



COURT OF APPEAL FOR ONTARIO

CITATION: Gholami v. The Hospital of Sick Children, 2018 ONCA
    783

DATE: 20180927

DOCKET: C63844

Pepall, Roberts and Miller JJ.A.

BETWEEN

Dr. Amir Gholami

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

The Hospital for Sick Children, Dr. Bruce Macpherson, 
    and Dr. Mark Crawford

Defendants (Respondents/

Appellants by way of
    cross-appeal)

Chris Foulon and Behzad Hassibi, for the appellant/respondent
    by way of cross-appeal

Robert Weir and Bethan Dinning, for the respondents/appellants
    by way of cross-appeal

Heard: April 12, 2018

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated May 2, 2017, with reasons reported at 2017
    ONSC 1200, and the costs endorsement, dated June 14, 2017.

By the Court:

A.

Overview

[1]

The appellant appeals from the dismissal of his claims for damages for wrongful
    dismissal, bad faith conduct of his employer in the manner of dismissal, and defamation.
    The respondents cross-appeal, asking for damages to be quantified and ordered
    if the appellant is successful. The appellant also appeals from the costs award
    of $137,250.

[2]

The appellant claims that his employment with the Hospital for Sick
    Children (HSC) was wrongfully terminated and his professional reputation and
    career as a specialist in pediatric cardiac anesthesiology in Canada and the
    United States were destroyed by the actions of the respondents.

[3]

The main issues on appeal are whether the trial judge erred in
    concluding that the appellant was not wrongfully dismissed and whether she failed
    to provide adequate reasons with respect to issues of credibility.

[4]

We conclude that the appellant was wrongfully dismissed from his
    position at HSC, but for the reasons that follow, we are unable to determine
    the damages to which he is entitled. We also conclude that the trial judge
    erred in her treatment of the issues of bad faith conduct in the manner of
    dismissal and defamation, and we return those issues and the quantification of
    damages to a judge of the Superior Court for a trial of these issues. Although
    we regret the need to order a further proceeding in this action, we are
    compelled to reach that conclusion due to the inadequacy of the trial judges
    reasons.

B.

Factual background

[5]

From October 4, 2010 to June 8, 2011, the appellant was employed by HSC as
    an associate physician in the Department of Anesthesia and Pain Medicine (the
    Department), under a fixed-term, one-year contract. The contract was subject
    to renewal on the successful completion of various conditions.

[6]

The contract with HSC was part of the Pathway 4 licensing process,
    prescribed by the College of Physicians and Surgeons of Ontario (the CPSO),
    by which the appellant, a Canadian citizen licensed to practise medicine in the
    United States, sought to qualify to practise medicine in Canada. The contract
    with HSC was conditional on the appellants compliance with and successful
    completion of the requirements under the Pathway 4 program.

[7]

Pathway 4 allows US board-certified physicians to work in Ontario under
    a limited licence as a means to obtain full licensing in the province. Physicians
    who apply for registration in Ontario under a Pathway 4 Certificate of
    Registration are granted a conditional licence to practise. They must complete
    a one-year period of supervision and are assigned a supervisor from their
    workplace. At the end of the year, they must pass a Practice Ready Assessment
    conducted by the CPSO.

[8]

By letter dated June 15, 2010, the appellant was offered an appointment
    in the Department. For the first year, he would be considered an associate
    staff member. His re-appointment beyond one year was contingent upon successful
    completion of the first year of clinical work, a Practice Ready Assessment,
    compliance with the policies and procedures of the CPSO, and his enrollment in
    a Masters training program in clinical epidemiology.

[9]

The appellant aspired to specialize in pediatric cardiac anesthesiology.
    The offer letter provided that he would work in the Department, but that [e]very
    effort will be made to integrate you into our sub-group of cardiac
    anesthesiologists.

[10]

The
    offer was contingent upon the appellant obtaining a Certificate of Registration
    from the CPSO. In support of the appellants CPSO application, the Associate
    Chief of the Department, the respondent, Dr. Bruce Macpherson, wrote on July 2,
    2010: Dr. Gholami is a skilled anesthesiologist whose references attest to
    his strong teaching abilities, clinical skills and superb interpersonal
    abilities.

