievance
is
dismissed.DATED
at
Toronto
this
21st
day
of
March,
2014.
1
Owen
B.
Shime,
Q.C.