Appearances:

¶ 1      This is a complaint by Michael Ross, a former employee of Rosedale Transport Limited ("Rosedale"), dated June 28, 2002, alleging that he was on or about April 15, 2002, dismissed without just cause from his employment as a driver/associate.

¶ 2      The reasons for dismissal are set forth in a letter from the employer's Director of Safety, Brian Topping, dated April 15, 2002, in the following terms:

¶ 3      The relevant provisions of the Professional Driver's Guide referred to in the letter of dismissal provide as follows:

¶ 4      On September 10, 2002, the Minister of Labour referred the aforesaid complaint to me for adjudication under ss. 242(1) of the Canada Labour Code.

¶ 5      At the hearing before me, it was agreed that I had been properly appointed by the Minister of Labour and had jurisdiction to hear and determine the subject complaint. At the outset, counsel for the Complainant made it clear that Michael Ross was not seeking reinstatement to his employment, but was confining the relief sought to compensation for lost wages and benefits that would, but for the dismissal, have been paid by the Employer, as well as interest and costs.

¶ 6      Michael Ross was hired by the predecessor of Rosedale (Skyline Transport) on April 12, 1994, as a driver/associate. It is common ground between the parties that he was a good employee and had no prior discipline or adverse employment record.

¶ 7      On February 13, 2002, Ross sustained a low-back injury at work while moving a pallet loaded with ceramic tile from a truck. He was off from work for the next four days and returned on February 19, 2002. From and after that date, his duties were modified to accommodate his injury, and he was assigned clerical and administrative responsibilities at the Barrie Terminal operated by Rosedale.

¶ 8      The evidence discloses that he was paid Workplace Safety and Insurance Act benefits during the four days of his absence, and there is no issue that his injury was work-related and that his physical restrictions prevented him from carrying out the normal duties and responsibilities of his pre-injury position of driver/associate.

¶ 9      The evidence is uncontradicted that he performed clerical and administrative duties on and after February 19, 2002, until the termination of his employment on April 15, 2002.

¶ 10      For some period of time, Michael Ross and his family resided with his parents in the City of Barrie. His wife originally came from Powassan, a town located approximately 35 miles south of the City of North Bay. By reason of their financial circumstances, they decided that Ross' wife and his child would move to Powassan, where they could get assistance with child care from her family. They entered into an Agreement of Purchase and Sale on February 11, 2002, to purchase a house in Powassan. The transaction subsequently closed on April 12, 2002. For the purpose of the move to Powassan, Ross arranged with his immediate supervisor, Jim Foster, to take a one week's vacation. For reasons which were not fully explained, Foster had been critical of Ross since his injury on February 13, 2002. He thought he was maligning and deliberately not resuming his duties as a driver/associate, although their interpersonal relationship was mostly satisfactory. Ross shared with Foster that he was moving his family to Powassan during his holidays and, indeed, told him that the actual move would take place on Saturday, April 6, 2002.

¶ 11      Rosedale, on instructions from the Director of Safety, Brian Topping, engaged Inside Investigations Inc. to conduct a surreptitious video surveillance of Ross' activities at his parents' house on April 6, 2002. This was based on Foster's and Topping's suspicion that Ross' recovery was taking far too long and that he was exaggerating his injury. They hoped to obtain evidence to prove that they were right.

¶ 12      It would appear that in a Functional Abilities Form prepared by Ross' family physician on March 5, 2002, he opined that Ross' recovery would likely take 8-10 weeks, following which he would be able to resume his normal duties as a driver/associate. In a subsequent report dated March 20, 2002, the physician, however, questioned whether Ross would fully recover. To Topping this was curious. As he put it during the course of his direct examination, 'I could not understand why the expected recovery was getting longer and questionable.' When Ross announced the day before he was going on his vacation that he was moving his family, Topping became very suspicious and called in Inside Investigations Inc. and gave instructions for the video surveillance. He admitted that his purpose was to ascertain whether Ross was 'doing things he wasn't supposed to do'.

¶ 13      The results of the video surveillance, in Topping's opinion, demonstrated a clear case of fraud, for which dismissal was the only disciplinary response. During his cross-examination he admitted that he had made it clear to Ross that the results of the video surveillance had satisfied him that he should be charged with fraud. He was unable to explain, however, why he had not, instead of a surreptitious video surveillance, required Ross to undergo an independent medical examination or a further functional abilities assessment, both of which he agreed he could have requested. The only response he made is that 'maybe I should have cut him some slack before I ordered a videotape for a nine-year employee'.

