



COURT OF APPEAL FOR ONTARIO

CITATION: Persaud v. Telus Corporation, 2017 ONCA 479

DATE: 20170609

DOCKET:
C62092

Laskin, Lauwers and Brown JJ.A.

BETWEEN

Jan Persaud and Natpak Enterprises Inc.

Plaintiffs (Appellants)

and

Telus Corporation, Telus Mobility and
    Telus Enterprise Solutions

Defendants (Respondents)

Karen Zvulony, for the appellants

Todd Weisberg, for the respondents

Heard: May 4, 2017

Appeal from the judgment of the
    Honorable Justice Benjamin T. Glustein of the Superior Court of Justice, dated
    April 5, 2016, with reasons reported at 2016 ONSC 1577
.

Lauwers J.A.:

[1]

The appellant, Jan Persaud, was employed by
    Telus Corporation. She resigned on May 19, 2004 and then sued the respondents
    for constructive dismissal, for damages for intentional infliction of mental
    suffering, and for inducing breach of contract. Her action was dismissed. For
    the reasons that follow, I would dismiss the appeal.

A.

Factual Overview

[2]

The appellant started her employment with a
    predecessor of the respondent on January 13, 1997. She worked in various
    positions, and after April 23, 2003 worked as the Java Developer on the Product
    Development team.

[3]

The appellant resigned two days after the
    resignation of her friend and mentor, Navaid Mufti, who was also her superior
    for most of her career at Telus.

[4]

I now turn to the appellants arguments on
    appeal.

B.

The constructive dismissal claim

[5]

The appellant claims constructive dismissal on
    the basis of a significant change in her working conditions, specifically an increase
    in her working hours. She also claimed there was a poisoned work environment.
    The two grounds drove her to resign. She submits that this entitled her to
    damages for constructive dismissal in accordance with the principles in
Potter
    v. New Brunswick Legal Aid Services Commission
, 2015 SCC 10,
[2015] 1 S.C.R. 500.

[6]

The trial judge agreed that either of these
    grounds could, in the right case, establish constructive dismissal. However, he
    dismissed the constructive dismissal claim for two reasons. First, he found
    that the appellant did not leave her employment because of changes to her
    working conditions. He noted, at para. 115:

I find that Persaud resigned because she was dissatisfied with
    the management of Telus, unhappy with the direction the company was taking,
    critical of the performance evaluation structure, and particularly unhappy with
    Telus' treatment of Mufti, her friend and mentor. She did not resign because of
    increased hours or a poisoned work atmosphere.

[7]

This conclusion was fatal, since, as the trial
    judge stated, at para. 35: an employee cannot claim damages for constructive
    dismissal when there is no causal link to the reason for the resignation, even
    if there has been a unilateral change to an essential claim of the contract.

[8]

The appellant argues the trial judge erred in
    law in finding the reasons for the resignation must be related to the
    constructive dismissal.

[9]

I disagree.

[10]

The requirement for a causal link between the
    breach of contract and the damages suffered by the plaintiff is an essential
    element of a breach of contract claim. It is trite law and applies in
    constructive dismissal cases. The trial judge cited the correct legal
    principles at paras. 32-34.

[11]

The appellant argues alternatively that the
    causation element could have been met had the trial judge considered it possible
    to combine the changes in working conditions with her distress at Mr. Muftis
    departure. His failure to do so was a palpable and overriding error.

[12]

I agree that such a finding was open to the
    trial judge on the evidence. But the idea that Mr. Muftis departure was the
    proverbial tipping point for her resignation was addressed by the trial judge
    at para. 117, and he dismissed it on the evidence. The appellant has not
    demonstrated that he made a palpable and overriding error in doing so.

[13]

The trial judges second ground for dismissing
    the constructive dismissal claim is that the appellant acquiesced in or
    condoned the changes in her working conditions, particularly the increased number
    of hours she was required to work.

[14]

If an employee consents to or acquiesces in the
    change to an essential term of the employee contract, it will not amount to a
    constructive dismissal:
Potter
,
at para. 37.
    The case law recognizes that an employee faced with a unilateral change by an
    employer in the essential working conditions is to be given some time to notice
    the change and then to consider how best to respond. The trial judge set out
    the principles of law at paras. 39-42 of his reasons, and concluded, at para.
    43:

An employee is entitled to a reasonable period of time to
    assess his or her circumstances and make an election. However, a considerably
    extended period of time will preclude an action for constructive dismissal. In
    most circumstances, courts will view an employee's willingness to remain in the
    altered position for a significant period of time as acceptance of the new
    terms, absent other mitigating factors. [Citation omitted.]

[15]

There is no legal error in this statement.

[16]

The trial judge assessed the evidence regarding the
    appellants workload at para. 98 and following. The evidence shows that the
    appellant was under increased workload demands from 2002 until her resignation
    in May 2004. There is no doubt that she raised the issue of workload on a
    number of occasions and actively sought a transfer out of the Product Development
    team to a position that would be less demanding.

[17]

Counsel points out that one of the appellants
    coworkers resigned in the spring of 2003 and was not replaced until September
    2003. The appellant was responsible for training the coworkers replacement,

Santhalingam Jeyagaran ("Jey").
The
    appellants evidence was that Jeys hiring did not permit her to reduce her
    working hours, as she expected. Counsel argues that after Jeys training was
    complete in November or December 2003, it was appropriate for the appellant to
    have a period of time within which to evaluate the situation.

[18]

It was open to the trial judge, on the evidence,
    to reach that conclusion, but he did not, in part because the appellant
    remained silent on the workload issue between January 2004 when she requested a
    transfer and was refused, and the date of her resignation in May. The trial
    judge found that the reason for the appellants departure was not the
    employers failure to address the workload issue, but her own evidence, which
    he describes in paras. 112-13:

Persaud's evidence was that she "would have stayed"
    if Mufti had not left and otherwise "gone to IT" if that "wasn't
    an option".