[11]

On
    October 1, 2010, the CPSO issued a restricted Certificate of Registration to
    the appellant.
[1]
He was required to practice under
    supervision, which was coordinated by Dr. Macpherson. The Certificate stated
    that it automatically expired on the happening of certain events, including:
    the supervisor notifying the CPSO of any concerns regarding the appellants
    knowledge, skill, judgment or attitude; the supervisor not providing the
    required reports, or if those reports were unsatisfactory in form or content;
    the supervisor being unable or unwilling to continue to supervise the
    appellants practice; or if the CPSO found the assessment report
    unsatisfactory.

[12]

Dr.
    Macpherson gave certain undertakings to the CPSO, including that he would
    provide the CPSO every six months with a report on the appellants performance,
    and immediately advise the CPSO of any serious issues. The appellant understood
    that if Dr. Macpherson withdrew as his supervisor for any reason, his conditional
    licence to practise would automatically expire and his employment would come to
    an immediate end.

[13]

From
    October 2010 to January 2011, the appellant worked in other areas in the
    Department. He worked from January to early April 2011 on cardiac cases under a
    preceptorship, where he was paired with various members of the cardiac team who
    assisted and familiarized the appellant with the room set-up, charting and
    specifics of cardiac surgery at HSC. During the month of May, the appellant
    pursued research studies and focused on transfusion cases outside of HSC,
    except when he returned on one or two occasions when on call.

[14]

Up
    until about the middle of May, the appellant was advised that there were no
    serious concerns with his clinical performance, although there were some
    ongoing issues about his fit within the cardiac team.

[15]

In
    his April 5, 2011 report, which mistakenly was not sent to the CPSO, Dr.
    Macpherson wrote that the appellants clinical performance has been more than
    adequate and that he is settling in nicely. Dr. Macpherson noted very
    complimentary unsolicited comments with respect to his clinical performance
    as well as his inter professional interactions, and that, according to his own
    direct observation, he found him to be technically sound, with a good
    knowledge base and a solid overall clinical performance.

[16]

The
    only comment in Dr. Macphersons report that was less than positive related to
    the appellants interaction with the Operating Room (OR) team, which Dr.
    Macpherson wrote was OK. However, Dr. Macpherson qualified this by stating
    that after talking to the appellant about his slightly more aggressive
    interactive approach to dealing with allied health care workers, he noticed a
    softening of what was occasionally perceived by some as a slightly abrupt
    approach. Dr. Macpherson concluded that he did not see this as a major issue
    and that he had no concerns about the appellants clinical performance,
    knowledge base, skill, judgment or attitude.

[17]

Some
    members of the cardiac team were highly supportive of the appellant. There
    were, however, personality conflicts between the appellant and other members of
    the team. The appellant felt he was being unfairly micromanaged; the members of
    the cardiac team with whom he clashed (including the chair of the cardiac team,
    Dr. Helen Holtby) believed he was not amenable to instruction. As a result, on
    May 12, 2011, the Chief of the Department, the respondent, Dr. Mark Crawford,
    advised the appellant that he should work in a different area within the
    Department rather than on cardiac cases. Although the appellant maintained his
    preference for cardiac cases, he said he would think about it.

[18]

Matters
    came to a head after a meeting on May 16, 2011, between the appellant and Dr.
    Crawford, during which the appellant repeated his desire to work on cardiac
    cases. He also allegedly advised Dr. Crawford that members of the cardiac
    department, including Dr. Macpherson, were jealous of and disloyal to Dr.
    Crawford. When Dr. Crawford shared this information with Dr. Macpherson on May
    17, the latter determined that he could no longer act as the appellants
    supervisor.

[19]

In
    the meantime, and undisclosed to the appellant, Dr. Crawford had been making
    inquiries of staff members, who had worked with the appellant in the OR, about
    the appellants clinical performance and personal interactions. On May 25,
    2011, Dr. Bruce Dodgson, one of the most senior cardiac anesthesiologists in
    the Department, provided his comments and highlighted an intubation error and
    two drug errors which had occurred earlier in the period when [the appellant]
    was being initiated into the cardiac anesthesia programme. In her letter dated
    May 30, 2011, Dr. Holtby wrote about her impression during the first three to
    four months of 2011. She felt that the appellants deficiencies in clinical
    skills, although relatively minor, meant he was not ready to take calls
    unsupported. She concluded that he was incapable of recognizing and taking
    responsibility for his own errors. She also commented on his abrasiveness and
    lack of collegiality.

