Tuesday, June 23, 2015

Small Claims Court Finds Duty to be Cowed

There are a couple of new decisions out of the Woodstock Small Claims Court, in the case of Caskanette v. Bong-Keun Choi Dentistry Professional Corporation.

The plaintiff, Tammy Caskanette, was self-represented.  The employer was represented by Pamela Krauss, an employment lawyer in KW whose cases have featured favourably in this blog before.

In many ways, the fact pattern is dime-a-dozen:  In January 2013, the employer acquired the business, with its existing employees.  Ms. Caskanette was a relatively short-service worker (fortunately for the employer), and conflicts developed between her and the new ownership.

At trial, the Deputy Judge found that the facts were essentially uncontradicted:

In May of 2013, the Office Manager met with Caskanette.
From Caskanette's perspective a woman she had rarely seen was upbraiding her with a series of complaints which had more to do with other staff than with Caskanette...The issues on Choi's list for discussion had little, if anything, to do with Caskanette, directly.  Caskanette felt trapped in a tiny room with a closed door.  Before the meeting agenda was complete, from Choi Dentistry's perspective, Caskanette exploded and in a fit of rage broke a door handle in her rush to escape the tiny room.  I do not fault Caskanette because a door handle broke.
The Choi's never seemed to understand why Caskanette became so upset during the meeting on May 24th.  The Choi's were justified in feeling, however, that this extreme reaction to the meeting was disrespectful and rude.  Caskanette at no time apologized for the behaviour.
Subsequently, the employer sought the assistance of an HR advisor to try to help alleviate growing workplace tensions, without success.

No warnings were issued at any time for any alleged misconduct of Caskanette.

But the termination came following the events of June 28th, 2013:  Caskanette's long-standing practice, with previous management, was to take off the Fridays before long weekends.  The employer acknowledges that it never expressly told Caskanette to cease that practice, but the employer distrusted her because of her claims that this was her long-standing practice (which was confirmed by other evidence).

June 28th was a Friday before a long weekend.  In advance, the employer staged a 'secret shopper' style call to Caskanette to schedule an appointment for the Friday morning, so she did so, attended the office (the decision's a little vague on the exact events), and then left.

The office manager called Caskanette and left a scripted message on her answering machine instructing her to return to work.  She did not do so until after the long weekend, at which point she was dismissed.

The employer took the position that it had just cause.

And was successful.

The employer obtained a substantial costs award:  The plaintiff had claimed $25,000, leading to a presumptive cap of $3750 for legal fees - the Deputy Judge found that the employer was entitled to that full amount, at least in part because Caskanette had raised several complicated issues, plus an additional $1250 for each of two personal defendants (represented by the same counsel as the employer, and who shouldn't have been named as parties).

Apparently the employer had made an offer to settle (for an amount not mentioned in the decision), which the Deputy Judge found made a doubling possible, but declined to fully double the costs award because of the fact that he did not consider the breakdown of the relationship to be entirely Caskanette's fault.  However, he did increase the employer's costs award to $5500, plus a modest award for disbursements, for a total costs award against Caskanette of nearly $9500.


I've noted before that self-reps are very frequently unsuccessful, but it's hard to say how much of that is because they pursue 'loser' cases (without recognizing their weaknesses), and how much of that is because a lawyer would have added value to them in the process.

This case, in my view, falls cleanly within the latter.

The Deputy Judge's decision on just cause is surprising to me, given his other findings.  Troubling.  Perhaps to the point of calling for appellate review, but the higher courts have tended to give a high degree of deference to trial judges on the point, finding that the "determination of just cause is essentially factual".  (I have my disagreements with that approach, as I've noted before.)

In light of the finding that Ms. Caskanette reasonably felt "trapped" in a "tiny room" while being "upbraided" for issues that had little, if anything, to do with her, his conclusion that the employer was justified in feeling that her furious departure from the room was "disrespectful and rude" is frankly shocking.  That's the sort of meeting conduct that used to lead to Wallace damages as a matter of course.  It was deeply inappropriate treatment by the employer, inconsistent with the employer's own implied obligations under the contract of employment, yet the implications of the Deputy Judge's conclusion is that she was obligated, as part of her employment contract, to just sit there and take it.

The Deputy Judge agreed that the employer at least shared in the creation of a hostile work environment, had failed to properly correct conduct, had not warned her.  The Deputy Judge felt that there were cultural issues in play - that the cultural background of the new ownership found it "unthinkable" to be treated by his employee in such a manner, and didn't know how to respond.

Yet, despite the fact that the employer at no time took issue with her conduct, and had itself acted in a manner which was deeply inappropriate, the Deputy Judge nonetheless found that "she should have recognized the effect of her behaviour on the others in the office and she should have apologised to Dr. Choi."

It appears to me that the Deputy Judge found that this sequence, even without the subsequent events of June 28, justified a termination for cause.

This "failure to apologize" is something we've seen once before, and something I took issue with in the past as well.

It's appropriate to look at apologies, or failures to apologize, in the face of a confrontation about the misconduct.  If my employee acts in a manner which I find inappropriate, and I bring that employee in for a meeting to discuss the issue and express my concerns about the conduct, then the failure of the employee to take responsibility is relevant to a subsequent decision to terminate.

However, I cannot just sit back and wait for an apology, and then fire because none came.

