Keays v. Honda Canada Inc.
Between
Kevin Keays, plaintiff, and
Honda Canada Inc. operating as Honda of Canada Mfg.,
defendant
[2005] O.J. No. 1145
Court File No. 00-B1968
Ontario Superior Court of Justice
J.R. McIsaac J.
Heard: March 31, April 1-4, 7, 9-11, 16-17, 28, June
9-11, September 29-30, October 1, 3, December 15-19,
2003, April 13-16, 19, October 26, 2004.
Judgment: March 17, 2005.
(69 paras.)
Damages — Wrongful dismissal — Exemplary or punitive damages — Employment law — Termination of employment — Wrongful dismissal — Reasonable notice period or wages in lieu — Human rights law — Discrimination — Context — Employment — Dismissal — Grounds — Mental or physical disability.
Action by Keays against Honda Canada for damages for wrongful dismissal. Keays began working at Honda in 1986, but started to suffer from chronic fatigue syndrome shortly thereafter, although this disability was not diagnosed until 1997. Keays was dismissed after refusing to see Honda's physician following more than a year of disagreement over the severity of Keays' disability. Initially, Keays was an exemplary employee in all respects other than attendance, receiving special computer training that he was expected teach to Honda technicians across Canada. The illness worsened, however, and from 1996 to 1998, Keays was off work and in receipt of disability benefits. He returned to work in late 1998 after his long-term disability benefits were cancelled. When Keays again began to experience absences from work, Honda advised him to apply for a program that exempted employees from attendance-related progressive discipline. The program, however, was unsuitable for CFS sufferers and was counterproductive for Keays, as it required each absence to be medically validated, and required the disability to be medically confirmed prior to a return to work. The program also required Keays' physician to estimate how often Keays would be absent from work. When Keays began to absent himself more frequently than estimated, Honda demanded that he see a company physician. Keays consented, but claimed that the physician threatened to move him back to the production line. Keays subsequently retained counsel to assist him in his dealings with Honda. The company, however, ignored a conciliatory letter dated March 16, 2000, and instead demanded on March 28th that Keays see another company physician, falsely claiming that both company physicians believed that his absences were unjustified. Keays demurred, requesting more information on the parameters of the examination. When Honda refused to provide further detail and Keays continued to refuse to meet the doctor, he was terminated the following day.
HELD: Action allowed. Keays was awarded damages based on a 24 month notice period. He was also awarded $500,000 in punitive damages. His employment was terminated to avoid the duty to accommodate him. Honda's request that Keays meet with the second physician was not made in good faith. The company's refusal to clarify the reason for the request was not reasonable. Keays' refusal to comply without further detail was reasonable, given the company's confrontational attitude. Keays had sought to reach a mutually satisfactory resolution to the difficulties caused by his disability, but had been ignored. The termination was not a proportionate response to Keays' insubordination. Keays was a longstanding employee, and the insubordination was neither morally suspect nor disrespectful. The refusal was motivated by a legitimate concern that his rights were being violated, and had no effect on Honda's business. Keays was entitled to 15 months notice based on his service and circumstances. The notice period was extended despite Keays' modest managerial position due to Honda's flat corporate structure that sought to erase any distinction on hierarchical principles. Keays was also entitled to a further nine month increase in the notice period due to Honda's bad faith. Keays was required to struggle for any accommodation extended to him due to the invisible nature of his disability. Honda's strict requirements that he justify his absences, its suggestion that Keays' apply for an essentially phantom program, its subsequent refusal to remove from Keays' file the disciplinary letter that prompted the suggestion, the treatment of Keays by Honda's physicians, and his termination constituted discrimination and harassment of a long-serving employee. Honda's conduct was sufficiently outrageous to justify punitive damages in the amount of $500,000.
Statutes, Regulations and Rules Cited:
Ontario Human Rights Code, s. 41(1)(b)
Ontario Rules of Civil Procedure, Rules 4.03(2), 6.03(7)
Counsel:
Hugh Scher, for the plaintiff.
J. Daniel Dooley, for the respondent.
QL UPDATE: 20050407
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