[20]

The
    appellant was unaware of Dr. Macphersons decision to withdraw as his
    supervisor. At the first of three meetings with Dr. Crawford on May 30, 2011,
    the appellant asked again to work on cardiac cases, but Dr. Crawford maintained
    that he should work elsewhere in the Department. Later that day, the appellant advised
    Dr. Crawford that he had decided to seek employment outside of HSC and asked
    for his support. Dr. Crawford indicated that he had his full support. The
    appellant also advised that he wanted to work on cardiac cases until his
    departure, to which Dr. Crawford said they would have to see, pending the
    outcome of a departmental meeting to be held on June 15, 2011.

[21]

Later
    that same day, at the last of their meetings, the appellant was reprimanded by
    Dr. Crawford for the appellants treatment of Dr. Crawfords assistant, to whom
    the appellant had already apologized for his abruptness.

[22]

Still
    on the same day, following the reprimand, the appellant sent a strongly-worded
    email to Dr. Crawford in which the appellant stated his concern that there is
    a move underway in the department to make my continued employment here
    untenable. He went on to accuse Dr. Crawford and other members of the
    Department of unfair, discriminatory, misleading and professionally damaging
    treatment.

[23]

The
    appellant nonetheless expressed the desire to come to a resolution in a
    cooperative and rational way, that promotes goodwill and a balanced outcome
    wherein both the department and I maintain the benefits that can accrue from
    cooperation in good faith. Failing such a resolution, the appellant wrote that
    the outcome would be acrimonious, and that the result may end up damaging
    more than fixing any presently existing problems and concerns on both sides. The
    appellant wrote that he was prepared to take all the actions available to
    preserve his professional security and well-being. Not having received any response,
    the appellant sent a follow-up email on June 3, 2011.

[24]

Unbeknownst
    to the appellant, on June 1, 2011, Dr. Crawford wrote to Dr. James Wright, VP
    Medicine and Surgeon-in-Chief of HSC, about Dr. Macphersons decision to step
    down as the appellants supervisor. He also indicated the advisability of the
    appellant immediately leaving HSC because of his ruthless attempts to
    undermine relations and incite discord. Dr. Wright agreed with Dr. Crawfords
    recommendation and sought to review Dr. Macphersons cover letter and report to
    the CPSO given the great potential for legal action arising from this
    situation and having been involved in many similar situations. Dr. Wright
    instructed Dr. Macpherson to include in his report the various issues raised
    about the appellants clinical performance and personal interactions, including
    the earlier drug errors.

[25]

As
    a result, on June 8, 2011, Dr. Macpherson sent a report to the CPSO advising
    that he could no longer act as the appellants supervisor, stating that the appellant
    had clinical performance and personal interaction issues. Dr. Macpherson listed
    the two drug errors and other incidents, all but one of which had occurred
    before but were not included in the earlier April 5
th
report that he
    had intended to send to the CPSO. Dr. Macpherson concluded his report with the
    following negative summary:

In summary, Dr. Gholami has had
    concerns raised about his clinical performance by senior members of the cardiac
    anesthesia team. His interactions with other staff and allied health care
    workers have consistently been described as aggressive, hostile and
    unprofessional. His recent outburst towards our administrative staff member
    seems to be typical of his behavioural profile. His recent attempts to
    undermine my professional relationship with Dr. Crawford, [are] contrary to the
    culture and values we abide by at The Hospital for Sick Children. For the above
    stated reasons, I wish to resign as Dr. Amir Gholamis supervisor in the
    Department of Anesthesia at The Hospital for Sick Children.

[26]

On
    June 8, 2011, Drs. Crawford and Macpherson advised the appellant by letter and
    in a meeting that as Dr. Macpherson had resigned as his supervisor, his Pathway
    4 Certificate would expire and he could no longer practise at HSC. The
    appellant was given a copy of Dr. Macphersons June 8
th
report to the
    CPSO. The appellant was then walked to his locker to collect his belongings and
    escorted off the premises.

[27]

On
    June 9, 2011, the CPSO advised the appellant that his Certificate automatically
    expired on the withdrawal of his supervisor.

[28]

By
    letter dated June 10, 2011, Dr. Wright advised the appellant that his Certificate
    had expired and that he no longer fulfilled the conditions for his appointment and
    could no longer exercise any privileges, including the delivery of clinical
    services at HSC.

[29]

By
    letter dated June 28, 2011, the Chair of the Registration Committee of the CPSO
    advised the appellant that his conditional licence had expired because of the
    withdrawal of his supervisor and the issues with his performance. The Chair
    also wrote: The Registration Committee advises you that it is very concerned
    with the information provided by Dr. Macpherson.