¶ 14      On April 6, 2002, an investigator attended at 230 Livingstone Street West, in the City of Barrie, where Ross had been residing and recorded on video Ross lifting and carrying furniture from the house to a pick-up truck parked in the laneway.

¶ 15      At the hearing following submissions from both counsel, I ruled that the video surveillance tape was inadmissible for reasons which I will articulate shortly.

¶ 16      On April 8, 2002, Foster telephoned Ross and spoke to his wife. He demanded that Ross return to work on April 15, 2002, at 8:00 a.m. Ross thought that he was simply being asked to change his shift, as there had been several changes in his hours of work on and after February 19, 2002. When he arrived on April 8, 2002, he was called into the boardroom of the Barrie Terminal and confronted by both Foster and Topping. He was told about the video surveillance and that he had been observed lifting objects, including a large recliner-type chair and other items, in excess of what his physician had certified to be his restrictions in a series of reports to the Workplace Safety and Insurance Board. He was told in no uncertain terms that unless he resigned, his employment would be terminated, and he would be charged with fraud, and the Workplace Safety and Insurance Board advised of the results of the video surveillance.

¶ 17      Ross testified that he was frightened. He had never been dismissed from a prior employment, and he was at a loss to know how he would deal with his financial obligations to his family. It should be noted that he is 39 years old, has only Grade 11 education and supports a wife and a 5-year old child. His only employment as an adult has been in shipping and receiving and as a dockworker.

¶ 18      Ross immediately advised Topping that he was to undergo an C.T. scan with respect to his injury the very next day. Topping responded that in that event, Ross would be suspended until the results of the scan had been reviewed. Ross left without making an election as to the option that had been given to him by Topping. Subsequently, on reflection, he concluded that he had done nothing wrong. He then contacted Topping, told him that he would not resign, and asked him to please reconsider and keep him on as he wanted and needed his job. In his evidence before me, he testified that he was shocked at the treatment that he had received, and that this has had a lasting impact on his ability to trust others.  In the event, he was dismissed on April 15, 2002, and received the letter from Topping that I have previously outlined.

¶ 19      Ross, almost immediately, submitted a claim for benefits under The Workplace Safety and Insurance Act, and it is common ground that he received interim payments which totalled 95% of his salary between April 15, 2002, and June 10, 2002.

¶ 20      On May 27, 2002, in the context of a mediation of his Workplace Safety and Insurance Act claim, Rosedale offered Ross modified work in order to accommodate his restriction until he was able to return to his pre-injury position as a driver/associate. This position involved local deliveries in either a cub van or a straight truck and/or performing work on the dock using a forklift at salary rate equivalent to his pre-injury rate of $16.00 per hour on a shift that ran between 12 noon and 9:30 p.m.

¶ 21      Ross turned down this offer because it was beyond the restrictions permitted by his family physician and required movements that were outside his functional abilities.

¶ 22      On May 30, 2002, Rosedale however relented and offered him work with the exact same modified duties that he performed prior to April 15, 2002, with no loss in wages or other benefits, on a shift commencing at 3:00 p.m. and ending at 11:30 p.m. under the supervision of Foster.

¶ 23      Ross again declined this offer. He expressed the opinion that he could not trust Rosedale and that Foster would simply be looking for another opportunity to dismiss him. He made specific mention of the pre-dismissal threat uttered by Topping that he would be charged with fraud, and that his fraudulent conduct reported to the Workplace Safety and Insurance Board unless he resigned. He concluded that the antagonism exhibited towards him by both Foster and Topping had poisoned the work environment. He was not prepared to go back under the circumstances.

¶ 24      Following these events, the Workplace Safety and Insurance Board discontinued his benefits effective June 12, 2002. Ross has challenged this by way of appeal, but as of the date of the hearings, the issues remain unresolved.

¶ 25      The evidence indicates that Ross is still in considerable pain, particularly when driving. He has had a series of physiotherapy treatments and has consulted his family physician from time to time. It is his intention to upgrade his education and, hopefully, be able to secure better and more productive employment in the future. He is in the process of having his abilities assessed through financial assistance from a public advocacy group, as he does not have the means to do so privately. I digress for the moment to observe that I found one matter addressed by Ross during the course of his evidence to be somewhat troublesome. He stated that his family physician advised him not to accept any position or employment other than as a driver, as this would have a negative impact on his Workplace Safety Insurance benefits appeal. It appeared to me, and I so expressed this view during the course of the hearing, that his family physician had stepped outside the traditional role of medical advisor and, instead, entered the arena usually reserved for counsel as to what would or would not be of assistance in the appeal process. In any event, Ross acted upon the advice, although I find as a fact that the main reason why he didn't accept Rosedale's offer is because of Foster's and Topping's antagonism. In fairness to the medical practitioner, it should be stated that Ross did not tell him of the June 12, 2002 offer to reinstate him to his pre-injury position which required the performance of only clerical and administrative tasks.