Persaud's evidence in cross-examination on this question
    changed each time she was asked. She first said she would have stayed if Mufti
    had stayed, because her concerns of additional workload would not have arisen.
    When asked to confirm that she would have stayed if Mufti had stayed, she
    answered "absolutely", but then paused and added that she would have
    wanted a transfer to the "IT Group".

[19]

I see no palpable and overriding error in the
    trial judges evaluation of the evidence on this point nor in his conclusion
    that the workload issue had gone on long enough to establish that the appellant
    had condoned it.

C.

Intentional Infliction of Mental Distress

[20]

The trial judge summarized the law relating to this
    tort at paras. 138-39:

The required elements of the tort of intentional infliction of
    mental suffering are (i) the conduct was flagrant and outrageous; (ii) the
    conduct was calculated to cause harm; and (iii) the conduct resulted in a
    visible and provable illness or injury.

With respect to the second requirement that the conduct is
    calculated to cause harm, the defendant must intend to cause such harm, or,
    such harm must be known by the actor to be substantially certain to follow from
    his or her behaviour. As an intentional tort, this element cannot be satisfied
    on an objective standard of "reasonable foreseeability" or
    "recklessness". [Citations omitted.]

[21]

After the appellants departure, some software
    glitches appeared in the program for which she was primarily responsible. Her
    successor, Jey, led an investigation into the glitches. His report concluded
    the glitches were the product of sabotage. The report pointed the finger at
    either the appellant or Mufti.  A copy of the report was delivered to the
    police but no charges were laid.

[22]

The appellant says that Jeys report was
    incompetently done, since Jey was not an expert. She submits he had an interest
    in the outcome. She complains that she was not interviewed as part of the
    investigation. She asserts that it was not technically possible for her to have
    been the saboteur. She did not, however, tender an expert report to that effect.

[23]

Following a lengthy recitation of the evidence,
    the trial judge concluded, at para. 204, that there is no basis to find that
    Telus acted in bad faith or in an unfair manner, or engaged in any conduct
    that was flagrant and outrageous. The investigation was prompted by a
    serious breach of its IP Biller/Collector system causing a loss of significant
    revenue (at para. 205) and further, the trial judge concluded that Telus had
    a good faith basis to conclude that Persaud was the author of the sabotage (at
    para. 207). He did not, however, make a finding that the appellant was in fact
    the saboteur, assuming there was one.

[24]

At para. 208, the trial judge said, I do not
    accept the plaintiffs submission that the Report can be said to be in bad
    faith or outrageous simply because Telus did not seek external consultants or
    did not contact Persaud before preparing the Report. Finally, he said that,
    even if the conclusions in the report were wrong (an issue I do not decide),
    the conduct by Telus would be, at worst, an honest mistake (at para. 209).
    His review of the evidence substantiated his conclusion, expressed at para. 142,
    that 
neither of the first two requirements to establish the tort of
    intentional infliction of mental suffering (
i.e.
, flagrant or
    outrageous conduct or intention to cause harm) was established on the facts of
    this case.

[25]

The appellant has not established that the trial
    judge made an error of law, or a palpable and overriding error in his
    evaluation of the facts.

D.

Inducing Breach of Contract

[26]

The trial judge set out the principles of law
    relating to this cause of action at paras. 212-14. Four elements must be
    established by the plaintiff:

1.

T
he defendant had knowledge of the
    contract between the plaintiff and the third party;

2.

The defendant's conduct was intended to cause the third party to
    breach the contract;

3.

The defendant's conduct caused the third party to breach the
    contract; and

4.

The plaintiff suffered damages as a result of the breach.

See
Correia v. Canac Kitchens
, 2008 ONCA 506,
    91 O.R. (3d) 353, at para. 99;
1670002 Ontario Limited (Canadian
    Professional Recruiters) v. Redtree Contract Carriers Ltd.
, 2014 ONCA 501,
    323 O.A.C. 128, at para. 14.

[27]

In January and February 2005, an outfit called
    TekSystems had an opportunity to provide services to Telus in Edmonton. The
    proposal was that the appellant would do the work and provide her services through
    her consulting company, Natpak. The appellant was interviewed by telephone by
    Telus representatives from Edmonton. There was a subsequent exchange of
    material with TekSystems working towards a contract between TekSystems and Natpak.
    The appellant signed the agreement but there is no evidence that TekSystems did
    so. In mid-February, the appellant was advised by TekSystems that Telus had decided
    not to engage her services on the Edmonton project.

[28]

The trial judge noted, at para. 237, that the
    appellant, who had the onus of proof, chose not to call a witness from
    TekSystems or Telus on this issue. He found, at para. 229, that the evidence
    does not support the appellants assertion that there was a valid and
    enforceable contract as signed terms were offered and accepted orally. He added,
    at para. 239: 
Even if the first two elements of the tort of inducing
    breach of contract could be established (
i.e.
there was a contract
    between Natpak and TekSystems and Telus knew of it), the plaintiffs have not
    proven that Telus intended to cause the breach of the contract.

[29]

The trial judge made no error of law in his
    specification of the legal test, nor did he make a palpable and overriding error
    in his assessment of the evidence.

E.

Disposition

[30]

The appeal is dismissed with costs payable by
    the appellant to the respondent in the amount of $15,000, inclusive of
    disbursements and taxes.

Released: PL JUN 09 2017

P. Lauwers J.A.

I agree. John Laskin
    J.A.

I agree. David Brown
    J.A.