[30]

On
    June 28, 2011, the Chair requested additional information from Dr. Macpherson
    because of the CPSOs concern about the issues raised regarding the appellants
    clinical performance. Dr. Macpherson provided further information to the CPSO by
    letter dated July 15, 2011.

[31]

On
    July 22, 2011, the appellants counsel offered that the appellant would return
    to work at HSC to complete his Pathway 4 process to mitigate his damages. No
    response was provided.

[32]

The
    appellant sought and obtained employment in July 2011 as an anesthesiologist in
    the United States. Dr. Crawford and others from HSC sent very positive letters
    of reference on his behalf.

[33]

On
    July 25, 2012, the appellant commenced an action against the respondents,
    alleging that he was wrongfully dismissed and that he had suffered enormous
    damage to his reputation and his career prospects because of the respondents
    wrongful actions, which he alleged were in breach of their contractual duty of
    good faith. He sought damages for unlawful interference with economic
    relations, inducing breach of contract, civil conspiracy, misfeasance in public
    office, defamation, and negligent and/or intentional misrepresentations.
[2]
He also sought
    damages for mental distress, arising out of the alleged bad faith manner of his
    dismissal, and punitive damages.

[34]

At
    the commencement of trial, the respondents withdrew their allegation of just cause
    for dismissal but denied that the appellant was entitled to any damages,
    contending that he had caused his own damages by refusing to accept assignments
    in other areas of the Department in accordance with the terms of his employment
    contract. They claimed that they acted reasonably, honestly and in good faith
    in accordance with their duties to HSC and their obligations under the Pathway
    4 process.

C.

the trial judges reasons

[35]

The
    trial judge dismissed the action. She found that the contract between the
    appellant and HSC did not guarantee the appellant that he would work on cardiac
    cases; it provided that he would work as an associate in the anaesthesiology
    department. She stated, at para.  41:

It was also apparent from Dr.
    Gholamis evidence that he thought that the emphasis Sick Kids placed on his
    ability to integrate into the cardiac group was unreasonable and unnecessary.
    Unfortunately, this belief and attitude influenced Dr. Gholamis decision to
    refuse the offer made by Drs. Crawford and Macpherson at the May 21 meeting.
[3]
It is apparent from the evidence that if Dr. Gholami had accepted this offer,
    Dr. Macpherson would not have felt that he was forced to resign as Dr.
    Gholamis supervisor and that if necessary another more appropriate supervisor
    could have been found to replace Dr. Macpherson.

[36]

The
    trial judge did not characterize the nature of the appellants termination as a
    wrongful dismissal from employment, nor did she make a finding that HSC terminated
    the employment contract. Rather, she found no breach by HSC of the agreement.
    She noted that when integration into the cardiac group proved impossible, he
    could still work in the Department, as required by the agreement. The
    appellants own actions had destroyed any prospect of building or re-building
    cohesive, collaborative, and/or productive relationships with his colleagues,
    and that, in the circumstances, HSC had no obligation to find the appellant
    another supervisor. She determined that all the negative effects complained of
    by the appellant could have been either entirely avoided or greatly mitigated
    if the appellant had accepted HSCs May 2011 offer to work in another group
    within the Department. She made a further finding at para. 52:

I further find that Sick Kids did
    not breach its Agreement with Dr. Gholami as the Agreement could not be
    continued because Dr. Gholami lost his Certificate. On the basis of the
    evidence, it is my view that Sick Kids acted reasonably in the circumstances
    and did make reasonable attempts to assist Dr. Gholami and to mitigate his
    damages. Unfortunately, these attempts by Sick Kids were rejected by Dr.
    Gholami.

[37]

She
    rejected the claim of bad faith and intentional harm on the part of the respondents,
    stating, at para. 45:

I agree with the submissions of
    Sick Kids that there could not have been and should not have been a guarantee
    that Dr. Gholami be assigned to cardiac cases. There was extensive evidence
    with respect to the high standards and high quality of work performed by the
    Sick Kids cardiac group in very stressful cases. I cannot find any evidence of
    bad faith on the part of any of the Defendants. Rather, I find that having
    regard to the work performed by Sick Kids, they acted reasonably in insisting
    that Dr. Gholami be properly able to integrate into the cardiac group and that
    they did make every effort to integrate him into the group. Further, when such
    integration was not possible, they advised him he could still work as an
    associate in the anaesthesiology department, which was required by the
    Agreement.