¶ 26      In a letter dated September 30, 2002, his family physician opined that the stress arising from Ross' termination contributed to his inability to resolve the injury and had aggravated the process of rehabilitation. He was of the view that he continues to suffer from his low back injury and needs further rehabilitation before being able to return to meaningful employment.

The Video Surveillance

¶ 27      Counsel for Ross objected to the admissibility of the videotape of the surveillance on April 6, 2002, on the grounds that it constituted the collection of 'personal information' without Ross' consent, in breach of Section 7(1) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the "Act"). He contended that the collection of what he said was clearly personal information about Ross was not reasonable 'for purposes related to investigating a breach of an agreement' within the meaning of s. 7(1)(b) of the Act.

¶ 28      Section 3 stipulates that the purpose of the Act is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognized the right of privacy of individuals with respect to their personal information and the need of organizations to collect user-disclosed personal information for purposes that a reasonable person would consider appropriate in the circumstances.

¶ 29      It is common ground between the parties that the Act applies to Rosedale as it is a federal work, undertaking or business and interprovincial in nature, as the trucking operations extend beyond the borders of the Province of Ontario. It was also my view and remains that the video surveillance as captured on tape contains personal information, namely, the physical movements of an identifiable individual in carrying furniture from his house to a truck parked in his driveway.

¶ 30      Section 7(1) of the Act mandates that for the purposes of Clause 4.3 of Schedule 1 to the Act, despite the note that accompanies that Clause, an organization may collect personal information without the knowledge or consent of the individual only if (b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement. There can be no doubt that had Rosedale advised Ross that it intended to conduct the video surveillance and attempted to obtain his consent to videotape his activities, that this would likely have compromised the accuracy of the information.

¶ 31      The sole question which was the subject of the argument was whether or not the collection of the personal information was reasonable for purposes related to investigating a breach of his employment agreement. I note that there were no other objections advanced by counsel for Ross as to the admissibility of the video surveillance tape, other than the alleged breach of s. 7(1) of the Act.

¶ 32      Prior to the date the Act came into force, arbitrators considering the admissibility of video surveillance have generally embarked upon a balancing of an employee's right of privacy against the employer's right to protect its own interests and have in the process developed a number of tests.

¶ 33      This issue was also reviewed in Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4th) 111 (M. G. Picher). Examining the corresponding interests of the employee and the employer, the Arbitrator said the following at page 13 (Q.L.):

¶ 34      In my opinion, these general principles are also apposite in the interpretation of Section 7(1) of the Act given the purpose of the Act as prescribed in Section 3. In my view, the question that must be answered is whether or not it was reasonable for Rosedale to conduct the video surveillance without the knowledge and consent of Ross for purposes related to the investigation of an alleged breach of the employment agreement.

¶ 35      In the instant case, there was absolutely no evidence that Ross had ever been anything other than an honest employee. He had no disciplinary record. He had never submitted a false or fraudulent claim for insurance or other benefits. There were a number of other means that were available to the employer to test the true extent of Ross' restrictions and the bona fides of his recovery as of April 6, 2002. As late as March 21, 2002, Rosedale had in its possession, a statement from Ross' physician that he was only fit for clerical duties and that a prognosis for full recovery was questionable. If the employer really thought that Ross was malingering or pretending that he was not yet fully able to resume the duties of a driver/associate, it was open for Rosedale to ask for an independent medical examination a matter that was conceded by Topping. His failure to do so was left unexplained. This is a case, where an employer, without any evidence that the employee was malingering or had made misrepresentations or spread disinformation as to his physical abilities, orders a surreptitious video surveillance in the hope of trapping the unsuspecting employee during the course of moving furniture at his place of residence at a time and place that he had voluntarily disclosed to his employer. In this respect, the words of Arbitrator M. G. Picher in Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees, (supra), are very appropriate:

¶ 36      In my opinion, this is exactly what Topping attempted to do, namely, to cast an electronic web to see whether he could catch Ross while moving his family on April 6, 2002. In my view, the collection of this personal information in the form of the video surveillance tape was not reasonable for any purpose related to the investigation of a breach of the employment agreement. Its collection without the knowledge and consent of Ross violated Section 7(1)(b) of the Act. It was for these reasons that I ruled on the first day of the hearings that the videotape was not admissible in evidence.