As for the 'insubordination' in not returning to work on June 28, it doesn't appear to me that she had been told, prior to June 28, that she would be required to attend.  As far as she was concerned, that was a day off for her.  It always had been.  She attended in the morning because a (fake) client had insisted upon it, but then regarded herself as able to leave.

It's likely that the employer was entitled to require her to change that practice.  But it had to communicate that change to her.  And not on the morning of.  In context, it's roughly akin to a Monday-to-Friday worker being called on Saturday and told to come in right away, and then getting fired because he or she refused to do so.

The Deputy Judge appears to have regarded the failure to attend at work, in the face of a clear direction to come in, as a clear repudiation of the employment contract.

It's an absurd handling of affairs by the employer, and reeks of a 'gotcha' tactic.  You have a strained relationship with this employee already, but you haven't disciplined her for anything.  You know she takes the Friday off before the long weekend, so rather than tell her beforehand, "Don't", you stage a secret shopper appointment and script a voice message to leave for her that day?  It's deeply incompatible with the employer's duty of good faith and fair dealing.

To get around the usual 'duty to warn', the Deputy Judge referenced a 2012 case from the Ontario Court of Appeal, in which a Manager outright refused (in writing) to deal with the president of the company.  The Ontario Court of Appeal found that, in that case, working with the president was an essential part of the job, so by refusing to do it, the employee was repudiating the employment agreement, without the need for warnings.  Made sense.

The comparison here is to the June 28 refusal to return to work.  Yet it's not the same - refusing to work on the Friday before a long weekend was not an 'essential part of the job'; she'd never done it before.  It's a very poor comparison.

It's a rare case where an employee can be dismissed without prior progressive discipline.  These facts shouldn't have gotten there.

Objective Versus Subjective Tests

The Deputy Judge uses a great deal of subjective language through the decision.  Which is quite appropriate - it looks like he's stepping into the shoes of both sides to understand their viewpoints of events.

But it's not entirely clear to me that he stepped *out* of the employer's shoes when rendering his decision.

He uses the word 'justified' several times when discussing the employer's perspective:  "The Choi's were justified in feeling, however, that this extreme reaction to the meeting was disrespectful and rude."

Here's an interesting question:  Is that a statement that they were right, and that the conduct was disrespectful and rude?  Or merely that it's understandable that they felt that way?  The reference to 'feelings' suggests that there's a subjective element there.

Likewise, when the Deputy Judge concluded that they were "justified" in determining that her actions had destroyed the relationship - a critical point in the finding of just cause - is he talking about justification in the sense of being correct, or in the sense of being understandable?

Because if it's the former, it's directly at odds with his other conclusions, throughout both decisions, that the employer shared the fault.  It's not the case that her actions alone destroyed the employment relationship.  And if it's the latter...well, that's not the test for cause.  But it's perhaps the most common error made in finding cause, asking whether or not it was reasonable for the employer to end the relationship.

Yes, by the time the termination occurred, it appears that the employment relationship was doomed, and it was probably very prudent for the employer to terminate it.  That doesn't mean that the employer had just cause.  In the absence of progressive discipline, and given that the employer had done its own part in alienating the employee, the fact that the relationship was beyond repair can hardly be said to flow from her misconduct.  It flows from a combination of the employer's actions, perhaps her own actions, and also from the employer's failure to respond appropriately to any misconduct she engaged in.

And that's not a formula for just cause, in the absence of a trail of appropriate progressive discipline.

She Who Acts As Her Own Lawyer...

The Deputy Judge said that she presented her case well.  However, he also described her as "brash, aggressive, and inclined to 'talk over' others".  In other words, exactly how a lot of people expect lawyers to act.

Some lawyers do act that way.  The virtues of the approach...well, let's just say there are different philosophies on the point.  But to some extent, it's okay for the lawyer to be the bad guy - the lawyer isn't the one standing for judgment at the end of the day, and it isn't the lawyer's character in an employment relationship that's on trial.  When a self-represented litigant stands up and argues aggressively, the way she thinks a lawyer is supposed to, there's a risk that the Deputy Judge will come to believe that this is the same manner she exhibited in the employment relationship itself.

Had she been represented by counsel, the only opportunity the Deputy Judge would have had to assess her character would have been her own examination-in-chief and cross-examination, controlled and prepped by counsel.  If properly prepped, the Deputy Judge would never have seen her argue, would never have seen her 'talk over' others, because all argumentation, objections, etc., would have been carried out by her lawyer on her behalf.

As well, she certainly pursued issues not worth pursuing, and overvalued her claim:  Personal liability should never have been sought; aggravated and punitive damages...maybe, maybe not - they're tough to get, but I can't necessarily fault her for trying; but ultimately the claim was not even worth 5 digits.


It's a pretty generous costs award to the defendants, for Small Claims Court.  We've seen the kinds of costs awards other Deputy Judges make - for instance, Kitchener's Deputy Judge Winny never doubles the award for a totally successful defendant (an approach that is legally arguable), and is usually pretty constrained in fixing the 'reasonable' fees in the first place.

But at the end of the day, it really highlights the risk of proceeding self-represented, even at the Small Claims Court.  She went self-represented because she didn't want to have to pay a lawyer, and ends up having to pay over $9000.

Final Note on Counsel

My criticisms of the decision, my doubts as to its correctness, should in no way be seen as a criticism of counsel.  The defendants' lawyer did her job, and clearly did it well.  However, it goes to highlight concerns I've expressed before about the nature of Small Claims Court and wrongful dismissal files.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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