[38]

With
    respect to the defamation claim, the trial judge observed that the individual
    respondents had testified that their communications with the CPSO were truthful
    and professional and that they claimed the communications were protected by
    qualified privilege. She further noted, at para. 26, that they had also
    submitted that their comments to the CPSO were expressions of opinion, and
    were fair comment, based on facts, which were true in substance, made in good
    faith and without malice. The trial judge accepted and agreed with these
    arguments.

[39]

The
    only explicit reference to the issues and evidence in respect of the
    appellants claim alleging mental distress appears at para. 18 of the trial
    judges reasons under the heading of Dr. Gholamis Pleadings:

Dr. Gholami pleads that he
    suffered mental distress as a result of the actions of the Defendants. Dr.
    Gholami testified that he was not able to sleep, and suffered migraine
    headaches as a result of the severe stress and anxiety. There is no medical
    evidence to support this claim. He claims that he is therefore also entitled to
    moral damages against Sick Kids in the amount of $500,000.

[40]

Having
    found no breach, the trial judge did not address this issue further, nor did
    she quantify the damages.

D.

ISSUES

[41]

At
    the hearing before this court, the appellant pursued the following interrelated
    arguments:

(i)

The trial judge
    erred in finding that the appellant was not wrongfully dismissed.

(ii)

The trial judge erred
    in failing to assess the conflicting evidence regarding the renewal of the
    appellants contract.

(iii)

The trial judge
    erred in failing to find that the respondents acted in bad faith and in failing
    to address the manner of dismissal and mental distress suffered by the
    appellant.

(iv)

The trial judge
    erred in failing to address defamation.

[42]

The
    respondents cross-appeal asking that, if the appellant is successful, damages
    be quantified and ordered.

E.

analysis

(1)

The trial judge erred in finding that the
    appellant was not wrongfully dismissed

[43]

In
    our view, the trial judge erred in concluding that the appellant was not
    wrongfully dismissed. The trial judge was required to address the legal issue of
    wrongful dismissal as it had been pleaded and presented at trial. HSC defended
    this action by pleading that it had just cause to terminate the appellants
    employment. At the outset of trial, HSC withdrew its allegation of just cause
    and contended that the appellant was entitled to damages in the range of three
    to six months, subject to an argument that he had failed to properly mitigate.
    Accordingly, given HSCs concession that it terminated the appellants
    employment without just cause and without notice or pay in lieu of notice, it
    was not open to the trial judge to find that HSC had not breached the
    employment agreement. In light of these concessions and the pleadings, the only
    conclusion open to the trial judge was that HSC had wrongfully terminated the
    appellants employment.

[44]

Moreover,
    the legal basis for the trial judges conclusion that HSC did not breach the
    contract is unclear. She appears to have accepted the respondents submission
    at trial that the appellant unreasonably refused their suggestion that he work
    in another area of the Department,
prior
to the termination of his
    employment by drawing an analogy to the principle that an employee has an
    obligation to mitigate his damages
after
termination. In other words,
    the appellant was the author of his own misfortune.

[45]

If
    this were so, the trial judge erred. A failure to mitigate cannot flow from the
    appellants refusal to accept work in non-cardiac cases prior to the
    termination of his employment.

[46]

We
    also note that the trial judge made reference, at para. 52 of her reasons, to
    the fact that the agreement could not be continued because the appellant lost
    his Certificate. Where a licence is a fundamental work requirement, a licence
    revocation or the inability to obtain a licence may constitute an event of
    frustration entitling the employer to terminate the employment:
Thomas v.
    Lafleche Union Hospital
(1989), 82 Sask. R. 70 (Q.B.), affd (1991), 93
    Sask. R. 150 (C.A.) and
Cowie v. Great Blue Heron Charity Casino
, 2011
    ONSC 6357, [2012] C.L.L.C. 210-010.

[47]

However,
    in this case, the Fresh as Amended Statement of Defence does not allege that
    the employment agreement was frustrated when the CPSO revoked the appellants
    Certificate. Moreover, the respondents acknowledged in their factum that the
    legal principle of frustration was not pleaded.

[48]

In
    consequence, in light of the way this case was framed, the only relevant issues
    regarding the wrongful dismissal claim for the trial judges determination should
    have been: (1) the damages that flowed from the dismissal; (2) whether the appellant
    had an obligation to mitigate his damages under his fixed-term contract by
    finding comparable employment
following
the termination of his
    employment;
[4]
(3) whether the respondents acted in bad
    faith in the manner of the appellants dismissal of employment; and (4) whether
    the appellant suffered any damages as a result of any bad faith conduct.