¶ 37      On the second day of the hearing, on May 9, 2003, counsel for the employer announced that in view of my ruling as to the non-admissibility of the video surveillance tape, he was calling no evidence to support the employer's previously stated position that the dismissal of Ross had been for cause, as set out in the letter of April 15, 2002. The matter accordingly proceeded and was confined to an assessment of Ross' damages as reinstatement was not sought.

¶ 38      It is well settled law that where an employee has been wrongfully dismissed in breach of his contract of employment that he is entitled to be put in as good a position as he would have been had there been proper performance by the employer. See Red Deer College v. Michaels, [1976]  2 S.C.R. 324 (S.C.C.)

¶ 39      This, however, is subject to the qualification that the employer is not to be called upon to pay for avoidable losses which would result in an increase in the quantum of damages. This is what is understood by the expression that the employee has a duty to mitigate. In other words, the employee is entitled to recover damages or losses he has suffered, but the extent of those losses depends on whether he has taken reasonable steps to avoid their unreasonable accumulation. See Red Deer College v. Michaels, supra.

¶ 40      There is no doubt that the duty of the employee to take steps to mitigate his damages applies in all wrongful dismissal cases. The question to which I now turn is whether or not Ross took those steps and whether they were reasonable. Before doing so, however, it is appropriate to say that the authorities are unanimous that the burden of proof is on the employer that the employee did not act reasonably in the mitigation of his damages. See Schumacher v. Toronto-Dominion Bank, [1999] O.J. No. 1772 (Ont.C.A.) and Peterson v. Electro Sonic Inc., [2000] O.J. No. 1418 (S.C.J.).

¶ 41      I am not satisfied that Rosedale has discharged the onus of establishing that Ross failed to act reasonably in not obtaining alternate employment from and after April 15, 2002. In my view, given his physical injuries which continue to plague him, his short education and the obvious detrimental psychological impact that the dismissal has had, his meager efforts to find other employment do not constitute a breach of his duty to mitigate. In my opinion, the employer has not discharged its onus in this respect.

¶ 42      The most contentious issue respecting mitigation of damages is whether or not Ross should have accepted the offer of employment that was made by Rosedale in its letter dated May 30, 2002, to return him to his pre-injury duties at the same wage of $16.00 per hour, which would have permitted him to work 45 hours per week, on a shift which started at 3:00 p.m. and ended at 11:30 p.m. under the supervision of Jim Foster. It is now necessary to address his unwillingness to accept this offer of employment.

¶ 43      The principle relating to mitigation of damages in the employment context with respect to offers of re-employment is set out in Waddams Law of Damages (Looseleaf ed. 1998) at page 15-10:

¶ 44      In Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701, McKinlay, J. A., speaking for the Court of Appeal for Ontario, after stating that the duty to mitigate might require an employee to accept a different position with the same employer, went on to set out the factors which govern this issue:

¶ 45      This principle has been followed consistently by the Court of Appeal for Ontario since that time. See Schumacher v. Toronto-Dominion Bank, supra, Bowen Estate v. Ritchie Bros. Auctioneers Ltd., [1999] O.J. No. 4102 (Ont.C.A.). See also Peterson v. Electro Sonic Inc., supra, and in the federal sector, Chuanico v. Bank of Montreal, [2001] F.C.J. No. 1226.

¶ 46     In the matter before me, the offer of re-employment would have put Ross in the same position that he occupied prior to the dismissal and at the same salary and identical hours. No question therefore arises that the working conditions would be substantially different or demeaning which would proffer a reasonable excuse for the non-acceptance of the offer. See Mifsud v. MacMillan Bathurst Inc., supra, and Bowen Estate v. Ritchie Bros. Auctioneers Ltd., supra. However, I am of the opinion that it cannot be said that Ross acted unreasonably in turning down the offer. It is clear on the evidence, and I have so found, that he was fearful of working with Foster and Topping. He felt psychologically unsafe. Foster had made it clear that he viewed Ross' claim for Workplace Safety and Insurance Act benefits and his stated inability to resume his duties to be the sign of a malingerer. Topping, the Director of Safety, had accused him of fraud and in substance had given him an option either to resign or face a criminal charge of fraud and threatened to report the same to the Workplace Safety and Insurance Board. The evidence, also, indicates that Ross would have had to work at least for a number of hours under the supervision and in direct contact with Foster. He had been subjected to a surreptitious video surveillance with respect to his activities outside his home on April 6, 2002 without his consent and in breach of the Act. Although Ross was to perform clerical and administrative duties, I am prepared to accept, and I so find, that Foster would likely have made his working hours difficult. I believe the atmosphere was one of acrimony, and I am unable to say that Ross did not act reasonably in turning down the offer of re-employment.