(2)

Quantification of the wrongful dismissal damages
    and the renewal of the contract

[49]

The
    trial judge did not assess the appellants damages in relation to his claims
    for wrongful dismissal. The respondents in their cross-appeal submit that if
    the appeal is allowed, this court should quantify the appellants damages,
    subject to a deduction for monies earned in mitigation.

[50]

We
    agree that the trial record permits us to determine the period for which those
    damages are payable.

[51]

The
    trial judge found that the appellant and HSC entered into a contract that was
    effective for a one-year term. While not stated by the trial judge in her
    reasons, there is no dispute that this contract was for a fixed term, subject
    to renewal if certain conditions were met, specifically, the appellants
    successful completion of the year in the Pathway 4 program. The respondents
    abandoned their defence of just cause for dismissal and therefore the trial
    judge was required to consider whether any damages flowed from the dismissal.
    This in turn required a consideration of whether, prior to the dismissal, the
    contract had been renewed.

[52]

In
    reviewing the respondents pleadings and evidence, the trial judge referred to
    the renewal issue at para. 24:

The Defendants also testified that
    no misrepresentations were made to Dr. Gholami. He knew the conditions of his
    Certificate and he knew the conditions of his Agreement with Sick Kids. They
    testified that he was not given any assurances of long-term, secure or stable
    work at Sick Kids and they did not induce him to work at Sick Kids. Further,
    they denied that he was encouraged to buy a house in Toronto. I accept their
    evidence on this point.

[53]

The
    evidence regarding the parties respective versions of what occurred with
    respect to any renewal differed. The appellant submits that the trial judge was
    required to confront these inconsistencies.

[54]

The
    appellant testified that Dr. Crawford confirmed his contract would be renewed
    in response to an inquiry made on or about April 12, 2011. The appellant
    maintained that he purchased a house in Toronto on the strength of Dr.
    Crawfords assurance.

[55]

In
    addition, Drs. Crawford and Macpherson in May 2011 indicated that the appellant
    should consider working elsewhere in the Department and that his return to
    cardiac would be revisited in a year or two.

[56]

Contrary
    to the appellants evidence, Dr. Crawford testified that, while he provided
    suggestions to the appellant on various neighbourhoods, the decision to buy a
    house was the appellants alone. He denied that he had renewed the appellants
    contract because he had no authority to do so at that point when the
    contractual conditions of a successful first year and the CPSOs Practice Ready
    Assessment had not been completed.

[57]

The
    appellant acknowledged that Dr. Crawford could not waive those conditions. Dr.
    Macpherson testified that the Practice Ready Assessment involved an independent
    external review by the CPSO and was not merely a formality.

[58]

Although
    there was a conflict in the evidence, nothing turns on this. The renewal was
    conditional on a satisfactory assessment by the CPSO. Moreover, even if Dr.
    Crawford made the alleged statement, he had no authority to renew the
    appellants contract before the end of the supervisory period and the
    completion of a successful Practice Ready Assessment by the CPSO. As a result, in
    these circumstances, there could be no early renewal of the appellants
    contract by Dr. Crawford. Accordingly, the appellants wrongful dismissal
    damages should be assessed only to October 4, 2011, the end of the fixed
    one-year supervisory period.

[59]

However,
    we are not able to quantify the wages that the appellant would have received if
    he had remained employed by HSC to October 4, 2011. The trial judge made no
    finding in this regard. It is not possible on this record to calculate the
    amount of the appellants damages because of the parties evidentiary dispute
    about his bonuses.

[60]

Neither
    the parties nor the trial judge considered whether the appellant had a duty to
    mitigate his damages under this fixed-term contract.

[61]

These
    remaining issues relating to the quantification of wrongful dismissal damages will
    have to be determined at the further trial of the specific issues identified.

(3)

The trial judge failed to provide adequate
    reasons on the remaining issues of bad faith and defamation

[62]

This
    brings us to the next issue. The appellant alleges that the reasons of the trial
    judge are devoid of a meaningful explanation for her findings of fact and that
    they prevent proper appellate review. In particular, the appellant contends
    that the trial judge failed to provide adequate reasons with respect to issues
    of credibility.

[63]

Appellate
    intervention may be warranted where the insufficiency of trial reasons prevents
    meaningful appellate review. Reasons that permit meaningful appellate review
    justify and explain the result, inform the losing party why he lost, enable
    informed consideration as to whether to appeal and enable the public to
    determine whether justice has been done:
R. v. Sheppard
, 2002 SCC 26,
    [2002] 1 S.C.R. 869, at para. 24;
Diamond Auto Collision Inc. v. The
    Economical Insurance Group
, 2007 ONCA 487, 227 O.A.C. 51, at para. 11;
Dovbush
    v. Mouzitchka
, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 21-22; see also
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10-35.
    Appellate courts take a contextual and functional approach to determining
    whether reasons permit meaningful and effective appellate review.

[64]

Even
    if the reasons of the trial judge do not on their face reveal "what"
    was decided and "why" it was decided, this court is obliged to
    consider the trial record to determine if the reasons are more comprehensible
    when read in that context:
Maple Ridge Community Management Ltd. v. Peel
    Condominium Corp. No. 231
, 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras.
    30-32. This is desirable as it eliminates the expense and delay associated with
    another trial.

[65]

It
    is well-established that a trial judge is not required to reconcile or refer to
    every discrepancy in the evidence. A particular challenge arises when
    credibility findings are required but not made, or if no analysis for the
    rejection of important conflicting evidence is provided. Where a case turns
    largely on a determination of credibility, a failure to sufficiently articulate
    how credibility concerns were resolved may constitute reversible error:
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26 and
Dovbush
,

at paras. 28-29.

[66]

We
    agree that the trial judge failed to explain her findings and conclusions on
    the issues of bad faith and defamation. She simply recited the respondents
    legal position and indicated that she agreed with it. She did not resolve the
    conflicting evidence between the appellants and respondents diametrically
    opposed versions of events. Nor can we determine the basis for the trial
    judges credibility findings that were central to the determination of that
    dispute.

[67]

It
    is well-established that an employer is required to treat the employee fairly on
    the termination of employment. An employers failure to act in good faith in
    the manner of an employees dismissal can lead to foreseeable and compensable
    damages:
Honda Canada Inc. v. Keays
, 2008 SCC 39, [2008] 2 S.C.R. 362,
    at paras. 58-59. That will be the case when, for example, the employer is
    untruthful, misleading or unduly insensitive:
Wallace v. United Grain
    Growers Ltd
., [1997] 3 S.C.R. 701, at para. 98;
Honda Canada Inc.
, at para. 57
.

[68]

The
    trial judge failed to engage in a thorough analysis of the circumstances
    surrounding the dismissal.

[69]

The
    trial judge erred by focusing only on the appellants conduct and confining her
    analysis to the appellants May 30, 2011 letter. As a result, she failed to
    consider whether the respondents actions (and inactions) following the receipt
    of that letter amounted to bad faith conduct, resulting in the damages claimed
    by the appellant. Without limiting the necessary analysis, we point to the
    following examples.

[70]

The
    trial judge did not consider the timing of the dismissal. The appellant was
    told in the May 30
th
meeting that a decision would be made at a
    later departmental meeting about the appellants desire to work on cardiac
    cases until his departure. However, by that date, Dr. Macpherson had already
    made the decision that he could no longer act as the appellants supervisor.

[71]

She
    also did not consider the failure of the respondents to respond to the
    appellants letters of May 30
th
and June 3
rd
, or to give
    earlier notice of Dr. Macphersons withdrawal and the termination of the
    appellants employment, in the circumstances of this case.

[72]

Nor
    did the trial judge critically analyze Dr. Macphersons June 8
th
letter to the CPSO, which was an important component of the appellants
    allegation of bad faith conduct in the manner of his dismissal. The June 8
th
letter set out alleged problems with the appellants practical competencies,
    some of which pre-dated his earlier very positive April 5
th
report that
    Dr. Macpherson had intended to send to the CPSO. The June 8
th
letter
    stood in stark contrast to the April 5
th
report. As Dr. Macpherson
    admitted during his cross-examination, up to April 5
th
, there were
    no issues with the appellants performance that he felt should be reported to the
    CPSO, nor was the appellant told there were any serious issues with his
    performance. The serious discrepancies between these reports merited
    consideration by the trial judge.

[73]

Moreover,
    the trial judge did not consider the discrepancy between the concerns expressed
    in the June 8
th
report and the subsequent positive letters of
    recommendation by Dr. Crawford and two other members of the cardiac group, Drs.
    Igor Luginbuehl and Steven Berdock. Neither did she consider the subsequent
    assurances made by Dr. Crawford to the appellant that there were no clinical
    concerns behind the end of your appointment and that the issues were of an
    interpersonal nature in a small cardiac group.