¶ 47      Before the turning to the question as to the period for which Ross should be compensated, I wish to address the matter of his receipt of Workplace Safety and Insurance Act benefits which compensated him for 95% of his loss of earnings between April 15, 2002 and June 12, 2002, when they were discontinued. I agree with counsel for the employer that this must be deducted from any compensation award. See Dowsley v. Viceroy Fluid Power International Inc. (1997), 34 O.R. (3d) 57 (Ont.C.A.).

¶ 48      Nor in my opinion is Ross entitled to additional vacation pay as submitted by his counsel under the Canada Labour Code. In my view, he is entitled to receive such pay only as of April 15, 2002, but not thereafter. See Peterson v. Electro Sonic Inc., supra.

¶ 49      This leaves for consideration the question as to the length of time during which Ross is entitled to be compensated for his unjust dismissal.

¶ 50      Some adjudicators under the Canada Labour Code have taken the view that compensation should be awarded solely for the period that at common law would constitute reasonable notice of termination of the contract of employment. Other adjudicators have expressed the opinion that a matter under the Canada Labour Code should be judged in exactly the same way as unjust dismissal of employees whose terms of employment are governed by a collective agreement as between a trade union and an employer. There is no doubt that in the latter cases, an employee who has been unjustly dismissed is entitled to be compensated from the date of dismissal until the date of the arbitration award, whether or not reinstatement is ordered. In S.R. Ball, "Canadian Employment Law" (Aurora: Canada Law Book Looseleaf ed. Nov. 2002), the author at page 21-38 states that the vast majority of adjudicators are of the view that the unjust dismissal provisions of the Canada Labour Code afford similar protection in the area of security of employment as that enjoyed by employees governed by collective agreements. At page 21-70, he states that:

At page 21-76, he adds:

¶ 51      I am of the opinion that under the Canada Labour Code, as in employment that is governed by collective agreements between trade unions and employers, where the employer has wrongfully or unjustly dismissed an employee, he or she is entitled to be compensated for any and all losses of wages and other employee benefits from the date of termination until the date of the award, whether or not reinstatement is ordered. Accordingly, I am of the opinion that Ross is entitled to be paid the wages that he would have earned from April 15, 2002 to the date of this award. As it is common ground that his hourly rate was $16.00 and that he would likely have worked 45 hours a week, the calculation of the total compensation should prove no difficulty for counsel. Similarly, the amount received by Ross from The Workplace Safety and Insurance Board by way of benefits between April 15, 2002 and June 12, 2002 is a question of mathematics and easy proof.

¶ 52      In all of the circumstances, I have reached the conclusion that I should not award any interest on the compensation. However, I agree that Ross is entitled to the costs of the proceedings. Although the Canada Labour Code, does not expressly authorize an award for costs and does not contain provisions for its assessment, it appears that adjudicators do have jurisdiction to award costs. See S.R. Ball, "Canadian Employment Law", p. 21-81 to 21-82. I see no reason why costs should not follow the event, although I am firmly of the view this is not a case for an award of costs on the substantial indemnity scale.

¶ 53      Counsel for Ross has advised that his total solicitor and client costs are $15,000.00. I propose to follow the rule that has been applied in the Superior Court of Justice, namely, that it is not the function of the Tribunal when fixing costs to second-guess the amount of time that should or could have been spent to achieve the result, unless of course it is grossly excessive. In all the circumstances, I fix the costs at $6,000.00, which I consider to be reasonable on a partial indemnity scale given the length and complexity of the matter.

¶ 54      I accordingly order that Ross is entitled to recover from Rosedale his lost wages from April 15, 2002 to the date of this award, calculated on the basis of 45 hours a week at $16.00 an hour, less all monies he received from the Workplace Safety and Insurance Board by way of benefits. In addition, I order that Rosedale pay to Ross his costs of the proceedings which I have fixed at $6,000.00.

¶ 55      If counsel are unable to agree on the quantum of the compensation that I have awarded, they may make written submissions to me. I shall accordingly, retain jurisdiction of this matter for the above purpose.

QL UPDATE:  20030729