[74]

The
    issue of Dr. Macphersons June 8, 2011 report to the CPSO is also relevant to
    the appellants claim for defamation. In her reasons, the trial judge sets out
    the respondents defence that their communications with the CPSO about the
    appellant were truthful and professional, expressions of opinion, and were
    fair comment, based on facts, which were true in substance, made in good faith
    and without malice and on an occasion of privilege. Other than those
    references, the trial judge makes no further mention of the appellants claim
    for defamation, other than to say that she agreed with the respondents
    submissions.

[75]

The
    trial judges blanket finding that the respondents did not act in bad faith is
    not adequate to dispose of the appellants claim for defamation. The June 8
th
report to the CPSO grounds the appellants defamation claim. In consequence,
    the trial judge was required to undertake some analysis of the report in the
    context of the defamation claim. She was required to determine whether it was
    defamatory of the appellant, whether it was subject to the defence of qualified
    privilege, whether it was motivated by express malice, and if so, whether the
    defence of qualified privilege and fair comment failed, and whether the
    appellant suffered any harm as a result of it.

[76]

In
    sum, the trial judge failed to refer to and critically analyze relevant
    evidence and failed to make essential credibility findings in accepting certain
    evidence on the issues of bad faith and defamation. It is not possible for this
    court to make the factual findings necessary to determine these issues on the
    existing trial record and, accordingly, we return these issues to a judge of
    the Superior Court for determination.

[77]

These
    reasons should not be interpreted as a reflection of the strengths or weaknesses
    of the issues in this case. Determination of these issues will require the presiding
    judge to properly assess afresh all the relevant evidence and to make the
    findings of fact necessary to resolve the parties dispute.

[78]

Having
    determined that a trial of the issues is required with respect to the
    allegation of bad faith conduct in the manner of dismissal and defamation, we
    make no determination of any damages that might flow in that regard. In
    considering the damages issue, the judge hearing the trial of these issues will
    have to consider whether the absence of medical evidence of mental distress is
    fatal to a claim for damages in the circumstances of this case.

F.

Disposition

[79]

For
    these reasons, we allow the appeal and conclude that the appellant was
    wrongfully dismissed. We dismiss the cross-appeal. The following issues are
    remitted to a judge of the Superior Court for determination: (1) the
    quantification of wrongful dismissal damages; (2) whether the respondents
    engaged in bad faith conduct in the manner of the appellants dismissal; (3)
    defamation; and (4) if the appellant establishes bad faith conduct and/or
    defamation, the quantification of any resulting damages.

[80]

As agreed, the appellant is entitled to his partial indemnity costs of
    this appeal in the amount of $25,000, inclusive of disbursements and applicable
    taxes.

[81]

Given that we have ordered a further proceeding on certain issues, costs
    of the trial will be in the cause. As such, there is no need to consider the
    costs, including the scale of costs,
awarded
    by the trial judge.

Released: September 27, 2018

S.E. Pepall J.A.

L.B. Roberts
    J.A.

B.W. Miller J.A.





[1]

The restricted Certificate of Registration
    applied during the supervisory period. Following the one-year supervisory
    period and successful completion of the Practice Ready Assessment by the CPSO,
    the appellant would have been eligible for a permanent Certificate to practice
    independently in the scope of practice that was assessed.



[2]
The appellant does not appear to have pursued his claim for civil
    conspiracy against the individual respondents at trial
.
    At
the conclusion of trial, he abandoned his claim
    against Dr. Macpherson for alleged misfeasance in public office. The appellant
    does not advance any appeal in respect of the dismissal of his claims for
    unlawful interference with economic relations, inducing breach of contract,
    civil conspiracy, negligent misrepresentation, or punitive damages.



[3]

Based on the record, it would appear that
    the meeting took place on May 12 and that the trial judges reference to a May
    21 meeting was a typographical error.



[4]

This is assuming that the appellant
    had a duty to mitigate in the circumstances of this fixed-term contract, which
    is not always the case: see, for example,
Howard v. Benson Group Inc. (The
    Benson Group Inc.)
, 2016 ONCA 256, 129 O.R. (3d) 677, at para. 44 and
Mohamed
    v. Information Systems Architects Inc
.,
2018
    ONCA 428, 423 D.L.R. (4th) 174, at para. 26.


